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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0087%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1151

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0087%3A11. Public record. Not legal advice.