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

mA AO,

IN THE

Supreme Court of the Anited States

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 ai.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF AMICUS CURIAE OF CONSISTENT LIFE,

ET AL., IN SUPPORT OF PETITIONERS

JOSEPH MATHIAS COSGROVE EDWARD MCGLYNN GAFFNEY, JR. *

Counsel for Martin Sheen Valparaiso University School

1460 Wyoming Ave. of Law

Forty Fort, PA 18704 656 S. Greenwich Street

(570) 823-9078 Valparaiso, IN 46383

(219) 465-7860

* Counsel of Record

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

BY DISREGARDING THE CLEAR MAN-

DATE OF THIS COURT, THE COURT OF

APPEALS LEFT OPEN THE POSSIBILITY

THAT THE FEDERAL RACKETEERING

STATUTE CAN BE MISUSED AGAINST

POLITICAL AND LABOR PROTESTERS

OF ALL SORTS BY THEIR POLITICAL

PEF CERREDOUTEED cncecscensstecesenstccsnsecncetssenscenestncees

A. Congress never intended RICO to apply to

ee RI cctetensetacinsssarnscctesinniintesmncsniere

B. Enough 16 CMOUGN..........ceccroccsrsoresscosesccooeeees

THE SEVENTH CIRCUIT’S INTERPRETA-

TION OF THE HOBBS ACT CONFLICTS

WITH THAT OF OTHER CIRCUITS,

IGNORES THE LONG HISTORY OF

SOCIAL PROTEST IN THIS COUNTRY,

NEEDLESSLY JEOPARDIZES THE

RIGHTS OF THE PEOPLE TO ENGAGE IN

VIGOROUS PROTEST TO A_ WIDE

VARIETY OF GOVERNMENTAL POLI-

CIES AT A MOMENT WHEN WE ARE

TRYING TO EXPORT DEMOCRACY

ABROAD, AND UNDERMINES’ THE

RIGHTS OF WORKING PEOPLE TO

ENGAGE IN CONCERTED ECONOMIC

ACTIVITY PROTECTED UNDER THE

FEDERAL LABOR LAWS AT A TIME OF

INCREASED VULNERABILITY OF

ORGAINZED LABOR. .........cccssssseesessseresereeeees

ii

TABLE OF CONTENTS—Continued

Page

A. The court of appeals needlessly generated

a circuit conflict by decoupling robbery

and extortion from the Hobbs Act. ..........+++. 6

B. The court of appeals needlessly jeopard-

ized the rights of the people to engage in

vigorous protest against a wide variety of

ZOVErNMENtal POLICIES .........ccecceeereeereeeeeeeeens 8

C. The court of appeals needlessly under-

mines the rights of working people to

engage in concerted economic activity

protected under the federal labor laws.......... 11

Ill. THE COURT OF APPEALS IMPROPERLY

PERPETUATED A NATIONWIDE INJUNC-

TION AGAINST UNPOPULAR CIVIL

PROTESTORS FOR A FULL TWO YEARS

AFTER THIS COURT HAD ORDERED THE

INJUNCTION VACATED. ........ccccccerseeeeserseeenes 15

IN LIIIUIIN .cccccccccsccsscscesessescsovsosssscssossssscsosssoossonooese 20

APP EINEIIAS A ..cccccccsesevssssescsscssesovesssscoosssosssoseosnsosecosesses la

TABLE OF AUTHORITIES

CASES Page

Amoco Production Co. v. Village of Gambell,

CE 15

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

a 6

Brown v. Bd. of Educ., 349 U.S. 294 (1955).......... 17

Carroll v. Princess Anne, 393 U.S. 175 (1968)..... 18

Cox v. Louisiana, 379 U.S. 536 (1965)..........c.000. 9

Green v. School Bd. of New Kent County, 391

aT 17

Jacobellis v.Ohio, 378 U.S. 184 (1964)........ccccees 4

Milk Wagon Drivers of Chicago v. Meadow

Dairies, 312 U.S. 287 (1941) ........cccccsscensseeesees 9

NAACP yv. Claiborne Hardware Co., 458 U.S.

Ee 9

NLRB vy. Jones & Laughlin Steel Corp., 301 U.S.

CC EE 12

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

EE 17

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

EE 5

Scheidler v. NOW, 537 U.S. 393 (2003).............. 3, 14, 15

Scheidler v. NOW, 396 F. 3d 807 (7th Cir. 2005) ....4, 7-8, 9

United States v. Enmons, 410 U.S. 396

ee 12, 13, 14, 15

STATUTES AND CITATIONS TO

LEGISLATIVE HISTORY

~ Federal Access to Clinic Entrance Act, 18 U.S.C.

ET 18

Hobbs Act, Pub. L. No. 486, 60 Stat. 420, 18

a passim

Racketeer Influenced and Corrupt Organizations

FRE Ga acecencrerscsscnnsnenencsnsnassnssesescsssnsesenscscesseee passim

Wagner Act, 49 Stat. 449 (1935) ..0......cccccccccseeseees 11

iv

TABLE OF AUTHORITIES—Continued

National Laber Relations Act, 29 U.S.C. §§ 151

68 808) cng cme

Norris-La Guardia Act, 47 Stat. 70, 29 U.S.C.

8 | eee

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

QU Ua

Measures Relating to Organized Crime: Hear-

ings on §.30 and Related Measures Before the

Subcomm. on Crim. Laws and Proc. of the

Senate Comm. on the Judiciary, 91st Cong.

BOOKS AND LAW REVIEW ARTICLES

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

Charles Dickens, Bleak House (1994; orig. ed.

SE Gi rresersennnsesscensssesemensnenmnsstemecnsnemessnee

Eric Foner, The Story of American Freedom

Felix Frankfurter and Nathan Greene, The Labor

EN

Martin Luther King, Jr,. Stride Toward Freedom:

The Montgomery Story (1958) .............c--0000000+

Leo XIII, Rerum Novarum (1891) .............c.cccc000e

Brian Murray, “Protesters, Extortion, and Coer-

cion: Preventing RICO from Chilling First

Amendment Freedoms,” 75 NOTRE DAME L.

REV. 691 (1999) SS

Frances Fox Piven and Richard A.

Poor People’s Movements: Why They Succeed,

How They Fail 181-263 (1979) —

Richard A. Resbin, Jr., A Strike Like No Other

Strike: Law & Resistance during the Pittson

Coal Strike of 1989-1990 (2002)

10

18

10

19

Vv

TABLE OF AUTHORITIES—Continued

Page

Sullivan's Judicial Profiles: The Illinois Judicial

Co 8

Juan Williams, Eyes on the Prize: America’s

Civil Rights Years, 1954-1965 (1987) ..........0.0+ 10

Howard Zinn, A People’s History of the United

States: 1492—Present (1999) .........ccccececceeeeeeeees 10

J

INTEREST OF AMICI CURIAE

Amici’ are civil rights organizations, labor unions, political

groups, 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 and some don’t).

Amici are interested in a prompt disposition of this case

because the misapplication of the federal Racketeer-Influ-

enced and Corrupt Organizations Act [RICO] exposes them

to enterprise liability with staggering penalties (treble dam-

ages, attorney fees, nationwide injunctions of great duration)

whenever two of more supporters of any of the organizational

amici (who need not be members of the various organizations

or communities appearing in this brief as amici) act in a

manner deemed by a federal judge to constitute an act or

threat of violence against a person engaged in interstate

commerce or against the property of such a person.

Committed as the amici are to nonviolence, they are also

aware that the lower court’s misreading of the Hobbs Act

places all of the amici in grave financial jeopardy if any of

our supporters engage in conduct vaguely defined as a threat

to property affecting interstate commerce. This judicial

imposition of vicarious liability for loosely connected sup-

porters of various causes espoused by amici is at odds with

the text of the statute itself and threatens to chill the efforts of

the amici to involve as many as possible in the goals they

seek to advance in our democracy.

' Pursuant to Rule 37.6 of the Rules of this Court, amici 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

This brief is submitted with the consent of the parties,

whose consent letters have been filed with the Clerk of the

Court. The particular interests of the amici curiae are stated in

Appendix A.

REASONS FOR GRANTING THE PETITION

I. BY DISREGARDING THE CLEAR MANDATE

OF THIS COURT, THE COURT OF APPEALS

LEFT OPEN THE POSSIBILITY THAT THE

FEDERAL RACKETEERING STATUTE CAN

BE MISUSED AGAINST POLITICAL AND

LABOR PROTESTERS OF ALL SORTS BY

THEIR POLITICAL ADVERSARIES.

A. Congress never intended RICO to apply to civil

protesters.

Amici do not propose that the Court look to isolated

sentences in a committee report or a floor debate, but to the

amendment of the text of the statute after consideration of

serious objections to the preexisting bill. 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, 91" Cong., Section 2(a) (1969). see also

115 Cong. Rec. 9569 (1969). Several objected to this language.

For example, Senators Edward Kennedy and Philip Har

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 Relating to Organized Crime: Hearings

on §.30 and Related Measures Before the Subcomm. on Crim.

3

Laws and Proc. of the Senate Comm. on the Judiciary, 9\st

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 of Justice also

objected to the sweeping definition of “racketeering activity”

in the bill, arguing that it was “too broad and would resuli 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 designated federal and state offenses,

such as the Hobbs Act. The new language was virtually

identical to that recommended by the Justice Department. 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 concurred. /d. at 36,296.

President Nixon signed the bill into law on October 15, 1970.

See Brian Murray, “Protesters, Extortion, and Coercion:

Preventing RICO from Chilling First Amendment Freedoms,”

75 NOTRE DAME L. REV. 691, 697 & n.21 (1999).

One of the objectionable features of the opinions of the

court of appeals on remand is that three unelected judges

have, in effect, reinstated the arguably unconstitutional

broader version of the bill that the Senate expressly rejected.

And the court of appeals completely ignored the concerns of

Justices Ginsburg and Breyer about the expansive use of

RICO, Scheidler v. NOW, 537 U.S. 393, 411-12 (2003)

(Scheidler II), (Ginsburg, J., concurring), No. 04-1352, Pet.

App. 48a-49a.

Congress emphatically did not intend RICO to be used as a

bludgeon against social protesters, as the lower courts have

4

done not only in this case, but also in other cases directly

affecting some of the amici. The Court should issue the writ

now to reinstate a sensible construction of RICO and the

Hobbs Act.

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 like Justice Stewart’s famous assessment of another

matter, amici know waste of time and precious resources

when they see it. See Jacobellis v.Ohio, 378 U.S. 184, 194

(1964) (Stewart, J., concurring). This lawsuit has gone on for

nearly two decades and makes the lawyers in Chancery

described in Charles Dickens’s Bleak House (1994; orig. ed.

1852-1853) look like models of efficiency as they wore

down the estates of decedenis through filing document after

document.

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

already 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 the

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

1244, Pet. 18-22. No matter what the trial court does, the

losing side would surely then appeal back to the very court

that created the confusion and the circuit conflict in the first

place, and then back up to this Court. So it saves a lot of time

and money for this Court to decide now the three questions

5

presented, two of which can be disposed of summarily by

vacating the opinions below.

During the two years during which the court of appeals has

been pondering this Court’s order in Scheidler II, a nation-

wide injunction has remained in place. We discuss the

question of the availability of injunctive relief by private

litigants in a civil RICO action in Part III below.

The ingenuity of the lawyers for respondents in pleading

new causes of action at various stages of this litigation or in

switching theories in midstream, and the tenacity of lawyers

in prolonging a case long after this Court had ended it might

be explained by a hope of recovering an award of attorney

fees if they eventually prevail on some theory or another.

In this case, lawyers for the respondents did not plead or

prove that any particular defendant engaged in violent activ-

ity. They did not attempt such particularized proof because

they have no evidence that this occurred. Instead, they turned

to the federal racketeering law, obfuscating a fact demon-

strated above: RICO was never intended by Congress to

apply to civil protesters at all. In short, they are close to the

description of “fog everywhere” that Dickens used to describe

the activity of lawyers in Chancery in nineteenth-century

London. See Charles Dickens, Bleak House | (1994; orig. ed.

1852-1853). |

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

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

but even the non-lawyers wondered how a lower court could,

in effect, reverse this Court. See, e.g., In re Sanford Fork &

Tool Co., 160 U.S. 247, 255 (1895). 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.” Grant the petitions in Nos. 04-

6

1244 and 04-1352 and summarily reverse the court of

appeals. See, e.g., Baltimore & Ohio R.R. v. United States,

279 U.S. 781, 785 (1929).

Il. THE SEVENTH CIRCUIT’S INTERPRETA-

TION OF THE HOBBS ACT CONFLICTS WITH

THAT OF OTHER CIRCUITS, IGNORES THE

LONG HISTORY OF SOCIAL PROTEST IN

THIS COUNTRY, NEEDLESSLY JEOPARD-

IZES THE RIGHTS OF THE PEOPLE TO

ENGAGE IN VIGOROUS PROTEST TO A

WIDE VARIETY OF GOVERNMENTAL POLI-

CIES AT A MOMENT WHEN WE ARE TRYING

TO EXPORT DEMOCRACY ABROAD, AND

UNDERMINES THE RIGHTS OF WORKING

PEOPLE TO ENGAGE IN CONCERTED

ECONOMIC ACTIVITY PROTECTED UNDER

THE FEDERAL LABOR LAWS AT A TIME OF

INCREASED VULNERABILITY OF ORGAN-

IZED LABOR.

A. The court of appeals needlessly generated a

circuit conflict by decoupling robbery and

extortion from the Hobbs Act.

The text of the Hobbs Act adopted in 1946 clearly links the

federal violation with the common law crimes of robbery and

extortion. 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

extortion, shall be guilty of a felony.” Section 5 provides:

“Whoever 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 protestors ever stole any property

7

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

the law of the case determined by this Court in Scheidler II is

that this case no longer involves any contention about extor-

tion, for none of the anti-abortion protestors 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

concluding paragraph was ineluctable: “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.” Scheidler I], 537 U.S.,

at 411 (emphasis 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 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, either adver-

tently or inadvertently.” No. 04-1244, Pet. App.,1 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

? 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.”)

* The perception of dispassionate fairness in the disposition of this case

by Judge Wood is blurred when one discovers that the same Circuit Judge

who authored (1) the opinion that this Court reversed 8-1 in 2003, (2) the

unpublished order a year later in 2004 resuscitating the case, and (3) the

published opinion this year denying the petition for rehearing has been

throughout her judicial career a member of the Respondent National

8

be imprudent to resolve this problem of statutory inter-

pretation 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. “Impru-

dent”? 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.

B. The court of appeals needlessly jeopardized the

rights of the people to engage in vigorous

protest against a wide variety of governmental

policies.

Amici include famous civil rights activists who bore the

brunt of the violence of arch-segregationists like Bull Connor

and George Corey Wallace, but they overcame that violence

by nonviolence. The civil rights of African Americans were

the focus of major protests against a brutal pattern of

systematic discrimination in housing, employment, schooling,

and the franchise. In response to this organized violence

Organization of Women, or from the year 2000 to the present a member of

the Chicago chapter of NOW. See Sullivan's Judicial Profiles: The

Illinois Judicial Directory 840 (1996); id., 639 (1997-1998); id. 727

(1998-1999); id. 726 (1999-2000); id. 744-745 (2000-2001); id. 745

(2001-2002); id. 771 (2002-2003) id. 775 (2003-2004); and id. 780 (2004-

2005). Amici have not checked this information for accuracy, but such

information in reference publications of this sort is generally provided to

the publisher by the subject of the profile.

9

practiced both by the government and by private parties, Dr.

Martin Luther King, Jr., the principal leader of the movement

to end legalized apartheid in this country, preached and lived

a commitment of nonviolence. This commitment to nonvio-

lence, however, did not guarantee there never were any

instances in which civil rights protestors threatened violence

to the property of a merchant engaged in discriminatory

hiring practices. On the contrary, that very fact pattern was

the subject of a ruling by this Court in NAACP v. Claiborne

Hardware Co., 458 U.S. 886 (1982). As Justice Stevens

wrote in Claiborne Hardware, “Speech does not lose its

protected character simply because it may embarrass others or

coerce them into action.” /d. at 910; see also Cox vy.

Louisiana, 379 U.S. 536, 551-552 (1965) (since one of the

functions of free speech is “to invite dispute,” it may “best

serve its high purpose when it induces a condition of unrest ...

or even stirs people to anger’).

The district court considered petitioners’ arguments about

Claiborne Hardware, but preferred instead to follow Milk

Wagon Drivers of Chicago v. Meadow Dairies, 312 U.S. 287

(1941) (upholding an injunction prohibiting both violent and

nonviolent picketing activity because of the violent

environment and conduct surrounding the activity). 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 the court of appeals is as completely at odds with

Claiborne Hardware as it is in defiance of the mandate of this

Court in Scheidler Il. Claiborne Hardware set clear limits on

the imposition of vicarious or enterprise liability upon an

entire group for the conduct of some members who might

have known of and authorized illegal tactics by that

organization, while most of the membership remained truly

innocent of any illegal acts committed by the organization.

Claiborne Hardware should not be reversed under the table

by lower courts.

10

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 all of their assets

to their arch-segregationist racial-supremacist adversaries. All

it wouid 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 violence” to

the property of the Woolworth company! Similarly, Rosa

Parks’ famous refusal to sit in the back of the bus, which

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

buses, would certainly qualify as a “threat to property affect-

ing interstate commerce.” See, e.g., Martin Luther King, Jr.,

Stride Toward Freedom (1958); for brief sketches of similar

events in the civil rights movement, see, e.g., Taylor Branch,

Parting the Waters (1988); Howard Zinn, A People’s History

of the United States: 1492—Present 440-450 (1995); Frances

Fox Piven and Richard A. Cloward, Poor People’s Move-

ments: Why They Succeed, How They Fail 181-263 (1979,

with bibliography); Juan Williams, Eyes on the Prize:

America’s Civil Rights Years, 1954-1965 (1987), and Eric

Foner, The Story of American Freedom 275-87 (1998).

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.

The net effect of the Seventh Circuit’s novel reading of the

Hobbs Act is that any deed of protest that bothers an

entrenched political establishment or a powerful commercial

interest can become subject to the draconian remedy of treble

damages authorized under the federal racketeering law and,

under the view of RICO adopted by the court of appeals, even

to nation-wide injunctions to stop protesters’ “offensive”

activity all over the country, see Part III below, all because of

the acts of a few uncontrolled parties who turn up at a rally.

This surely is not the message that this country should be

sending to the world at a moment when we are concerned

with the growth of democratic values elsewhere in the world.

In times of crisis, the People rather than governmental

officials (arresting officers, angry mayors or governors or

legislators, even judges who yield to the passion of the day),

have often been the moral compass of society. Law has not

only been an instrument of establishing justice, but has also

become a means of coerced injustice. In such moments the

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, vigorous social protest cannot

flourish with a case that imposes on protesters severe

penalties under the federal racketeering laws.

C. The court of appeals needlessly undermines the

rights of working people to engage in concerted

economic activity protected under the federal

labor laws.

As the wide spectrum of opinion reflected in the makeup of

the amici suggests, the interpretation of the Hobbs Act

offered by the court of appeals can have a devastating effect

on social protest movements of all stripes. It can be

particularly injurious to the rights of organized labor to

bargain collectively over terms and conditions of employment

and to engage in concerted protected activity, such as

picketing an employer over alleged unfair labor practices.

Labor history is replete with episodes of brutal violence

against workers attempting to organize and to withhold their

services if negotiations failed. Examples include the railroad

strike of 1877, the Haymarket Square affair of 1886, the

Pullman Strike of 1895, the Minneapolis strike of 1934, and

the strike by the International Longshoremen’s Association

12

in San Francisco in 1934 that led to a general strike joined

by twenty other unions. As tension between labor and

management mounted during the Depression era, Congress

responded by enacting the Wagner Act, 49 Stat. 449 (1935),

sustained against a commerce clause challenge in NLRB vy.

Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). The NLRA,

29 U.S.C. §§ 151 et seq., protects the rights of workers to ~

organize for purposes of collective bargaining over terms and

conditions of their employment, and the right of workers to

engage in “protected concerted activity,” including picketing

and boycotting.

Adversaries of the labor movement have long advocated

the use of the Hobbs Act as a weapon against unionism. That

is precisely what this Court rejected in United States v.

Enmons, 410 U.S. 396 (1973). After Enmons the foes of

organized labor then tried to persuade Congress to amend the

Hobbs Act in this fashion, but failed in these legislative

efforts. Now these foes of organized labor have been handed

an astonishing victory by the court of appeals, whether it did

so “advertently or inadvertently.” See No. 04-1244, Pet. App.

15a (commenting on the 1948 revisions of the Hobbs Act,

which, according to the court of appeals were either “formal,

stylistic changes” or “substantive changes, whether advert-

ently or inadvertently”).

Decoupled from the two crimes specified in the Hobbs Act,

robbery and extortion, this federal statu‘. could become a

nightmare for organized labor. Under the loose construction

of the act suggested by the court of appeals, tensions between

workers and management that erupt into a vaguely defined

“threat to property affecting interstate commerce” is now the

predicate for a RICO suit in the three states of the Seventh

Circuit. The rights of workers secured under the NLRA have

not been nullified by the court of appeals in some overt, direct

assault upon the New Deal. Instead, the court of appeals has

eroded the meaning of the Hobbs Act and in so doing has

invited foes of organized labor to use the federal racketeering

13

Statute as an end run around the agency charged with pro-

tecting concerted union activity, the NLRB.

The opinion of the court of appeals can be read as an open

invitation to foes of organized labor to file RICO suits against

labor unions whenever two or more workers threatens the

property rights of someone engaged in interstate commerce,

through trespass or otherwise. Thus, if RICO had been on the

books back in the 1930s and if the lower court’s reading of

RICO is right, the UAW and the Reuther brothers would have

been vulnerable to losing all of their assets. All it would have

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

viewed the “trespass” by auto workers on the Ford Motor

Company’s property as a “threat of violence to property” to

Ford during the famous UAW sit-down strike at the Ford

plant in 1937, even though no one would say that the UAW

workers were robbing Henry Ford or engaging in extortion!

The construction of the Hobbs Act proposed by the court of

appeals, is moreover, irreconcilable with United States v.

Enmons, 410 U.S. 396 (1973). Enmons involved serious

allegations of violence against a company by union members,

who allegedly fired high-power rifles at the employer's

facility and blew up a company transformer, in order to

achieve higher wages. Nonetheless, this Court affirmed the

dismissal of the one-count Hobbs Act indictment in the case.

As Justice Stewart noted, “In the nearly three decades that

have passed since the enactment of the Hobbs Act, no

reported case has upheld the theory that the Act proscribes the

use of force to achieve legitimate collective-bargaining

demands.” /d. at 408.

Justice Stewart addressed the issue of excessive punish-

ment as follows: “The worker who threw a punch on a picket

line, or the striker who deflated the tires on his employer’s

truck would be subject to a Hobbs Act prosecution and the

possibility of 20 years’ imprisonment and a $10,000 fine.” /d.

at 410.

14

Just as the decision of the court of appeals is irreconcilable

with Enmons, so too it should be noted that Enmons is

entirely in harmony with Scheidler 11, which rested upon the

very distinction between extortion and coercion that the Court

had addressed in Enmons: “The Government’s broad concept

of extortion—the ‘wrongful’ use of force to obtain even the

legitimate union demands of higher wages—is not easily

restricted. It would cover all overtly coercive conduct in the

course of an economic strike, obstructing, delaying, or af-

fecting commerce.” /d. at 410 (emphasis added).

As with civil rights leaders, see Part II B above, so also

labor leaders know that as a practical matter, the criterion the

lower court invented is impossible to maintain. Union leaders

can try mightily to impress upon the rank and file the need to

picket in a peaceful manner, but tempers can fly in these

situations, especially if there is a prolonged strike. As this

Court concluded in Enmons, “it would require statutory

language much more explicit than that before us here to lead

to the conclusion that Congress intended to put the Federal

Government in the business of policing the orderly conduct of

strikes. Neither the language of the Hobbs Act nor its

legislative history can justify the conclusion that Congress

intended to work such an extraordinary change in federal

labor law or such an unprecedented incursion into the

criminal jurisdiction of the States.” /d. at 411.

The logic of the lower court is completely at odds with this

Court’s holding in Enmons and in Scheidler Il, neither of

which stand for the astonishing proposition that the Hobbs

Act may be prosecuted or be understood without reference to

the two crimes specified in the Act, robbery and extortion.

For this reason alone, the Court should issue the writ to

resolve the conflict between the judgment below and the

mandate of this Court in this very case and with its ruling in

Enmons. Congress considered and rejected the opportunity to

amend the Hobbs Act to allow it to apply to labor activity.

15

We, the People, did not ordain unelected judges to do to a

Statute what our representatives in the political branches

expressly refused to do.

iil. THE COURT OF APPEALS IMPROPERLY

PERPETUATED A NATIONWIDE INJUNC-

TION AGAINST UNPOPULAR CIVIL PROTES-

TORS FOR A FULL TWO YEARS AFTER THIS

COURT HAD ORDERED THE INJUNCTION

VACATED.

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

district court entered a nationwide permanent injunction

regulating petitioners’ future protest activities at abortion

clinics. No 04-1244, Pet. App., 141a-174a. The court of

appeals affirmed “in all respects.” /d. at 61a (last word of

2001 order).

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.

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

remanding the case to the district court to determine whether

four unspecified “acts or threats of physical violence to any

16

person or property” are sufficient to support the nationwide

injunction it imposed. No. 04-1244, Pet. App. 25a-29a.

Amici supposed further that it was because the case was

definitively resolved in favor of the petitioners that this Court

determined that it need not address the moot question

“whether a private plaintiff in a civil RICO action is entitled

to injunctive relief under 18 U.S.C. § 1964.” In our brief on

the merits in Scheidler I] we addressed that question. We

touch on this issue now briefly, offering the Court a per-

spective on injunctions that comes from the considerable

cumulative experience of the amici as social activists engaged

in civil protest on a wide variety of contentious and difficult

issues, including animal rights, civil rights, death penalty,

disability issues, international human rights, environmental

protection, and war and peace.

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 for years

to come. See No. 04-1244, Pet. App. 141a-142a (on July 28,

1999, district court entered injunction, to run for 12 years).

The duration of this injunction deeply troubles the amici. This

is not a desegregation case from the 1950s and 1960s

requiring federal courts to retain jurisdiction over injunctions

precisely because of recalcitrant school boards openly

defying court orders. This is a case about social activists

using tactics similar to those used by SNCC and other civil

rights activists in the 1960s—sitting-in and sitting-down—to

stop activity they deem immoral. Not all of the amici agree

with petitioners on the substantive issue of abortion, but all of

us have a hard time understanding why a lower court would

so brazenly disregard the words of this Court that seem to us

plain: “Without an underlying RICO violation, the injunction

issued by the District Court must necessarily be vacated.”

17

This Court 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 when this

Court issues an order to vacate an injunction, the normal

assumption would be that it would be done promptly. When

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

v. Bd. of Educ., 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 intentionally left to the

district courts the task of devising desegregation plans in their

region of the country. But the order in this case 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. of New Kent County, 391 U.S.430, 439 (1968).

The order in this case 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 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. It is now the

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

injunction should be vacated now.

When First Amendment right are implicated, this Court

has given explicit directions for the speed with which it

expects its mandates to be complied with. For example,

when the government obtained an injunction from one court

of appeals against the publication of the Pentagon Papers,

this Court granted expedited review, reversed the circuit that

had granted the injunction, vacated the stays that the Court

had ordered, and directed: “The judgments shall issue

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

713,714 (1971) (emphasis added). Justice Black took the

view that “every moment's continuance of the injunctions

18

against these newspapers amounts to a flagrant, inde-

fensible, and continuing violation of the First Amendment.”

Id. at 715 (Black, J., concurring). In Carroll v. Princess

Anne, 393 U.S. 175 (1968), a white supremacist organi-

zation conducted a public rally at which “aggressively and

militantly racist” speakers attacked “primarily Negroes and,

secondarily, Jews” with “deliberately derogatory, insulting,

and threatening language.” /d. at 176. The state appellate

tribunal had already dissolved the permanent injunction,

which was to last for ten months on the ground that “the

period of time was unreasonable and that it was arbitrary to

assume that a clear and present danger of civil disturbance

and riot would persist for ten months.” /d. at 177-78. This

Court took the case to reverse the ex parte temporary

restraining order of ten days’ duration.

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 Federal Access to

Clinic Entrance Act, 18 U.S.C. § 248. 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, many of the amici are labor unions with collective

memory of the nefarious use of injunctions to prohibit

workers from strikes and boycotts and other economic

activity to protest that inadequacy of compensation that does

not amount to a “living wage,” defined in religious social

thought as the amount of money “necessary to raise a family

in decent and frugal comfort.” See, e.g, Leo X1il, Rerum

Novarum (1891).

A distinguished member of this Court contributed the

definitive study of the misuse of federal and state judicial

authority in ordering workers and unions to refrain froin

19

concerted activity now protected under the NLRA. See Felix

Frankfurter and Nathan Greene, The Labor Injunction (1930).

Congress responded with the Norris-La Guardia Act, 47 Stat.

70, 29 U.S.C. §§ 101-115 (prohibiting labor injunctions). But

see Richard A. Resbin, Jr., A Strike Like No Other Strike:

Law & Resistance during the Pittson Coal Strike of 1989-

1990 27-28, 39, 57-58, 62-64, 109-110, 148-50, 155-56, 163-

67, 197-99 (2002) (detailing injunctions against strikers). If

uncorrected by this Court, the opinion of the court of appeals

will invite foes of organized labor to avoid the already

weakened restraint against labor injunctions by the simple

device of using civil RICO against unions.

Finally, amici have considerable experience with public

demonstrations of popular dissent from controversial policies.

They are often ordered by judges not to do this or that. For

example, a large group of Americans, including several of the

amici, regularly protest against the exportation of torture and

the assassination of political opponents of brutal regimes.

They do so in front of Fort Benning, Georgia, which houses a

program for foreign military and security officials that has

included training in the use of torture. The alumni of the

School of the Americas have been engaged in death squads.

They include the assassins of Archbishop Oscar Romero and

of six Jesuit priests and their housekeepers in El Salvador.

Each year the “security” arrangements at Ft. Benning get

tighter, and each year a federal judge places further re-

strictions upon activity that amici deem essential to a vital

democracy. When elderly nuns cross the line the judge draws

in his imaginary sand, he then imposes the maximum

sentence allowable, ordering the nuns off to long terms of

incarceration for daring to stand against a policy they deem at

odds 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.

20

The decision by the court of appeals to ignore the mandate

of this Court dissolving the injunction in this case has the

effect of emboldening judges all over the country who are so

minded to issue injunctive relief where they should be

thinking instead of preserving the fragile ability of the People

to bring their government back to decency and sanity.

CONCLUSION

The Court should either issue the writ in Nos. 04-1244 and

04-1352 and summarily reverse on the issues in which the

court of appeals has strayed far from the Court's mandate, or

it should issue an extraordinary writ of mandamus

commensurate with the extraordinary mishandling of this

case by of the court of appeals. If the Court grants the writ

and places the case on its docket for plenary review, amici

will brief the Court on numerous examples from the history

of the struggle for the effective protection of the civil rights

of the emancipated slaves, of women, and of working people,

that illustrate that the view of the court of appeals is not only

inconsistent with the legislative history of the Hobbs Act and

of RICO, but also with the broader social and political history

of the American people.

Respectfully submitted,

JOSEPH MATHIAS COSGROVE EDWARD MCGLYNN GAFFNEY, JR. *

Counsel for Martin Sheen Valparaiso University School

1460 Wyoming Ave. of Law

Forty Fort, PA 18704 656 S. Greenwich Street

(570) 823-9078 Valparaiso, IN 46383

(219) 465-7860

* Counsel of Record

APPENDIX

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APPENDIX A

Statements of Interest of Amici Curiae

Communities and Voluntary Associations

As noted in the text of the brief, amici are voluntary

associations and individuals who engage in protest 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 arms race, 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. Lana Jacobs (current

executive director of CL), 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 nonviolem civil disobedience

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 nationwide injunction against

anyone associated with the Pro-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

engages in education of its members and the public, espe-

cially on the death penalty, through publishing booklets,

—— athe ee ee A. Le me NO re Ce ee

2a

brochures, and treatises on how to effect change through

raising public 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

controversial matters in a nonviolent fashion. This right is

jeopardized when federal courts penalize citizens for exer-

cising 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.

The Catholic Peace Fellowship (CPF) is a nationwide

organization 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 disobedi-

ence 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 commu-

nity provides hospitality to homeless families while working

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 Catho-

lic 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

direci 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

4a

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.

Democrats for Life of America, with chapters in 19 states,

is a political organization that supports Democratic politicians

and candidates for public office who are committed to

legislative initiatives that will empower women and their

children, persons on death row, and the elderly and infirm.

The Eighth Day Center for Justice is a community com-

posed 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 motivated 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

considered 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 injunc-

tion under RICO represents “clear and present danger tc

Sa

future prospects for the lawful exercise of our liberties,

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

assembly 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

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. Thus St. Sabina’s has

crusaded against a host of social evils.

Feminists for Life of New York is a pro-woman, pro-life

organization that advocates for change for women and their

children. Some of its members engage in civil disobedience.

In the twelve years since its inception, members have worn

costumes of the early suffragists, stationing themselves out-

side of convention centers and libraries, to call attention to

issues such as domestic violence, child abuse, and child

welfare rights. Like Susan B. Anthony, they have worn gags

on their mouths to protest the silencing of women’s voices.

They participate in a vigil at the Hall of Justice on every

second Friday of the month to protest the death penalty.

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

workers, especially low-wage workers. For these reasons,

’ [WJ is concerned about the possible misuse of the fed-

6a

eral racketeering statute (RICO) against workers in a labor

organizing context.

The International Brotherhood of Electrical Workers

(IBEW) represents approximately 750,000 members who

work in a wide variety of fields, including utilities, construc-

tion, telecommunications, broadcasting, manufacturing, rail-

roads and government. The IBEW has members in both .

the United States and Canada and stands out among the

American unions in the AFL-CIO because it is among the

largest and has members in so many skilled occupations

The International Brotherhood of Teamsters (IBT), with

1.4 million members, is one of the largest labor unions in the

world. It is also the most diverse union in the U.S., with

affiliated Local Unions in every state. IBT represents mem-

bers in almost every craft and industry, including transpor-

tation (trucking, rail and air), manufacturing, warehousing,

distribution, and many public employees. The Union is

politically active, represents its members vigorously, and

often exercises its rights and the rights of its members to

engage in picketing, other economic action, rallies, demon-

strations and marches in support of the interests of its

members and working men and women generally.

Nevada Desert Experience has since 1983 organized

nonviolent civil disobedience at the U.S. nuclear test site in

Mercury, 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

witnessing for peace in our world: Eastern Orthodox Chris-

tianity has for 2000 years affirmed the Sacredness of human

life from conception to death. This, we understand, is the

7a

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 imper-

ative 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 800,000 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

abuse of backyard dogs. PETA works through public educa-

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

tion, special events, celebrity involvement, and protest

campaigns.

The Peter Maurin Ceuter 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) evan-

gelization in the Catholic Worker tradition through operating

the Catholic Worker Bookstore; (2) Carrying out the works of

mercy through operating a furniture and household goods

exchange, whereby people who have more than they need

give it to the Center, which distributes it to needy people; and

(3) organizing for peace and justice through solidarity with

the people of Puerto Rico in their effort to de-colonize, and

8a

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

misapplication of the law in this way permits the government

to single out and criminalize movements for social change

virtually at will. Affording the government power of this

nature renders democratic practices timid and superficial and

essentially disempowers the People in the political process.

To protect popular, and especially unpopular, political ex-

pression, 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

their swords into plowshares, and their spears into pruning

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., his deceased brother

Philip Berrigan, and Elizabeth McAlister, were leaders in the

opposition to the Vietnam War. From burning draft files to

organizing larger civil disobedience actions, they provided

the peace movement with a sharp focus. Their actions against

militarism and the nuclear arms race continue today. 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 racketeer-influenced corrupt organizations.

Fr. Berrigan and Ms. McAlister join this brief in their

individual capacities, as do the following Plowshares

Activists: John Dear, S.J., Peter DeMott, Clare Grady, Ellen

Grady, Art Laffin, Paul Magno, Patrick O'Neill, and Kathy

Boylan Shields. All of these activists have spent many years

imprisoned for their nonviolent protest against war.

9a

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

various traditions and streams of the church; hosting an

annual program of voluntary service for education, ministry,

and discipleship. Members of Sojourners seek to be guided in

their lives and work by the biblical principles of justice,

mercy, and humility.

Vieques Support Committee is an organization that has

helped to organize civil disobedience to protest the repeated

bombing of Vieques Island in Puerto Rico by the United

States Navy.

Witnesses for Reconciliation [WFR] was formerly the

Conimittee 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

Committee 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.

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

10a

these capacities used public witness to educate and challenge

the public.

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

University of Notre Dame, and the national president of the

Catholic Peace Fellowship.

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 Uniied

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

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

“extortion” 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 Wate’: [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-

lla

stration at Ft. Benning 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 Star-

throwers, 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.

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.

12a

Richard Deats is the editor of Fellowship Magazine, the

publication of the Fellowship of Reconciliation [FOR], the

largest, oldest interfaith peace organization in the United

States. Since 1915 FOR has carried on programs and

educational projects concerned with domestic and inter-

national peace and justice, nonviolent alternatives to conflict,

and the rights of conscience. FOR promotes nonviolence and

has members from many religious and ethnic traditions. It is a

part of the International Fellowship of Reconciliation, which

has affiliates in over 40 countries. FOR was instrumental,

maybe critical, in bringing the Gandhian theory of nonviolent

activism into play during the Civil Rights Revolution.

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.

Mary Anne Flores, Clare Grady, and Jessica Stewart are

members of the Ithaca Peace Community, a group that

expresses concern about social justice issues and facilitates

the representation of those who would otherwise remain

voiceless and unheard in our society. These three women

have engaged in nonviolent direct action that has led to their

arrest for trespass upon government property. For example,

they have served sentences for trespass at the Hancock

Airfield in Syracuse, NY, in order to protest the bombing of

the people of Iraq.

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

13a

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

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.

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 Iraa 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 Recon-

ciliation, a board member of the Seamless Garment Network,

and a long-time activist 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

demonstrations.

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.

John W. Oliver is the coordinator of the Orthodox Peace

Fellowship in North America. He is professor emeritus of

history at Malone College.

l4a

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. -

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 local community, and

sting operations 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

protest 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

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-

1Sa

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 Woreester,

MA, a lay Catholic pacifist community which offers hos-

pitality 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 diso-

bedience is an American tradition, one that has brought much

good to our country. We advocate its use when laws

contradict the needs of the common good and the greater law

of God'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

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

Des Moines Catholic Worker community in nonviolent

Gandhian activism at Offutt Airforce 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

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

16a

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 a Professor of Political Science at the

University of San Francisco. He is the principal editor of

Nonviolent Social Movements (Blackwell, 1999). His re-

search interests have included the impact of grassroots politi-

cal movements on policy and government. Prior to his

academic career, he engaged in nonviolent civil disobedi-

ence campaigns against nuclear power, nuclear weapons

and apartheid and served as a staff member and nonvio-

lence trainer for organizations supporting nonviolent civil

disobedience.