Amicus Curiae Brief — Scheidler v. National Organization for Women, Inc.

———___

upreme Court. S

FiLeEp

IN THE | nae

FEOF THE CLERK

Supreme Court of the Binited inte

JOSEPH SCHEIDLER, ANDREW SCHOLBERG, TIMOTHY MURPHY,

and THE PRO-LIFE ACTION LEAGUE, INC.,

Petitioners,

Vv

NATIONAL ORGANIZATION FOR WOMEN, INC., ef ai.,

Respondents.

OPERATION RESCUE,

Petitioners,

Vv

NATIONAL ORGANIZATION FOR WOMEN, INC., ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF AMICUS CURIAE OF CONSISTENT LIFE,

THE CATHOLIC-LABOR NETWORK, CITIZENS UNITED

FOR ALTERNATIVES TO THE DEATH PENALTY,

THE CONFERENCE OF MAJOR SUPERIORS OF MEN,

INTERFAITH WORKER JUSTICE, THE LEADERSHIP

CONFERENCE OF WOMEN RELIGIOUS, PEOPLE

FOR THE ETHICAL TREATMENT OF ANIMALS,

SOJOURNERS, DANIEL BERRIGIAN, WILL DAVIS

CAMPBELL, CAROL CROSSED, THOMAS GUMBLETON,

KATHY KELLY, RACHEL MACNAIR, HELEN PREJEAN,

MARTIN SHEEN, HOWARD ZINN, STEPHEN ZUNES ET AL

IN SUPPORT OF PETITIONERS

EDWARD MCGLYNN GAFFNEY, JR.

Counsel of Record

Valparaiso University School

of Law

656 S. Greenwich Street

Valparaiso, IN 46383

(219) 465-7860

[Additional Counsel Listed on Inside Cover]

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 - WasHiNGTON, D. C. 20001

oa ~

JOSEPH MATHIAS COSGROVE

Counsel for Martin Sheen

1460 Wyoming Avenue

Forty Fort, PA 18704

(570) 823-9078

JEFFREY S. KERR

General Counsel

People for the Ethical

Treatment of Animals, Inc.

501 Font Street

Norfolk VA 23510

(757) 622-7382

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..............c:cccccsscceeseeeeeeeeeeees ill

INTEREST OF THE AMICT CURIAE ........ccccceceeeeeeeees |

SUMMARY OF ARGUMENT..........ccccccceesseeeeeeeeseeenees

PATIENT sccccccrssesccsesersscescesensentesseninsseti seheneindaneiindé 4

1. The Hobbs Act and RICO should not be

- misused against civil rights protesters by their

Political AdVETSATIES ............:eeceeeceeeeeeeeeneeeneenees 4

A. “Uninhibited, robust, and wide open”

speech on public issues leads frequently to

many forms of protected communicative

activity, including leafleting, picketing,

demonstrations, sit-downs, sit-ins, and

BODIES ..cccccccccessconcssscsnosescosscossososoosesovooosooes 4

B. First Amendment concerns about the

demonstrations at issue in this case require

the “precision of regulation” mandated in

Claiborne Hardware (1982), not the

sweeping national injunction authorized

under Milk Wagon Drivers (1941)........:2++++ 9

C. The practical effect of the interpretation of

the Hobbs Act by the court of appeals is to

sideline or trivialize the very crimes—

robbery and extortion—that Congress

deliberately inserted into the statute, and to

federalize the very crime—coercion—that

Congress deliberately excluded from the

CRI cccccctccensiscctqnenndecenccsncensceseniampattnnreeeaneces 16

D. Congress never intended RICO to apply to

CiVE] PFOLESIETS.........00..ccccscccscrereresersesesverseees 19

il

TABLE OF CONTENTS—Continued

The interpretation of the Hobbs Act by the

court of appeals is irreconcilable with the

structure of the United States Constitution and

with Arwen can constitutional history ................

A. We, the People, retain the right to engage

in vigorous protest against governmental

ee ee ee

B. The lower court’s view of the Hobbs Act

and RICO is irreconcilable with the long

history of social protest in this country .......

The court of appeals improperly perpetuated a

nationwide injunction against unpopular civil

protesters for a full two years after this Court

had ordered the injunction vacated....................

A. “The injunction must necessarily be

vacated.”

ehhh

Page

21

21

24

26

$3 &

iii

TABLE OF AUTHORITIES

CASES Page

AFL v. Swing, 312 U.S. 321 (1941).......ccccceeeeeeeeees 11

Amoco Production Co. v. Village of Gambell,

TE 17

Baltimore & Ohio R.R. v. United States, 279 U.S.

Be 30

Brown v. Board of Education, 349 U.S. 294

(| 27

Cafeteria Employees Union Local 302 v.

Angelos, 320 U.S. 293 (1943) ......ccc-ecereeseeeeeees 11

Carroll v. Princess Anne, 393 U.S. 175 (1968) . 11, 12, 27

Garner v. Louisiana, 368 U.S. 157 (1961)............ 12

Green v. School Bd., 391 U.S. 430 (1968) ............ 27, 30

Hague v. CIO, 307 U.S. 496 (1939) .......cccceeeeeeees 6

Healy v. James, 408 U.S. 169 (1972) .....-.-.cceceereeee 15

Milk Wagon Drivers v. Meadowmoor Dairies,

CO EE 11,12, 13

Missouri v. National Organization for Women,

620 F.2d 1301 (C.A. 8 1980), cert. denied, 449

I ________ 6, 12

NAACP v. Claiborne Hardware, 458 U.S. 886

( 4, 9, 10, 11, 12, 13, 14, 15

New York Times Co. v. United States, 403 U.S.

OS EES———————— 28

Niemotko v. Maryland, 340 U.S. 268 (1951)......... 6

Planned Parenthood v. Casey, 505 U.S. 832

OS ——————————————E 22

Reynolds v. United States, 98 U.S. 145 (1879)...... 6

Roe v. Wade, 410 U.S. 113 (1973) ........cccccceeereereee 7, 22-23

In re Sanford Fork & Tool Co., 160 U.S. 247

(| a 30

Scheidler v. NOW, 537 US. 393

A 14, 17, 18, 19, 23, 28

iV

TABLE OF AUTHORITIES—Continued

Page

Shuttlesworth v. City of Birmingham, 382 U.S.

Be Cee crrsssstanssemapeimeneneinibbgaiinasbianenes 12

Shuttlesworth v. City of Birmingham, 394 U.S.

SF Ge ccnressematnennscesscsirertnmntientdanibieininantie 6, 12

Teamsters Local 796 v. Newell, 356 U.S. 341

(REIT xiensssnerasnssiintiennnansemnnstuscssiiiiintnabauindaneatinaiaietes 11

Terminiello v. City of Chicago, 337 US. |

GEE coneninaresemnnicnecseneneniemmasaptinnsaiiiipasnindienen 6

United States v. Robel, 389 U.S. 258, 265 (1967).. 15

Youngdahl v. Rainfair, Inc., 355 U.S. 131

IDE ansasnecnsibiniindscnninpuuentnniaainuiieianmmasivinge 11

STATUTES

Freedom of Access to Clinic Entrances Act, 18

ise OF GUID connnnensnencnenennemntneneatemnentinssenens 28

Hobbs Act, 18 U.S.C. § 195 1(a)...0.......ccceceeeeeeeees passim

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. §§ 1961-1968 0.0. passim

OTHER AUTHORITIES

Brief Amici Curiae of the American Civil

Liberties Union and the National Organization

for Women, in NAACP v. Claiborne Hard-

ware, 458 U.S. 886 (1982) (Dec. 24, 1981)

O.T. 1981, No. 81-202.................. 4, 7-8, 12, 13, 14, 16

Taylor Branch, Parting the Waters (1988)............ 26

Brian Murray, “Protesters, Extortion, and

Coercion: Preventing RICO from Chilling

First Amendment Freedoms,” 75 NOTRE DAME

Ben es Ge Ga conemensnnenstnsemutidbiiammnne 20

John T. Noonan, Jr., The Lustre of Our Country:

The American Experience of Religious

BRIEF AMICUS CURIAE OF CONSISTENT LIFE, et al.

INTEREST OF AMICI CURIAE

Amici' are civil rights organizations, environmentalists,

animal protection advocates, political groups, groups support-

ing organized labor, voluntary associations or persons who

(1) are committed to principles of nonviolent direct action on

a wide range of social issues, (2) do not condone the use of

violence as a legitimate form of social protest, and (3) do not

necessarily agree with the substantive views of the petitioners

about abortion (some do, some don’t, and some take no

position).

Each of these aspects about the amici merits further elabo-

ration. On the first and second points, we repeat that we do

not engage in violence or encourage others to do so. Although

amici are aware that allegations of violence of varying de-

grees have arisen in this litigation, we do not condone such

violence in any way, but participate in this brief due to our

deep concerns over the legal issues that have arisen.

The lead organization—Consistent Life—is a network that

promotes a consistent life ethic, focusing on connections

among many issues concerning human life, including war,

abortion, poverty, racism, the death penalty and euthanasia,

and repudiates all forms of violence. Some of the amici

organizations focus their energies on one or another issue

without taking a stand on all other issues. For example,

Citizens United for Alternatives to the Death Penalty focuses

on capital punishment and does not have an official policy on

animal rights. People for the Ethical Treatment of Animals

focuses on the view that “animals are not ours to eat, wear,

experiment on, or use for entertainment,” but does not es-

pouse a view about the death penalty.

' Pursuant to Rule 37.6 of the Rules of this Court, emici state that no

counsel for a party has authored this brief in whole or in part and that no

person or entity, other than amicus curiae, its members, or its counsel, has

made a monetary contribution to the preparation or submission of this brief.

2

On the third point it is enough to say that although some of

us disagree strongly with the substantive views of the peti-

tioners about abortion or with the methods they employed in

the 1980s to demonstrate their opposition to abortion, all of

us disagree with the respondents’ litigation strategy of reli-

ance upon civil RICO against civil protesters. Amici are

interested in a prompt disposition of this case because the

misapplication of the federal Racketeer Influenced and Cor-

rupt Organizations Act [RICO]-exposes us to enterprise

liability with staggering penalties (treble damages, attorney

fees, nationwide injunctions of long duration) whenever two

of more supporters of any of the organizational amici (who

need not be members of the sponsoring body or community)

act in a manner deemed by a federal judge to constitute “acts

or threats of physical violence to any person or property.” Pet.

App. 28a.

The lower court’s misreading of the Hobbs Act places all

social protesters in grave financial jeopardy if any of their

supporters engage in conduct vaguely defined as a “threat to

property affecting interstate commerce.” Judicial imposition

of vicarious liability because of the acts of loosely connected

supporters of various causes is at odds with the text of both

the Hobbs Act and RICO, the history surrounding the adop-

tion of these statutes, and the broader social history of unin-

hibited protest in this country.

The novel reading of the Hobbs Act offered by the court of

appeals—that the statute does not require any proof of either

robbery or extortion, the two crimes specified in the Hobbs

Act—tepreseits a profound threat to Americans who love this

country enough to want to change social policies they deem

to fall short of the capacity of our society for human compas-

sion and social justice.

SUMMARY OF ARGUMENT

Judicial imposition of vicarious liability because of the acts

of loosely connected supporters of various causes is at odds

with the text of both the Hobbs Act, 18 U.S.C. § 1951(a), and

3

the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. §§ 1961-1968, and the legislative history

surrounding the adoption of these statutes. Neither statute

should be misused against political and labor protesters.

The misreading of the Hobbs Act by the court of appeals—

effectively rewriting the statute to delete the two crimes

specified in the text, robbery and extortion—places all social

protesters in grave financial jeopardy if any of their support-

ers engage in conduct vaguely defined as a “threat to property

affecting interstate commerce.” This unfounded interpretation

is wrong for another reason: it leaves the statute sounding like

the federalization of the crime of coercion, which is precisely

what Congress chose not to do when it enacted the Hobbs

Act.

In addition to being wrong in its reading of the Hobbs Act,

the court of appeals was also wrong in applying RICO to civil

protesters, a result never intended by Congress. The Court

need not review the entire legislative history of RICO to

search for isolated sentences in a committee report or a floor

debate. It is enough to look carefully at the text of the statute,

and compare it with the preexisting bill to recognize that the

law signed by President Nixon by no means sought to sweep

civil protesters within its scope.

The broader social history of uninhibited protest in this

country confirms this view of the Hobbs Act and RICO as

well. This history confirms that the People retain the right to

engage in vigorous protest against a wide variety of govern-

mental policies, and in a variety of forms of direct action,

including leafleting, demonstrations, picketing, sit-downs, sit-

ins, and boycotts. Real struggles in our past could have had a

very different outcome if the novel interpretation of the

Hobbs Act and RICO had been around when these events

occurred.

The reading of the eran fective grace Sn carve ed

appeals represents a profound threat to Americans e

this country well enough to confront social policies they

4

deem to fall far short of the capacity of our society for human

compassion and social justice.

ARGUMENT

I. The Hobbs Act and RICO should not be misused

against civil rights protesters by their political

adversaries.

A. “Uninhibited, robust and wide open” speech on

public issues leads frequently to many forms of

protected communicative activity, including

leafleting, picketing, demonstrations, sit-downs,

sit-ins, and boycotts.

After nearly two decades of litigation related to one of the

most contentious issues in our society, the parties before the

Court might be imagined to share little common ground. But

the truth is that they share much in common. The abortion

issue that divides them is a profound disagreement, one

that both sides take with great seriousness. The three points

we discuss below are all profound truths, and we think it

signi. cant that petitioners and respondents agree about these

truths. Hence, before turning to matters in contention, we

emphasize at the outset the things that unite the petitioners

and respondents.

First, both parties believe that the life of the mind cannot be

stifled or controlled by politicians. For example, NOW ar-

gued in a brief amicus curiae filed in this Court in NAACP vy.

Claiborne Hardware, 458 U.S. 886 (1982): “Protection of

Political Speech and Association Is Central to the First

Amendment.” O.T. 1981, No. 81-202, Brief Amici Curiae of

the American Civil Liberties Union and the National

Organization for Women, (hereafter: “NOW Amicus Brief in

Claiborne Hardware”), 1981 WL 390220. We offer two ex-

amples from American history of the illusory character of any

system of attempted thought control. First, King George III

and his Parliament could not satisfy the yearning of the

American colonists for self-governance by telling them that

they should be content with the idea of “virtual representa-

5

tion,” or that they should put all thought of rebellion out of

their mind. From the period of the Stamp Act to the founding

of the republic, our colonial forebears understood that taxa-

tion without representation is tyranny, and when the time

came to declare their independence from the mother country,

they stated candid reasons that impelled them to the separa-

tion, producing the most famous list of grievances in the

eighteenth century, the Declaration of Independence. | Stat. |

(1776). Second, the men who governed this country from the

dawn of the republic were equally unpersuasive when they

told women that they should be satisfied with the political

arrangements in this country at the outset because the men

provided “virtual representation” for the women. If women

were content with this way of thinking, they would still not be

voting or serving in public office or on this Court or on juries

throughout the land. The reality is that from the founding

period to the present, women have known that virtual repre-

sentation” of women by men is as illegitimate as virtual

representation of the colonists by their imperial superiors in

Westminster. And when in 1848 American women organized

collectively to share their convictions about their experience

as a colonized people, they articulated the most famous

nineteenth-century list of women’s grievances known as the

Deciaration of Sentiments of Seneca Falls. Both of these

examples illustrate that thought cannot be controlled. The life

of the mind cannot be contained. Freedom of speech matters.

Both petitioners and respondents subscribe to these funda-

mental propositions about civil liberty.

Second, both sides agree that it is not enough to protect

only the life of the mind, or only “pure speech.” \deas have

consequences. They can trouble people’s consciences, awaken

an awareness, and become a clarion call to action. Hence it is

not enough in a free republic that ideas alone or “pure

speech” alone must be protected. It is also necessary to

protect communicative action. The text of the First Amend-

ment itself acknowledges this by expressly securing the

6

natural right of the people not only to freedom of speech, but

also freedom to assemble peaceably. The same amendment

protects the free exercise of religion, which James Madison

understood to be profoundly different from mere toleration of

the theological ideas of dissenters. See, e.g., John T. Noonan,

Jr., The Lustre of Our Country: The American Experience of

Religious Freedom (1998). Just as this Court has overcome

the false start in earlier free exercise cases that divided reli-

gious belief and action too categorically, compare e.g., Rey-

nolds v. United States, 98 U.S. 145 (1879), with Sherbert v.

Verner, 374 U.S. 398 (1963), so too it has clarified in a host

of cases that the Free Speech Clause protects not only utter-

ance itself, but also a wide variety of communicative acts,

such as leafleting, picketing, demonstrations, sit-downs, sit-

ins, and boycotts. See, e.g., Hague v. ClO, 307 U.S. 496

(1939); Terminiello v. City of Chicago, 337 U.S. 1 (1949);

Niemotko v. Maryland, 340 U.S. 268 (1951); Shuttlesworth v.

City of Birmingham, 394 U.S. 147 (1969).

Third, both sides not only agree with these ideas. They

both put these ideas into practice regularly. For example,

NOW testifies regularly before Congress and State legisla-

tures On issues important to its constituents, and has for dec-

ades engaged in a variety of public expressive acts such as

marches, demonstrations, and boycotts. While the Equal Rights

Amendment was pending, NOW organized a nationwide

boycott involving several hundred church groups, profes-

sional associations, women’s organizations, and civil rights

groups that agreed not to hold their meetings or conventions

in states that had not ratified the proposed amendment. Two

State attorneys general sued NOW, seeking declaratory and

injunctive relief against the organization for its role in

promoting the “ERA boycott.” NOW successfully defended

the right to engage in such activity. Missouri v. National

Organization for Women, 620 F.2d 1301 (C.A. 8 1980), cert.

denied, 449 U.S. 842 (1980). Similarly, the petitioners are not

content to leave their ideas about abortion at a purely theoreti-

7

cal level, but take their convictions to the public through

participating in an annual march and demonstration on Janu-

ary 22, the anniversary of this Court’s decision in Roe v.

Wade, 410 U.S. 113 (1973). And in the early 1980s they

formed the “Pro-Life Action Network” (PLAN), a loosely

organized coalition of persons, many of whom participated in

the demonstrations in front of abortion clinics that are the

underlying subject of this litigation.

Like petitioners and respondents, amici are divided over

the abortion issue. Like them, we are in complete agreement

with one another and with the parties about the three points

discussed above. We could find no better way to underscore

this accord than by stating our agreement with the following

propositions articulated by NOW as the headings in the

amicus brief that it submitted to this Court in NAACP v.

Claiborne Hardware; 458 U.S. 886 (1982):

I. A Civil Rights Boycott Is At the Core of First

Amendment Protection.

A. A Civil Rights Boycott Is A Form of Political

Speech and Association. .

B. Protection of Political Speech and Association Is

Central to the First Amendment.

ll. Civil Rights Boycotts Should Not Be Judged as

Common Law Conspiracies.

A. Imposing Liability On An Individual Solely Because

of Political Association With Others Violates the First

Amendment.

B. An Injunction That Prohibits Advocacy and

Picketing Is An Impermissible Prior Restraint and An

Unconstitutionally Overbroad, Content-Based Restric-

tion on Speech.

C. The Meadowmoor Case No Longer Expresses a

Constitutionally Viable Principle.

Ill. Illegal Conduct By Boycott Participants Can Be

Controlled Under Traditional Common-Law Principles

of Personal Responsibility Without Employing The

Conspiracy Doctrine.

8

IV. Limiting the Power of A State To Suppress Civil

Rights Boycotts Is Not Inconsistent With the Principle

That Federal Civil Rights Laws and Remedies Should

Be Broadly Construed.

NOW Amicus Brief in Claiborne Hardware, 1981 WL

390220.

From our perspective as activists on a host of contentious

issues in America, these principles articulated by NOW in

1981 seem preferable to the strategies later adopted by the

respondents in this litigation with the petitioners.

Finally, we are acutely aware that this case involves allega-

tions of violence. We have already indicated our views on

this matter in the statement of interest, and several amici do

so with greater specificity in their statements in Appendix A.

But it bears repetition that amici are united in our commit-

ment to principles of nonviolent direct action on a wide range

of social issues and in our resolve not to encourage or

condone the use of violence as a legitimate form of social

protest.

We take this moral stand for two reasons. First, we realize

that direct action is often necessary to awaken the conscience

of the nation to injustice within our society. For example, the

abolitionists did so for three decades prior io the Civil War.

Women were a prominent part of that movement, and had to

sustain their own movement of direct action to awaken our

country to the injustice of excluding women from voice or

vote. Even though emancipated, African Americans endured

a brutal pattern of systematic discrimination in housing,

employment, schooling, and the franchise; and they under-

took a massive campaign of direct action to overcome these

injustices. Even enfranchised, women were still subjected to

unequal treatment in the laws and policies of the nation; and

they undertook a massive campaign of direct action to

overcome these injustices.

Second, we have been shaped by the commitment to

Gandhian nonviolence preached and practiced by Dr. Martin

9

Luther King, Jr., the principal leader of the movement to end

legalized apartheid in this country. Some of the amici are

civil rights activists from that era. For example, Will Davis

Campbell was a founding member of Dr. King’s Southern

Christian Leadership Conference; Dr. Campbell served as the

Executive Director of the Committee for Southern Church-

men, now known as Witnesses for Reconciliation. Others

bore the brunt of the violence of arch-segregationists like Bull

Connor and Governors George Corey Wallace and Orval

Faubus. These heroes of the civil rights movement sang “We

shall overcome,” and they did overcome the violence of

racism by nonviolence.

B. First Amendment concerns about the demon-

strations at issue in this case require the

“precision of regulation” mandated in

Claiborne Hardware (1982), not the sweeping

national injunction authorized under Milk

Wagon Drivers (1941).

The general commitment to nonviolence referred to above

in Part I.A did not guarantee there never were any instances

in which civil rights protesters threatened violence or resorted

to it. On the contrary, that very fact pattern was the subject of

a ruling by this Court that is highly relevant to this case,

NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). These

were the facts. In 1966, a branch of the NAACP in Claiborne

County, Mississippi, launched a boycott of local white mer-

chants “to secure compliance by both civic and business leaders

with a lengthy list of demands for equality and racial justice.”

Id. at 907. The record in this case contains abundant evidence

of pure speech (“encouraging nonparticipants to join the com-

mon cause”) and clearly protected activity (“nonviolent picket-

ing”). The complexity of the case is reflected in clear evidence

that fear of reprisals caused some black citizens to withhold

their patronage from the boycotted businesses. This led the state

supreme court to rule that the entire boycott was unlawful and

10

that each of the named defendants was liable for all of its

economic consequences. /d. at 888.

This Court was persuaded that the critical factors in the

boycott’s success were “persuasive rhetoric, determination to

remedy past injustices, and a host of voluntary decisions by free

citizens.” /d. As to the violence in the record, Justice Stevens

noted: “Although the extent and significance of the violence in

this case are vigorously disputed by the parties, there is no

question that acts of violence occurred. No federal rule of law

restricts a State from imposing tort liability for business

losses that are caused by violence and by threats of violence.”

Id. at 916.

Thus, Claiborne Hardware states clearly that violence is

not constitutionally protected. None of the amici claims that

violence in protesting abortion or any other issue on which

we sometimes take to the street in protest is constitutionally

protected. On the contrary, we go further than the constitu-

tional distinctions and declare unambiguously that violence

against women seeking an abortion or those providing them

is itself morally repugnant to us, an offense we do not

condone. But the principal focus of our concern in this

litigation is that the legal tool selected by respondents—civil

RICO (conspiracy theory writ large)}—is problematic for all

protesters of all stripes on issues of all sorts, especially as this

statute has been construed by the court of appeals to lack any

requirement of proof of either robbery or extortion.

Hence we return to Claiborne Hardware, noting important

factual parallels between that precedent and the instant case.

First, although the parties in both cases disputed the extent and

significance of the violence, there is no question in either case

that acts of violence occurred. /d. at 916. Second, in both

cases, the record does not reflect a pervasive pattern of

violent acts, but relatively few instances of violence amidst a

pattern of predominantly nonviolent protected activity. /d. at

923. Third, precisely because in both cases sporadic acts of

violence were situated within a broader context of pure

speech and clearly protected activity, both cases require rigor-

ous “precision of regulation.” As Justice Stevens clarified:

“the presence of activity protected by the First Amendment

imposes restraints on the grounds that may give rise to dam-

ages liability and on the persons who may be held account-

able for those damages.” /d. at 916-917; see also Carroll v.

President and Commissioners of Princess Anne, 393 \S.

175, 184 (1968). Hence the Court set clear limits on the im-

position of derivative or enterprise liability upon an entire

group for the conduct of some members who might have

engaged in illegal tactics unauthorized by the organization,

while most of the membership remained truly innocent of any

illegal acts committed by the organization. /d. at 930-932.

At the urging of the respondents, the district court rejected

Claiborne Hardware as the precedent to follow, and relied

instead on an earlier precedent, Milk Wagon Drivers v. Mead-

owmoor Dairies, 312 U.S. 287 (1941). No. 04-1244, 127a-

128a. The court of appeals considered Claiborne Hardware

in passing, see No. 04-1444, Pet. App. 48a-49, but the logic

of its holding is contrary to this precedent.

The very styling of the 1941 case suffices as a clue that

something curious was happening in the selection of which

precedent to honor. Milk has not been delivered to homes by

wagon drivers in a very long while. It was only after 1941]

that this Court clarified in a host of important decisions that

concerted activity such as picketing, sit-downs, and boycotts

are protected activity not subject to state injunctions. See,

e.g., AFL v. Swing, 312 U.S. 321 (1941) (state court injunc-

tion against picketing reversed; Milk Wagon Drivers distin-

guished); Cafeteria Employees Union Local 302 v. Angelos,

320 U.S. 293 (1943) (state court injunction against picketing

reversed; Milk Wagon Drivers distinguished); Teamsters Local

796 v. Newell, 356 U.S. 341 (1958) (state court injunction

against picketing and boycotts issued in reliance upon Milk

Wagon Drivers reversed per curiam), Youngdahl v. Rainfair,

Inc., 355 U.S. 131 (1957) (state court injunction against pick-

12

eting reversed; Milk Wagon Drivers distinguished); Carroll v.

Princess Anne, supra (state court injunction against rallies

issued in reliance upon Milk Wagon Drivers reversed). By the

simple device of electing to “follow” Milk Wagon Drivers,

the lower courts could proceed apace to ignore all of this

Court's teaching in the four decades between the precedents,

including cases at the height of the civil rights movement,

see, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147

(1969), and 382 U.S. 87 (1965), and cases involving trespass

by sit-down protesters at segregated lunch counters, Garner v.

Louisiana, 368 U.S. 157, 185, 201-207 (1961) (Harlan, J.

concurring). See NOW Amicus Brief in Claiborne Hardware,

1981 WL 390220, at 19-21.

The most significant reason to distinguish Milk Wagon

Drivers and Claiborne Hardware is not the year in which the

Court decided these cases, or even the many subsequent cases

in which this Court declined to follow Milk Wagon Drivers. It

is the profoundly different circumstances or facts in each

record. Thus, in Claiborne Hardware Justice Stevens distin-

guished Milk Wagon Drivers by citing the following facts

from the record in the 1941 case:

Witnesses testified to more than fifty instances of win-

dowsmashing; explosive bombs caused substantial injury

to the plants of Meadowmoor and another dairy using the

vendor system and to five stores; stench bombs were

dropped in five stores; three trucks of vendors were

wrecked, seriously injuring one driver, and another was

driven into a river; a store was set on fire and in large

measure ruined; two trucks of vendors were burned; a

storekeeper and a truck driver were severely beaten;

workers at a dairy which, like Meadowmoor, used the

vendor system were held with guns and severely beaten

about the head while being told ‘to join the union’;

carloads of men followed vendors’ trucks, threatening the

drivers, and in one instance shot at the truck and driver.

Claiborne Hardware, 458 U.S. at 923, citing Milk

Wagon Drivers, 312 U.S., at 291-292.

——

13

Nothing of the magnitude of this level of violent crime can be

found in the record of Claiborne Hardware or the Scheidler

case. We repeat, the fact that there is any violence at all in the

context of an abortion protest is something that amici find

morally abhorrent. But, to return to constitutional analysis,

we examine the record in this case soberly and find nothing

remotely approximating the level of pervasive violence in

Milk Wagon Drivers.

A corollary of this point is that “insubstantial findings of

fact” will not suffice to defeat any constitutional freedom, let

alone “the guarantees of the Bill of Rights.” Milk Wagon Driv-

ers, 312 U.S. at 292. In both Claiborne Hardware and the

instant case the only evidence of violence refers to a few

isolated acts of violence during a limited period in the long

years under review. In Milk Wagon Drivers, by contrast, there

was overwhelming testimony of a much more serious pattern

of criminal activity.

In the light of these considerations, can one seriously claim

in 2005 that Milk Wagon Dairies continues to express a con-

stitutionally viable principle after Claiborne Hardware? It is

instructive that NOW argued persuasively to the contrary in

the amicus brief that it filed in this Court in Claiborne

Hardware “The [Milk Wagon Drivers v.| Meadowmoor Case

No Longer Expresses a Constitutionally Viable Principle.”

NOW Amicus Brief in Claiborne Hardware, 1981 WL 390220

at 19. The Court, of course, has ready access to this brief,

both in the Library of the Court and on line, 1981 WL

390220. But we include a few samples of its solid reasoning

here. For example, NOW argued in its brief: “[Milk Wagon

Drivers] was decided before the Court had developed the

First Amendment principles on which we and the petitioners

rely. The Court’s holding is, as we urge here, inconsistent

with fundamental constitutional principles.” /d. at 20. “[Milk

Wagon Drivers v.| Meadowmoor no longer reflects current

interpretation of the protection to be afforded First Amend-

ment rights, and we urge that it be overruled.” /d. at 22. We

14

agree. NOW correctly grasped the complexity of hybrid cases

in which protected and unprotected activity coincide in a

single record. The principle that NOW articulated in its

amicus brief in Claiborne Hardware is no less valid today,

and no less valid in this very case.

At this stage of the lengthy proceedings, the court of ap-

peals has suggested a remand to the district court to ponder

four free-floating acts of violence that the court of appeals

thinks merit further reflection—though not further fact-

finding—by the district court. Pet. App. 2a-6a. This conclu-

sion flies in the face of the clear mandate of this Court in

Scheidler v. NOW, 537 U.S. 393 (2003) (Scheidler I): “Be-

cause all of the predicate acts supporting the jury’s finding of

a RICO violation must be reversed, the judgment that peti-

tioners violated RICO must also be reversed. Without an

underlying RICO violation, the injunction issued by the

District Court must necessarily be vacated.” 537 U.S. at 411.

Since the court of appeals acknowledged that Claiborne

Hardware is the more fitting precedent to follow in the

Scheidler case, Pet. App. 48a, amici focus only on whether

the lower court actually achieved the “precision of regula-

tion” that Claiborne Hardware requires. Claiborne Hardware

repeatedly states that it is not permissible to identify a few

acts or threats of violence, and then assign liability for these -

acts to people who did not commit them. See e.g., 458 U.S. at

916-917 (presence of protected activity imposes restraints on

the grounds that may give rise to liability for damages and on

the persons who may be held accountable for those damages);

id. at 924 (attendance and participation at meetings of civil

nights organizations an insufficient basis upon which to impose

liability for certain violent acts engaged in by some persons

participating in the boycott where no illegal conduct was

authorized, ratified, or discussed at any of those meetings); id.

at 925 (guilt by association is impermissible basis for assigning

liability); id. at 930-932 (limits on the imposition of derivative

or enterprise liability upon an entire group for conduct of

15

some members who might have engaged in illegal tactics

unauthorized by the organization, while most of the member-

ship remained truly innocent of any illegal acts committed by

the organization).

The lower courts did not come close to “precision of

regulation.” For example, the court of appeals sustained the

decision of the district court allowing plaintiffs-respondents

to introduce before the jury evidence about the conduct of

persons never identified in the trial. Whoever these parties

were, their acts against various abortion providers, Tr. 685,

687, 723, 1148, 1486, 2147-50, over the fourteen years from

1984 to trial were most emphatically not the acts of any of the

named petitioners. Once one tries to achieve “precision of

regulation,” serious questions present themselves. Is there any

evidence in this vast record linking any of the named petition-

ers to any act of coercion or violence? If there is no reliable

factual basis for determining precisely who committed those

acts of violence or threats of violence that the court of appeals

wants the district to think about, how can a court fashion an

equitable remedy?

The answer to these questions surely cannot be that the

petitioners hung out with one another, for this Court has

repeatedly rejected the idea of guilt by association. See, e.g.,

Healy v. James, 408 U.S. 169, 185-186 (1972) the Court (state

university may not deny recognition to local student group

merely because of affiliation with national organization asso-

ciated with disruptive and violent campus activity).

In Claiborne Hardware, Justice Stevens cited both Healy,

408 U.S. at 186, and United States v. Robel, 389 U.S. 258,

265 (1967) for the proposition that “guilt by association alone,

without [establishing] that an individual’s association poses

the threat feared by the Government,’ is an impermissible

basis upon which to deny First Amendment rights. The gov-

ernment has the burden of establishing a knowing affiliation

with an organization possessing unlawful aims and goals, and —

a specific intent to further those illegal aims.” 458 U.S. at

16

919-920. Analogously, the plaintiff in a civil RICO case has a

similar burden. In this litigation respondents did not even

attempt to establish specific intent by any specific person to

further illegal aims. Contrast this litigation behavior with the

convictions of NOW set forth in its amicus brief in Claiborne

Hardware: “Imposing Liability On An Individual Solely Be-

cause of Political Association With Others Violates the First

Amendment.” NOW Amicus Brief in Claiborne Hardware,

1981 WL 390220, at 12-15.

For these reasons alone, the court of appeals should be

reversed. But there are other reasons for reversing the court of

appeals that arise from its misreading of both the Hobbs Act

and of RICO itself.

C. The practical effect of the interpretation of the

Hobbs Act by the court of appeals is to sideline

or trivialize the very crimes—robbery and

extortion—that Congress deliberately inserted

into the statute, and to federalize the very

crime—coercion—that Congress deliberately

_ excluded from the statute.

At the conclusion of the trial in this case in 1999, the

district court entered judgment for the respondents and

Shortly thereafter entered a nationwide permanent injunction

regulating petitioners’ future protest activities at abortion

clinics. No 04-1244, Pet. App., 14la-174a. The court of

appeals affirmed “in all respects.” /d. at 61a.

This Court reversed, concluding its opinion on February

26, 2003 with three clear commands: (1) “all of the predicate

acts supporting the jury’s finding of a RICO violation must be

reversed,” (2) “the judgment that petitioners violated RICO

must also be reversed,” and (3)-“[w]ithout an underlying

RICO violation, the injunction issued by the District Court

must necessarily be vacated.” /d. at 411. Those three com-

mands are, of course inter-related. Without any predicate acts,

the RICO judgment had to fall. And without a final judgment

favoring the respondents, the injunction had to be vacated.

17

See e.g., Amoco Production Co. v. Village of Gambell, 480

U.S. 531, 546, n. 12 (1987).

For these reasons amici imagined that the case was over,

but we underestimated the capacity of lawyers and judges to

extend the life of a case. After pondering the case for a full

year, the court of appeals issued an unpublished order re-

manding the case to the district court to determine whether

four unspecified “acts or threats of physical violence to any

person or property” are sufficient to support the nationwide

injunction it imposed in 1999. No. 04-1244, Pet. App. 25a-

29a.

In defending this result, the court of appeals not only

ignored this Court’s clear mandate, but also indulged more in

statutory amendment than in statutory interpretation. The text

of the Hobbs Act adopted in 1946 clearly links the federal

violation with the common law crimes of robbery and extor-

tion. Section 2 provides: “Whoever in any way or degree

obstructs, delays, or affects commerce, or the movement of

any article or commodity in commerce, by robbery or extor-

tion, shall be guilty of a felony.” Section 5 provides: “Who-

ever commits or threatens physical violence to any person or

property in furtherance of a plan or purpose to do anything in

violation of section 2 shall be guilty of a felony.” Pub. L. No.

486, 60 Stat. 420 (1946) (emphasis added).

This case has never involved any allegation of robbery, for

none of the anti-abortion protesters ever stole any property

from any of the clinics at which they engaged in sit-ins. And

the law of the case determined by this Court in Scheidler v.

NOW, 537 U.S. 393 (2003) (Scheidler 11), is that this case no

longer involves any contention about extortion, for none of

the anti-abortion protesters ever obtained by force or violence

any property from any of the clinics at which they staged

protests. Since the two crimes expressly mentioned in the

Hobbs Act have no relevance to this case, the Court’s con-

cluding paragraph was ineluctable: “Because all of the predi-

cate acts supporting the jury's finding of a RICO violation

18

must be reversed, the judgment that petitioners violated RICO

must also be reversed.” Scheidler II, 537 U.S., at 411 (empha-

sis added), No. 04-1352, Pet App. 48a.

Nevertheless, on remand the court of appeals held the case

for a full year—a long time to ponder a clear mandate—and

then took another full year to rule on the petition for

rehearing. What emerged from all this judicial deliberation

was not the birth of a new legal vision of the relationship of

federal and state crimes, nor even a bold statement of how the

Hobbs Act must be sensibly construed, but only a meek, iffy

supposition that “it is not beyond the realm of possibility that

the revisers may have made certain substantive changes, ei-

ther advertently or inadvertently.” ? No. 04-1244, Pet. App. | Sa.

After all this waiting, the court of appeals directed the

district court to consider a novel view of the Hobbs Act that

had been rejected by all other circuits that have considered it.

See No. 04-1244, Pet. 18-22. Judge Wood wrote: “it would be

imprudent to resolve this problem of statutory interpretation

at this stage” and she elected instead to follow “for reasons of

judicial economy and restraint . . . a wait-and-see approach.”

No. 04-1244, Pet. App., 6a-7a, 15a-16a. “Imprudent’”? It is

not imprudent; it is impertinent for a lower court to ignore the

mandate of this Court. “Judicial economy”? The court of

appeals wasted judicial resources by prolonging a case that

this Court ended over two years ago. “Restraint”? The court

of appeals was unrestrained in page after page attacking the

sensible view of the Hobbs Act offered by the petitioners in

their briefs below. “Wait-and-see”? This is not a case about

the rule against perpetuities; it is a case that misapplies RICO

to social protesters.

At the end of the day the court of appeals offered a view of

the Hobbs Act that is a mirror image of what Congress en-

* In the Ars Poetica, the ancient Roman poet Horace wrote: “Parturient

montes, et nascitur ridiculus mus.” (“The mountains are in labor, and a

ridiculous mouse is born.”)

Te a

19

acted. First, Congress expressly excluded the crime of coer-

cion from the Hobbs Act in 1946, and the court of appeals has

effectively read that crime back into the Hobbs Act by sug-

gesting that the statute punishes a free-floating crime of

threatening a person engaged in interstate commerce, which

sounds pretty much like the crime of coercion. Second, Con-

gress expressly included robbery and extortion in the Hobbs

Acts, and the court of appeals rewrote the statute by effec-

tively striking from the statute’s “violence provision” any

connection to the two crimes that Congress decided to punish

as a federal offense. To achieve this remarkable feat of statu-

tory interpretation, the court of appeals simply ignored this

Court’s clear teaching on this very matter in Scheidler I], 537

U.S. at 405. Even more boldly, the court of appeals ignored

the clear mandate of this Court in Scheidler Il, id. at 411,

as well as the concerns of Justices Ginsburg and Breyer

about the expansive use of RICO, id. at 411-12 (Ginsburg, J.,

concurring).

D. Congress never intended RICO to apply to civil

protesters.

In addition to being wrong in its reading of the Hobbs Act,

the court of appeals was wrong in applying RICO to civil

protesters, a result never intended by Congress. T:.. “ourt

need not review the entire legislative history of RICO to

search for isolated sentences in a committee report or a floor

debate. It is enough to look carefully at the text of the statute,

and compare it with the preexisting bill to recognize that the

law signed by President Nixon by no means sought to sweep

civil protesters within its scope. In 1969 the bill that would

eventually become RICO defined “racketeering activity” very

broadly to include “any act involving the danger of violence

to life, limb or property, indictable under State or Federal law

and punishable by imprisonment for more than one year.”

S. 1861, 91st Cong., Section 2(a) (1969). see also 115 Cong.

Rec. 9569 (1969). Several objected to this language. Note that

20

this language is very close to the crime of coercion, which

Congress had not federalized from the Hobbs Act in 1946.

Several Members of Congress, including Senators Laward

Kennedy and Philip Hart complained that the bill reached

beyond “organized crime.” S. Rep. No. 91-617, at 215 (1969).

The American Civil Liberties Union also opposed the bill,

expressing the concern that social and political protesters

might fall within the bill’s ambit. The ACLU found the

breadth of the original definition of racketeering activity

“particularly troublesome,” citing the anti-war demonstrations

at the Pentagon and at Columbia University. Measures Relat-

ing to Organized Crime: Hearings on S.30 and Related Meas-

ures Before the Subcomm. on Crim. Laws and Proc. of the

Senate Comm. on the Judiciary, 91st Cong. 475-76 (1969).

The ACLU feared that this version of the bill would be used

by the Nixon Administration to suppress anti-Vietnam war

dissent. The Department oi Justice also objected to the sweep-

ing definition of “racketeering activity” in the bill, arguing

that it was “too broad and would result in a large number of

unintended applications.” S. Rep. No. 91-617, at 121-22.

Deputy Attorney General Richard G. Kleindienst suggested

an amendment to narrow the definition to a list of specific

offenses “customarily invoked against organized crime.” /d.

at 158.

In response to these misgivings, the Senate Judiciary Com-

mittee eliminated the broad language defining “racketeering

activity” as “danger of violence to life, limb or property,” and

replaced it with a list of specifically designated federal and

state offenses, such as the Hobbs Act. The new language was

virtually identical to that recommended by the Justice Depart-

ment. The Senate adopted the revised bill by a vote of

seventy-three to one. 116 Cong. Rec. 972 (1970). The House

then made minor amendments with which the Senate con-

curred. /d. at 36,296. President Nixon signed the bill into law

on October 15, 1970. See Brian Murray, “Protesters, Extor-

tion, and Coercion: Preventing RICO from Chilling First

—— 2

21

Amendment Freedoms,” 75 NOTRE DAME L. REV. 691, 697 &

n.21 (1999).

As noted above with respect to the Hobbs Act, one of the

objectionable features of the opinions of the court of appeals

on remand is that three unelected judges have, in effect,

assumed functions better left for Congress to undertake. The

court of appeals on remand effectively reinstated the arguably

unconstitutional broader version of the RICO bill that the

Senate expressly rejected. Congress emphatically did not in-

tend RICO to be used as a bludgeon against social protesters,

as the lower courts have done not only in this case, but also in

other cases directly affecting some of the amici. The Court

should reinstate a sensible construction of RICO.

II. The interpretation of the Hobbs Act by the court of

appeals is irreconcilable with the structure of the

United States Constitution and with American

constitutional history.

A. We, the People, retain the right to engage in

vigorous protest against governmental policies.

The structure of our constitutional order is highly relevant

to the proceedings in this case. We, the People ordain and

establish the Constitution of the United States. The First

Amendment is a mirror image of Article I, §8. In Article I the

People confer legislative power upon Congress. In Amend-

ment I the People deny to Congress (and by implication to the

Executive and the Judiciary) any power or jurisdiction to

establish religion or prohibit its free exercise, or abridge the

People’s freedom of speech or of the press; or the right of the

People peaceably to assemble, and to petition the Govern-

ment for a redress of grievances.

In times of crisis, the People rather than governmental offi-

cials (arresting officers, angry mayors or governors or legisla-

ters, even judges who have from time to time yielded to the

passion of the day), have often been the moral compass of

society. Law has not always been an instrument of establish-

ing justice, but has also become a means of coerced injustice.

22

Slavery is the most obvious example that was overcome not

by the political branches nor by the decisions of this Court,

but by a massive popular upheaval sustained for nearly three

decades (1830-1860) before the political branches began to

respond to the demands of the People to end this inequity.

And it took another century after the eradication of slavery to

put an end to Jim Crow segregation that made a mockery of

this country’s commitment to “equal protection of the laws.”

Again massive popular civil protest—led by African Ameri-

cans—against the injustice of these laws was the vehicle for

the Civil Rights Laws of the 1960s that were the direct fruit

of the civil rights movements.

The original Constitution excluded women from full citi-

zenship by denying them the franchise as well as public

obligations such as service on juries; and by virtue of laws

enacted by all-male legislatures and enforced by all-male

courts, the subjugation of women to men lasted throughout

the majority of this country’s history. As with the civil rights

movements, it took two massive popular movements—both

led by women—in both the nineteenth and the twentieth

centuries to overcome these inequalities. Amici note- with

gratitude the role that respondent National Organization for

Women played in helping, prodding when necessary, our

society to move in the direction of equal dignity for men and

women.

Abortion still divides our country decades after Roe v.

Wade, 410 U.S. 113 (1973). So is this Court divided, even as

it attempts to shore up its Cwn major precedent. See Planned

Parenthood v. Casey, 505 U.S. 832 (1992) (reaffirming Roe).

Indeed, some members of this Court have dared to suggest

that a significant cause for popular unrest over this issue is

the Court's withdrawal of the issue from the political forum

where common ground might be sought among contending

parties. For example, Justice White wrote: “The upshot is that

the people and the legislatures of the 50 States are constitu-

tionally disentitled to weigh the relative importance of the

23

continued existence and development of the fetus, on the one

hand, against a spectrum of possible impacts on the mother,

on the other hand.” Roe v. Wade, 410 U.S. at 221 (1973)

(White J., dissenting). See also Comments of [then Circuit

Judge] Ruth Bader Ginsburg, New York University Law

School, 1992.

Amici cannot in this brief suggest a simple way out of the

country’s anguish over abortion, for we are divided on

this issue ourselves. It is equally true that all the amici are

united in rejecting the solution to this issue represented by

this litigation as it has meandered through numerous legal

theories—including the view that anti-abortion demonstrators

represented a conspiracy in restraint of trade in violation

of the Sherman Act, or that petitioners could be linked

with deeply disturbing crimes such as intentional murder of

doctors who provide abortions or with arson perpetrated at

abortion clinics, even though there was no evidence linking

any of the defendants (petitioners here) to these crimes, which

amici repudiate with unanimity and full vigor. In its latter

stage, the case has rested upon the federal racketeering law,

the application of which to social protesters is a result that

Congress never intended when it enacted RICO, and that is

nowhere to be found in the statute signed by President Nixon

in 1970. See Part I.D, above.

This Court has attempted to shed light on RICO twice

already. We had thought the second time was the denouement

of this litigation, since the Court concluded its 8-1 opinion

- with such a clear mandate: “Because all of the predicate acts

supporting the jury’s finding of a RICO violation must be

reversed, the judgment that petitioners violated RICO must

also be reversed. Without an underlying RICO violation, the

injunction issued by the District Court must necessarily be

vacated.” Scheidler II, 537 U.S. at 411.

We hope that this case has now come to its final act. But

we are compelled to state that after all these years the case

has taken a turn for the worse, when it was difficult for us to

24

imagine that it was possible after this Court's resolution of

the issue of reversing the judgment and vacating the injunc-

tion in Scheidler II.

That this case has gone on so long is another indicator that

something has gone wrong with RICO. As we noted above in

Part 1.D, Congress did not have people like the petitioners in

mind when it enacted RICO. Not to put too fine a point on the

matter, we imagine that Congress was taking aim at, well,

“racketeer influenced” and highly organized, if thoroughly

“corrupt organizations.” But to amici, most of whom engage

regularly in civil protest on a wide variety of issues, and

who—like the petitioners—do so in a fairly unorganized and

spontaneous way, we think the application of RICO to social

protesters is a profound mistake.

Why is the mistake a profound one? We return to the most

fundamental truth about our constitutional order stated above:

that that People retain the natural rights articulated in the First

Amendment, and efforts to stifle these differing points of

view—sometimes radically differing—are in the long run

fruitless. Worse yet, the involvement of the judiciary in one

legal theory after another to wear down the meager resources

of civil protesters is itself problematical.

B. The lower court’s view of the Hobbs Act and

RICO is irreconcilable with the long history of

social protest in this country.

People have frequently protested the moral flaws of the

law, whether enacted by the people’s representatives or pro-

nounced by the judiciary. For this principle of democracy to

thrive at a time we are trying to urge greater openness to

democracy in other cultures, this society needs to grant

breathing space for vigorous social protest. RICO chokes off

such protest activity. Freedom cannot flourish with a case that

imposes on protesters severe penalties under the federal rack-

eteering laws.

What drives our basic intuition that our view is correct is as

much a sense of American history from the underside as a

25

refined appreciation of this Court’s precedents. So we turn to

an account of how incompatible this litigation is with our

nation’s history. Real struggles in our past could have had a

very different outcome if the new interpretation of the Hobbs

Act and RICO had been around when these events occurred.

For example, the participants in the Boston Tea Party not

only threatened property, but actually pitched taxed tea into

Boston harbor. But it was not the crime of robbery or extor-

tion. So we don’t recall it as a RICO offense, but as a political

act of rebellion against taxation without representation.

The picket line and the economic boycott are tools used by

organized labor to persuade owners or managers of corpora-

tions to raise wages or provide better benefits. Both picketing

and boycott activity intentionally cause economic injury by

diminishing the profits of the targeted company. For example,

the Reuther brothers led United Auto Workers in a sit-down

strike at the Ford plant in 1937. Ford called the strikers “tres-

passers” and had them arrested on that charge. Whatever

offense may have been committed at the Ford plant, it was

not the crime of robbery or extortion. So we don’t recall it as

a RICO offense, but as a famous effort to protect the rights of

workers.

If RICO had been on the books back in the 1960s and if the

lower court’s reading of RICO is right, then Dr. King and the

SCLC would have been vulnerable to losing their assets to

their arch-segregationist racial-supremacist adversaries. All it

would have taken to reach that bizarre result is for a federal

judge to have viewed the “trespass” by sit-in protesters at

racially segregated lunch counters as a “threat of physical

violence” to the property of the Woolworth company by de-

priving the drugstore of revenues they otherwise would have

made. But it was not the crime of robbery or extortion. So we

don’t recall it as a RICO offense, but as a courageous protest

against Apartheid.

Rosa Parks’ famous refusal to sit in the back of the bus

triggered a year-long, city-wide boycott of the Montgomery

26

buses led by Dr. Martin Luther King, Jr., which inflicted

economic injury on the city by depriving the city of revenues

from their segregated buses. But it was not the crime of

robbery or extortion. So we don’t recail it as a RICO offense,

but as one of the great instances that the People shall over-

come. See, e.g., Martin Luther King, Jr., Stride Toward

Freedom (1963); Taylor Branch, Parting the Waters (1988);

Howard Zinn, A People’s History of the United States:

1492—Present 440-450 (1995).

None of these great Americans should have been forced to

endure the expense of protracted litigation as defendants in a

RICO action, even if it were eventually dismissed on the

ground that the there was no “physical violence,” whatever

that might mean with respect to property (arson? malicious

destruction? ).

As a practical matter, moreover, the lower court’s reading

of the Hobbs Act is impossible for a leader of a protest

movement to enforce. It is bound to happen sooner or later

that a member of a loosely defined movement may do things

that are not authorized by the leadership, especially in the

heat of the moment, when tempers and emotions run high.

Ill. The court of appeals improperly perpetuated a

nationwide injunction against unpopular civil

protesters for a full two years after this Court had

ordered the injunction vacated.

A. “The injunction must necessarily be vacated.”

This Court reversed the court of appeals in 2003, noting

with respect to the injunction: “Without an underlying RICO

violation, the injunction issued by the District Court must

necessarily be vacated.” /d. at 411. On remand the court of

appeals considered the case for a full year, and then issued an

unpublished order remanding the case to the district court to

determine whether four unspecified “acts or threats of physi-

cal violence to any person or property” are sufficient to

support the nationwide injunction it had imposed in 1999. No.

04-1244, Pet. App. 25a-29a.

27

Since the parties are briefing the question of whether RICO

authorizes private parties to obtain injunctive relief, we offer

the Court a perspective on injunctions that comes from the

considerable cumulative experience of the amici as social

activists engaged in civil protest on many contentious and

difficult issues.

First, amici note the duration of the injunction. More than

two years after this Court ordered the injunction to be

vacated, the injunction in this case is still ongoing. This

injunction was ordered against protest activity that happened

nearly twenty years ago. It has been in force for nearly six

years, and if the lower court is right, it could go on until 2011,

another six years. See No. 04-1244, Pet. App. 14la-142a. See

Carroll v. Princess Anne, 393 U.S. 175 (1968) (reversing an

ex parte temporary restraining order of ten days’ duration).

This Court used the adverb “necessarily” in its order to vacate

the injunction, but did not add a specific chronological

dimension to its order, such as “with all deliberate speed” or

“instanter” or “now.” It had no cause to do so in 2003, for the

normal assumption would be that compliance with a mandate

would be done promptly.

When the Court used the phrase “with all deliberate speed,”

Brown v. Board of Education, 349 U.S. 294, 301 (1955), it

intuited that the subject of its order—tracial desegregation of

public schools—would take time to achieve, and it intention-

ally left to the district courts the task of devising desegrega-

tion plans in their region of the country. The order in the

instant case, however, was not to begin to devise plans for

“the dismantling of well-entrenched dual [school] systems

tempered by an awareness that complex and multifaceted

problems would arise which would require time and

flexibility for a successful resolution.” Green v. School Bd.,

391 U.S. 430, 439 (1968). It was simply to dissolve an

injunction that no longer had any legal basis. To vacate the

injunction in this case does not take much time. It only takes

the humility to follow a direct order from this Court. After a

28

decade of foot-dragging by local officials in Virginia, this

Court amended the ambiguous term “with all deliberate speed”

to the direct and simple term “now.” Green, id. Now is the

moment for the Court to use the same adverb in this case. The

injunction should be vacated now.

When First Amendment rights are implicated, this Court

has given explicit directions for the speed with which it

expects its mandates to be complied with. See, e.g., New York

Times Co. v. United States, 403 U.S. 713, 714 (1971) (“The

judgments shall issue forthwith.”); id. at 715 (Black, J., con-

curring) (“every moment's continuance of the injunctions

against these newspapers amounts to a flagrant, indefensible,

and continuing violation of the First Amendment.”).

Second, even if this Court had not ruled with clarity about

the nationwide injunction in this case, protest activity in front

of abortion clinics is now governed by the Freedom of Access

to Clinic Entrances Act, 18 U.S.C. § 248. See also Scheidler

II, 537 U.S., at 411, (Ginsburg, J., concurring), No. 04-1352,

Pet App. 48a. This statute was enacted because Attorney

General Reno and the Attorneys General of several states

took the view that no federal law—including the Hobbs Act

and RICO—afforded any protection to abortion clinics under

the circumstances of protests in front of clinics at the time.

Third, amici have considerable experience with public

demonstrations of popular dissent from controversial policies.

For example, Fort Benning, Georgia, houses a program called

the School of the Americas, a training center for foreign

military and security officials. The program has included

training in the use of torture. Prominent alumni of this pro-

gram have been engaged in death squads for decades. They

include assassins of Archbishop Oscar Romero and of six

Jesuit priests and their housekeepers in El Salvador. Each

year in November a large group of Americans, including sev-

eral of the amici, protest against this program. If demonstra-

tors cross onto the base, they are apprehended by federal

authorities, and are punished for trespassing on federal prop-

29

erty, with prison sentences up to six months, and fines of up

to $5,000. For example, in November of 2004 Sister Lil

Mattingly, an elderly nun, was among those who crossed onto

the base; despite her age, she received the maximum sentence

of six months incarceration for daring to demonstrate against

a policy hard to reconcile with fundamental decency and with

this country’s commitment to international humanitarian law

specified in treaties and covenants to which this nation is a

high contracting party. During the past fourteen years in which

this demonstration has been occurring, over 180 people have

been sentenced to prison, totaling 81 years in prison. These

sentences seem excessive when compared with typical sen-

tences for trespassing under state law. Imagine the impact of

the decision below, if the Government could add to its arsenal

against nonviolent demonstrators the full range of criminal

penalties under the Hobbs Act (up to 20 years in prison), with

no duty upon the Government to show that a “threat of physi-

cal violence to . . . property” was achieved by robbery or

extortion.

Finally, the decision by the court of appeals to ignore the

order of this Court to vacate the injunction in this case could

embolden judges who are so minded to issue excessive in-

junctive relief when they should be thinking instead of pre-

serving the fragile ability of the People to bring their govern-

ment back to decency and sanity.

B. Enough is enough.

As a practical matter, there must be some finality to

litigation. Amici are activists who may not be able to define

with precision the point when finality is or should be reached.

But two decades of litigation seems more than enough time

for parties to be wrangling in court over the application of

RICO to civil protest.

In its most recent order, the court of appeals assures the

parties that it does not mean to “open Pandora’s Box,” but

“merely resolves the final loose ends in this long-running

litigation.” No. 04-1244, Pet. App. 16a. But this Court al-

30

ready resolved all the “loose ends” of this litigation in 2003.

The court of appeals has needlessly prolonged the case for

two years, and has proposed a recipe for further delay by

remanding to the district court to decide among various

competing views on how to read the Hobbs Act. And it did so

after strongly suggesting that a Hobbs Act violation can occur

without robbery or extortion, a view plainly at odds with

other circuits that have considered this question. See No. 04-

1244, Pet. 18-22.

Most of the amici who join this brief also joined the briefs

filed in the October 2001 Term. Few of the amici are lawyers

familiar with the intricacies of distinguishing precedents and

construing statutes. But all of us marveled at the ingenuity

with which a lower court could, in effect, reverse this Court.

See, e.g., In re Sanford Fork & Tool Co., 160 U.S. 247, 255

(1895); Baltimore & Ohio R.R. v. United States, 279 U.S.

781, 785 (1929). When asked to consider joining another

brief this Term on the same matter in the same case, most of

the amici spontaneously observed that endless litigation eats

up the meager resources of people who espouse unpopular

views.

We now say respectfully to the Court, “Enough is enough.”

Reaffirm the mandate announced by the Chief Justice at the

end of Scheidler II: “Because all of the predicate acts sup-

porting the jury's finding of a RICO violation must be

reversed, the judgment that petitioners violated RICO must

also be reversed. Without an underlying RICO violation, the

injunction issued by the District Court must necessarily be

vacated.” 537 U.S., at 411 (emphasis added), No. 04-1352,

Pet App. 48a.

CONCLUSION

The Court should reverse the court of appeals.

Respectfully submitted,

EDWARD MCGLYNN GAFFNEY, JR.

Counsel of Record

Valparaiso University School

of Law

656 S. Greenwich Street

Valparaiso, IN 46383

(219) 465-7860

JOSEPH MATHIAS COSGROVE

Counsel for Martin Sheen

1460 Wyoming Ave.

Forty Fort, PA 18704

(570) 823-9078

JEFFREY S. KERR

General Counsel

People for the Ethical Treatment of

Animals, Inc.

501 Font Street

Norfolk VA 23510

(757) 622-7382

APPENDIX

la

APPENDIX A

Particular Statements of Interest of Amici Curiae

Communities and Voluntary Associations

Amici are voluntary associations and individuals who

engage in protest activity on a wide variety of issues. Because

Consistent Life organized the participation of these amici in

this brief, it is listed first.

Consistent Life (CL) is a coalition of groups and indi-

viduals committed to nonviolence and respect for life. The

network promotes the consistent life ethic, focusing on the

connections among issues concerning human life, including

war, abortion, poverty, racism, the death penalty and

euthanasia. CL supports all means of nonviolent change

including, but not limited to, nonviolent direct action,

political and legislative action, and direct service to those

suffering under these attacks on life. Carol Crossed (former

executive director of CL), Mary S. Rider (former executive

director), and Ruth Enero (former president of the Board of

Directors) have frequently engaged in nonviolent civil dis-

obedience relating to the issues listed above. All five are

married women and mothers of many children. If their

political opponents were to use civil RICO against them, the

loss of their homes, cars, and other valuable things they own

would wreak havoc upon them and their families. Ms. Rider

offered a declaration before the district court in this case at

the stage when it was considering the issuance of the

Life Abortion Network (PLAN). This declaration challenged

the enormous breadth of the nationwide injunction.

Agape is a community of faith in Franklin, Louisiana, that

witnesses for peace and justice through nonviolence. It en-

gages in education of its members and the public, especially

on the death penalty, through publishing booklets, brochures,

and treatises on how to effect change through raising public

2a

awareness and consciousness about issues of justice and

peace.

Carolina Interfaith Task Force on Central America

(CITCA) is a voluntary association of persons who believe in

nonviolent direct action on issues relating to peace and justice

in Central America. CITCA notes that all citizens of the

United States have the right to express their views on con-

troversial matters in a nonviolent fashion. This right is

jeopardized when federal courts penalize citizens for

exercising rights that are fundamental parts of the Bill of

Rights.

The Catholic-Labor Network is a place for Catholics who

are active in their churches and unions to learn about their

Church's teachings regarding labor issues, to pray for those

who are working for economic justice, and to share infor-

mation about events and struggles taking place in their area.

Catholic Peace Fellowship (CPF) is a nationwide organi-

zation of Catholics committed to peacemaking in the name of

Christ. CPF engages in educational projects about peace and

nonviolence, and it supports those who stand for peace by

virtue of conscience. For example, some of the members of

CPF have engaged in nonviolent civil disobedience of laws

and policies inimical to peace in today’s world.

The Catholic Worker (CW) is a lay Catholic community

founded by Dorothy Day and Peter Maurin to bear witness to

the Gospel that identifies service to the hungry, the thirsty,

the homeless, and the imprisoned as a way of recognizing the

presence of God in categories of human need. The com-

munity provides hospitality to homeless families while work-

ing to address the root causes of homelessness. Committed to

following the teachings of Christ on nonviolence, each CW

house or center engages in acts of hospitality and witness to

Gospel values in a variety of ways, including demonstrations

against war and militarism, poverty, and abortion. The CW

3a

houses that join this brief are: the Casa Juan Diego (Houston,

Texas); Dorothy Day Catholic Worker House (Washington,

D.C.); the Day House (Detroit, Michigan); Ithaca, New York

Catholic Worker; the Los Angeles Catholic Worker; Mary’s

House (Birmingham, Alabama); Redwood City (California)

Catholic Worker; St. Francis Catholic Worker Community

(Columbia, Missouri); and the St. Francis and Therese

Catholic Worker House (Worcester, Massachusetts).

Center for Action and Contemplation is a Christian center

forwarding the integration of social action and contemplative

prayer. The members of this community regularly engage in

transforming society around the issues of poverty, war, and

other kinds of violence.

Citizens United for Alternatives to the Death Penalty

(CUADP) is a national organization that works to end the

death penalty in the United States through aggressive

campaigns of public education and the promotion of tactical

grassroots activism. CUADP takes no position on the

abortion issue. It does not endorse or support the stand of

these defendants on that issue, nor does it necessarily approve

of their tactics or actions. It supports the petitioners strictly as

a legal matter, urging the Justices that peaceable, nonviolent

direct action—that is, peaceful civil resistance which “crosses

the line” and may involve sit-ins or blocking access in a

manner that might be regarded as a “threat” to property rights

should not be held to constitute the federal felony punished

by the Hobbs Act, without any proof of robbery or extortion.

Nor should a “pattern” of such “direct action” be penalized

under the federal racketeering laws.

The Conference of Major Superiors of Men serves the

leadership of Catholic orders of over 25,000 vowed religious

priests and brothers in the United States. The Justice and

Peace Division provides a voice for these communities

throughout society in witnessing against capital punishment,

war, poverty, and any issue that threatens life. The civil rights

da

of free speech and assembly are crucial to effective action

against oppression. These civil rights are threatened by the

use of the federal racketeering statute against political and

religious dissenters.

The Eighth Day Center for Justice is a community

composed of Catholic sisters, priests, and laity who believe

that nonviolent direct action is the backbone of our

democracy and the core of the Christian message. For

example, some of the healing actions of Jesus on the Sabbath

were viewed as a violation of the Torah. Religiously moti-

vated opposition to unjust laws has a long and admirable

history, culminating in the Civil Rights Movement and the

Movement for Gender Equality in this country, and in the

opposition to the assault upon human life in the Nazi regime.

Embrace a Consistent Ethic participates in ongoing peace-

ful public witness against all forms of taking human life,

including opposition to war, capital punishment, euthanasia,

abortion, racism and poverty. The members of this commu-

nity believe that the NOW vs. Scheidler litigation interferes

with the ability to carry out group/individual conscientious

objection, even those actions which would normally be con-

sidered within the limits of free speech.

Every Church a Peace Church (ECPC) is an association of

churches that adopt nonviolent struggle as their way to pursue

justice. For this reason ECPC agrees with the brief filed in

this case by the Southern Christian Leadership Conference in

the court of appeals that the power to impose treble damage

awards upon the petitioners and to enter a nationwide

injunction under RICO represents “clear and present danger

to future prospects for the lawful exercise of our liberties,

namely, the free exercise of religion, speech, press, or assem-

bly and petition for redress of grievances.”

The Faith Community of St. Sabina’s in Chicago is a

Word-based, Bible teaching church that believes in the power

“ a e———e

Sa

of praise and worship—a spiritual hospital where all are

welcome and invited to “taste and see the goodness of the

Lord.” The members of the Faith Community of St. Sabina’s

believe that the church is called to be the immune system of

the world—fighting off the attacks of Satan, by both prayer

and peaceable nonviolent direct action. St. Sabina’s has

crusaded against a host of social evils.

Franciscan Office of Justice, Peace, and the Integrity of

Creation, Santa Barbara Province, practices outreach, advo-

cacy, and education with and on behalf of the friars and those

with whom they minister.

Interfaith Worker Justice (IWJ), a national nonprofit or-

ganization founded in 1996, educates, organizes and mobi-

lizes the U. S. religious community on issues and campaigns

to improve wages, benefits and working conditions for work-

ers, especially low-wage workers. For these reasons, [WJ is

concerned about the possible misuse of the federal racketeer-

ing statute (RICO) against workers in a ~©Sor organizing

context.

The Leadership Conference of Women Religious (LCWR)

is an association of leaders of congregations of Catholic

women religious in the United States. LCWR has approxi-

mately 1000 members, who represent about 95 percent of the

75,000 women religious in the United States. Founded in

1956, the conference assists its members to collaboratively

carry out their service of leadership to further the mission of

the Gospel in today’s world. Social justice is an integral part

of LCWR’s focus. LCWR members work together to create a

corporate voice that amplifies the efforts of local religious

congregations. Rather than solutions that temporarily assuage

injustice, LCWR members strive to think strategically about

systemic change.The scope of the LCWR conference con-

cerns is broad and includes collaborating with the Catholic

church and other socictal efforts that influence systemic

change, studying significant trends and issues within the

6a

church and society, utilizing our corporate voice in solidarity

with people who experience any form of violence or oppres-

sion, and creating and offering resource materials on

leadership skills.

Nevada Desert Experience has since 1983 organized non-

violent civil disobedience at the U.S. nuclear test site in Mer-

cury, Nevada, where tens of thousands of people—including

the actor Martin Sheen—have been arrested for trespass in

their public protest against weapons of mass destruction.

The Orthodox Peace Fellowship in North America is a

community of Eastern Orthodox Christians committed to wit-

nessing for peace in our world: Eastern Orthodox Christianity

has for 2000 years affirmed the Sacredness of human life

from conception to death. This, we understand, is the faith of

Christ, the apostles, the councils, and the fathers and mothers

of the Church. This we must proclaim.

Pax Christi USA is the national Catholic peace movement

of 14,000 members who are committed to the gospel impera-

tive of seeking peace through nonviolence. The members of

this association promote peace through personal and social

transformation. They frequently engage in nonviolent protest

of policies that undermine peace and justice.

People for the Ethical Treatment of Animals (PETA), with

more than 850,000 members, is the largest animal rights

Organization in the world. Founded in 1980, PETA is

dedicated to establishing and protecting the rights of all

animals. PETA operates under the simple principle that

animals are not ours to eat, wear, experiment on, or use for

entertainment. PETA focuses its attention on the four areas in

which the largest numbers of animals suffer the most

intensely for the longest periods of time: on factory farms, in

laboratories, in the clothing trade, and in the entertainment

industry. We also work on a variety of other issues, including

the cruel killing of beavers, birds and other “pests,” and the

7a

abuse of backyard dogs. PETA works through public edu-

cation, cruelty investigations, research, animal rescue, legisla-

tion, special events, celebrity involvement, and protest cam-

paigns.

The Peter Maurin Center in Washington, D.C., was

established in 1997. In the words of Peter Maurin, the center

seeks to contribute to creating a “society where it is easier to

be good.” The Center does so in three ways: (1) evange-

lization in the Catholic Worker tradition through operating

the Catholic Worker Bookstore; (2) — et wt works om

mercy through operating a furniture

cathion m othr people who have more than they need

give it to the Center, which distributes se ape = a

3 izing for and justice wi

ree nge Sek ag vty their effort to de-colonize, and

specifically to rid themselves of the Navy at Vieques; and (4)

through work for the abolition of the death penalty,

specifically focusing on the case of Mumia Abu-Jamal. The

Center is concerned with the broad and elastic application of

the RICO act to dissent and nonviolent protest. The mis-

application of the law in this way permits the government to

virtually at will. Affording the government power of this

essentially disempowers the People in i process.

To protect popular, and especially unpopular, political

expression, these effects of the RICO law need to be nullified.

Plowshares is a coalition of religious believers who seek to

enflesh the words of the prophet Isaiah 2:4, “They shall beat

hooks. Nation shall not take up sword against nation and

neither shall they study war anymore.” The founders of this

movement, Fr. Daniel Berrigan, S.J., and his deceased brother

Philip Berrigan were leaders in the opposition to the Vietnam

War. From burning draft files to organizing larger civil

8a

disobedience actions, they provided the peace movement with

a sharp focus. Fr. Berrigan offered a declaration before the

district court in this case at the stage when the court was

considering the issuance of the nationwide injunction against

anyone associated with the Pro-Life Abortion Network

(PLAN). This declaration addresses the severe impact on

nonviolent social protest that flows from treating loose

associations of antiwar protesters as though they were racket-

eer-influenced corrupt organizations. Fr. Berrigan joins this

brief in his individual capacity, as do the following Plow-

shares Activists: Bruce Friedrich, Art Laffin, Paul Magno,

Patrick O'Neill, and Kathy Boylan Shields. All of these

activists have spent many years imprisoned for their non-

violent protest against war.

Sojourners is a Christian ministry whose mission is to

proclaim and practice the biblical call to integrate spiritual

renewal and social justice. In response to this call, the

members of this community offer a vision for faith in public

life by: publishing Sojourners magazine, and other resources

that address issues of faith, politics, and culture from a

biblical perspective; preaching, teaching, organizing, and

public witness; nurturing community by people from the vari-

ous traditions and streams of the church; hosting an annual

program of voluntary service for education, ministry, and dis-

cipleship. Members of Sojourners seek to be guided in their

lives and work by the biblical principles of justice, mercy,

and humility.

Witnesses for Reconciliation (WFR) was formerly the

Committee of Southern Churchmen that was founded in the

1960's to promote the work and vision of Dr. Martin Luther

King, Jr., and to advance his cause of nonviolence. The Com-

mittee promoted, participated in, and led marches, sit-ins,

boycotts, and the freedom rides. WFR continues to advance

the cause of civil and political rights for minorities.

eee LO LLL LLL! LLL LL! AA ay

-_ ——

9a

Individuals

David Atwood is the director of the Texas Coalition to

Abolish the Death Penalty. This group regularly organizes

demonstrations against the death penalty in Texas.

Donald Bauer is a Catholic priest who served as a member

of the New York State Labor and Religion Coalition since its

inception, and who worked tirelessly for farmworker wage

equity and other issues on behalf of the poor. He also was

appointed to the Congress on Racial Equality and in both of

these capacities used public witness to educate and challenge

the public.

Michael Baxter, C.S.C. is a theology professor at the Uni-

versity of Notre Dame, and the national president of the

Catholic Peace Fellowship.

Wendell Berry is an American poet, novelist, essayist,

philosopher and farmer. He has published several collection

of poems, and essays about his commitment to the pre-

servation of ecological diversity and integrity, and the re-

newal, on sound cultural and ecological principles, of local

economies and local communities.

Abe Bonowitz is the director of Citizens United for

Alternatives to the Death Penalty (CUADP), a national

organization that works to end the death penalty in the United

States through aggressive campaigns of public education and

the promotion of tactical grassroots activism. On occasion he

has engaged in peaceful acts of civil resistance. While

CUADP takes no position on the abortion issue, Bonowitz is

pro-choice and, therefore, he is in profound disagreement

with the petitioners on that issue and deplores the violent

tactics that abortion opponents have been known to employ.

He does not know these petitioners and has no personal

knowledge of their tactics. He is informed, though, that jurors

at the trial of this case found petitioners or unidentified

persons “associated with” them responsible for four acts or

10a

threats against persons or property. He supports this appeal

only because, as a legal matter, political protest involving sit-

ins or blocking access should not be condemned as “ex-

tortion” or “racketeering.”

Roy Bourgeois, M.M., is a Maryknoll priest who, after

years as a foreign missionary in Central America, founded the

School of the Americas Watch (SOAW), a loose coalition of

citizens concerned about the widespread abuse of human

rights—including torture and murder of religious leaders and

labor leaders throughout Central and South America—by

foreign military officers who study at the U.S. Army School

of the Americas at Ft. Benning, Georgia. Eric LeCompte is

the director of programming of SOAW. Each November—on

the anniversary of the assassination of six Jesuit priests and

their domestic workers in San Salvador by graduates of the

School of the Americas—SOAW organizes a major demon-

stration against the negative effects of this program upon

peace and justice in our hemisphere.

Bernard Broussard is the founder of the Human Relations

Council of Louisiana, a group that played a leading role in

community organization on behalf of the civil rights of

African Americans in Louisiana in the mid 1960s. From that

time to the present, he continues to challenge through

marches, demonstrations, holding prayer meetings on behalf

of the oppressed in the South. He is a founder of Starthrow-

ers, a human rights organization based in Louisiana.

Will Davis Campbell is a writer, lecturer, and long time

supporter of the Civil Rights Movement who helped escort

African-American children when they tried to integrate a

Little Rock, Arkansas high school back in 1957. A founding

member of Dr. King’s Southern Christian Leadership Con-

ference, he became the Executive Director of the Committee

for Southern Churchmen, which is now known as Witnesses

for Reconciliation.

a 7 -

Thomas Cornell is the founder of the Catholic Peace

Fellowship and an ordained deacon in the Catholic Church.

He is the editor of The Catholic Worker, a newspaper of

national circulation founded by Dorothy Day, and he lives at

the Catholic Worker farm in Marlboro, New York.

John Dear, S.J., has written over 100 articles on peace and

nonviolent action Fr. Dear’s writings focus on nonviolence

and peacemaking. One of his books, Peacemaking Behind

Bars, is an account of his time spent in jail for a 1993 action

at Seymour Johnson Air Force Base in Goldsboro, N.C. He

has participated in many other actions of nonviolent civil

disobedience for justice and peace.

Stephen Dear is the executive director of People of Faith

Against the Death Penalty, a national organization with

headquarters in Carrboro, North Carolina.

Heather DeMaim is a founding member of Not Dead Yet

and ADAPT, a disability rights organizations in Missouri.

Jim and Shelley Douglass are co-founders of Mary House,

Catholic Workers, in Birmingham, Alabama, peace activists,

co-founders of Ground Zero Center for Nonviolent Action,

and co-organizers of a national campaign to stop the “White

Trains” transporting nuclear weapons across the U.S. and to

stop the Trident nuclear submarine and missile system. The

Douglasses believe that every nonviolent movement in U.S.

history could have been squelched by the way in which RICO

has been applied in NOW v. Scheidler.

Thomas Gumbleton is a Catholic bishop in the Archdiocese

of Detroit, Michigan, and a founder of Pax Christi, USA. He

was a leading voice urging the United States Conference of

Catholic Bishops to issue its statement in 1971 collectively

opposing the Vietnam War on the ground that the war could

no longer be justified under the principles of the just war

tradition. Bishop Gumbleton has worked and visited in poor

and war-torn countries in Latin America and the Caribbean

l2a

and is deeply concerned with human rights violations around

the world. He holds a deep belief in the power of nonviolence

to effect social change.

Lana Jacobs has been arrested numerous times at the

Strategic Air Command base in Omaha, Nebraska, and

Whiteman AFB protesting the stealth bomber; has trial in

September 2005 for opposing ROTC in the schools in

Missouri; In March, 2005, Lana was arrested for taking water

to Terri Schiavo. She is the recipient of the Martin Luther

King Jr. Award and the Shalom Peace Award.

Kathy Kelly is a co-founder of Voices in the Wilderness, a

group that has sought to end the economic sanctions against

the people of Iraq, by sending delegations to Iraq to break the

siege and to bring desperately needed medical supplies to

children and families, and by sponsoring demonstrations

against these sanctions, including week-long fasting outside

the headquarters of the United Nations in New York. Voices

in the Wilderness has also protested against the current war in

Iraq. The American Friends Service Committee nominated

Ms. Kelly for the Nobel Peace Prize.

Andy Lipscomb is a member of Witnesses for Reconcilia-

tion, a board member of Consistent Life, and a long-time ac-

tivist for civil rights.

Deborah McEvoy is a member of Feminists for Life of

America and of the Detroit Peace Community. In her role as a

health professional, she supports the needs of women and

their children through petitions, public advocacy and demon-

strations.

Rachel MacNair, a Quaker, is the founder and director of

the Feminism and Nonviolence Studies Association. She has

written a seminal book on peace psychology, and has been

arrested frequently for participation in nonviolent direct

actions at nuclear weapons facilities and abortion clinics.

l3a

John W. Oliver is the coordinator of the Orthodox Peace

Fellowship in North America. He is professor emeritus of

history at Malone College.

Gail Phares is a founder of Witness for Peace (WFP) a

national organization working to affect U.S. policy in Latin

America. Ms. Phares is also the founder and director of the

Carolina Interfaith Task Force on Central America. She has

led many delegations to war-torn areas in Latin America and

frequently joins nonviolent peace and justice actions at home.

The members of WFP believe that organizing for justice—

including the right to nonviolent protest of official policies of

our government—is a fundamental right secured under the

Constitution.

Rev. Michael Pfleger is Pastor of the Faith Community of

St. Sabina’s on Chicago’s South Side, a “Pastor, Preacher,

Parent, Lecturer, Activist, and ‘Errand Boy for Jesus,’ “ who

has mobilized his parish and community in a series of protest

crusades, sometimes involving peaceable nonviolent direct

action, including campaigns against drug paraphernalia

(which precipitated statewide legislation), “Standing Up—

Talking Back,” a social action crusade, an anti-Alcohol &

Tobacco Billboard campaign which reduced the number of

such billboards from 118 to 40 in the cama Sarg and

stin tions to identify vendors selling liquor to minors.

On ‘April 27, 1998, citing the verdict in NOW vs. Scheidler,

the Chicago Sun-Times editorialized that, if RICO weren't

curtailed, that statute might even be invoked to deter or

punish Fr. Pfleger’s and St. Sabina’s community-based pro-

test against the trivialization of violence on the Jerry Springer

TV show.

Sister Helen Prejean, CSJ, is internationally known for her

opposition to the death penalty and her work with both death

row inmates and the families of murder victims. She is the

founder of Survive, a New Orleans victim’s advocacy group,

and the author of Dead Man Walking: An Eyewitness Account

14a

of the Death Penalty in the United States, which became both

a national and international bestseller and a major motion

picture. Sister Helen does not believe that peaceful, non-

violent protesters should be condemned as “extortionists” or

protest leaders prosecuted as “racketeers.”

Scott and Claire Schaeffer-Duffy are co-founders of the

Saints Francis and Therese Catholic Worker in Worcester,

MA, a lay Catholic pacifist community which offers hospital-

ity to homeless men and women. They also publish The

Catholic Radical, a bi-monthly journal of opinion. Scott has

engaged in civil disobedience at weapons facilities and

abortion clinics, and has lectured extensively at colleges and

universities throughout New England on the value of

nonviolent direct action. The Schaeffer-Duffys state their

interest in this case as follows: “Nonviolent civil disobedi-

ence is an American tradition, one that has brought much

good to our country. We advocate its use when laws ccn-

tradict the needs of the common good and the greater law of

wod’s love for all.”

Martin Sheen is an actor who has participated for nearly

two decades in protests against weapons of mass destruction

and in demonstrations pertaining to homelessness and other

issues of social justice.

John Stoner is a member of Mennonite Central Committee,

a traditional peace church. He is the founder of Every Church

a Peace Church, a movement to share the convictions of the

Anabaptist community with all other Christian churches.

Brian Terrell is a leader of the Catholic Peace Ministry in

Ces Moines, lowa and is a participant with members of the

Des Moines Catholic Worker community in nonviolent

Gandhian activism at Offutt Air Force Base.

Howard Zinn is a professor of history at Boston University.

He has served as a professor of history at Spelman College in

Atlanta, and as a visiting professor at the University of Paris

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and the University of Bologna. He has written over a dozen

books which deal in some way with protest movements in

American history. Two of these books most closely related to

the theme of this brief are Disobedience and Democracy

(1968), and A People’s History of the United States (3d ed.

1999).

Stephen Zunes is Professor of Politics at the University of

San Francisco. He is the principal editor of Nonviolent Social

Movements (Blackwell, 1999). His research interests have

included the impact of grassroots political movements on

policy and government. Prior to his academic career, he

engaged in nonviolent civil disobedience campaigns against

nuclear power, nuclear weapons and apartheid and served as a

staff member and nonviolence trainer for organizations sup-

porting nonviolent civil disobedience.