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

ne Court, U.S |

FILL D

OCT 2 0 2005

Nos. 04-1244 & 04-1352 OFFICE OF THE CLERK

In The

Supreme Court of the United States

+.

JOSEPH SCHEIDLER, ET AL.,

Petitioners,

Vv.

NATIONAL ORGANIZATION

FOR WOMEN, INC., ET AL.,

Respondents.

OPERATION RESCUE,

Petitioners,

Vv.

NATIONAL ORGANIZATION

FOR WOMEN, INC., ET AL.,

Respondents.

= Pw

On Writs of Certiorari To The United States

Court of Appeals For The Seventh Circuit

-

BRIEF OF EMILY LYONS AS AMICA CURIAE

IN SUPPORT OF RESPONDENTS

S

PAMELA L. SUMNERS

528 N. HUMPHREY AVENUE

OAK PARK, IL 60302

312.213.1725

Counsel of Record for Amica Curiae Emily Lyons

TABLE OF CONTENTS

pg FREESE Raa NI at il

INTEREST OF AMICA CURIAE ........cccccesseccessessessecessncsoees l

DURGRAAEET CU CIID occsissccisctenincstereencsciintenitisincninasite 3

I i a ae 4

VIOLENT CRIMINAL ACTIVITY IS NEITHER PROTECTED

SPEECH NOR HEROIC POLITICAL DISSENT ..................... 4

A. Violent Criminal Activity Is Not

PURI BBTEDD onascicciencececatvessstcoveverveces 4

B. Violent Criminal Activity Is Not

Heroic Political Dissent ........................ 1]

ETE REA Re COS MEE eI 16

TABLE OF AUTHORITIES

Cases

Adderly v. Florida, 389 U.S. 39 (1966) ..........:cccccceceeees 6

Brown v. Louisiana, 383 U.S. 131 (1966) ................00. 6

Congressional Materials

Pe Ce FE BEE COO crtertistetnntmntgrimineninien 12

Other Sources

“Rudolph Sentenced to Life in Atlanta Bombings,”

Chicago Free Press (Aug. 24, 2005) .........:ccccceseeeeees 13

Frederick Clarkson, “Terror in the Name of the Lord,” Ms.

SERIE, GOT vevtcerinaninsinhacncinsininentnisninisiniaiaveis 7

Abigail A. Fuller, “Conflict Resolution and Conservative

Ideology: The Use of Civil Disobedience by Operation

Rescue,” available at www.colorado.edu/conflict/ 6, 10

Stephen J. Hedges, ef al., “Abortion Rights Advocates

Have Alleged a Conspiracy, but the Jury is Still Out,”

U. S. News & World Rep. (Nov. 14, 1994) ........:cccc0ee 8

Dr. Warren M. Hern, Report to U.S. Department of Justice,

“Anti-Abortion Activity at Boulder Abortion Clinic,

1975-1995,” at www.drhern.com/jdrpt!95.htm _.......... 9

Blake Morrison, “Special Report: Eric Rudolph Writes

Ilome,” USA Today (July 6, 2005) ............:::cceee 15, 16

“NOW v. Scheidler Timeline: The complete story,”

Th

National NOW Times (Fall 2002) ............:cccccccseeeesseeeees 7

“Olympic bomber gets-two life sentences for attack,”

Agence France Presse — English

ST Ss II ida iinctabciniciiinessitpicechishiiiedn ehesisnascalpbigtcebidtings 15

George Orwell, “Politics and the English Language,” in

The Orwell Reader 363 (1984 €d.) ......cccccccccccssceeeeeeeees 5

George Orwell, 1984 (1949) ......cccccoscsecsssssocccesenscrseseses 7

Jay Reeves, “An unrepentant Rudolph gets life in prison

for deadly bombing at abortion clinic,” The Associated

Press Online (July 18, 2005S) .......cccccsrcocsccsscscsescccesoreees 14

Eric Robert Rudolph, “Statement of Eric Robert Rudolph,”

reprinted in The Birmingham News,

I Se I Nala ceticaerdtaicainish teeitdinkaissnnemeiabeiiia 16

Joni Scott, “From Hate Rhetoric to Hate Crime,” The

SEE COT, CGP dctestinnsesicteteswvcdnnstcnssnessepiaion 8

Add Seymour, Jr., “Bomber Sentencing Monday in

Atlanta: Olympic blast victims will face Rudolph,”

Atlanta Journal-Constitution (Aug. 21, 2005) ............ 13

Howard Sitkoff, The Struggle for Black Equality

SUNN nchsitdahiaetiliasutanarictaaicesiaigiicsdeuncidsdicinapetib dliindesbiinetaedas 5

Jill Stanek, “An interview with Illinois pro-life leaders who

make history,” //linois Leader (July 15, 2002) ........... 10

iv

U.S. Department of Justice Press Release, “Eric Rudolph

Charged In Olympic Park Bombing” (Oct. 14, 1998),

available at www.usdoj.gov/ opa/pr/1998/

CaCO ST PUTTIN . cnconsciscccsimsutetccsiinsntnipeinidiaicisiaiaiin 14

INTEREST OF THE AMICA CURIAE’

At 7:30.a.m. a bomb that had been placed in a potted plant

outside the clinic | worked in exploded about 15 feet from

where I was standing. Someone who considers himself

pro-life murdered a police officer.

The pipe bomb contained dynamite and nails. I am often

asked what my injuries were. I usually ask them, “How

much time do you have?” I had first, second, and third

degree burns. The trauma surgeon described it by saying

that I had hundreds of wounds. He had served in Desert

Storm and had seen others who had been bombed. He was

shocked to see a bombing victim back in the United States.

Metal tore my left eye to the extent that it had to be

removed. Metal also shot into my right eye. After several

operations and months of waiting, I am able to see well

enough to read a little, but my sight will never be like it

was. My face, eye sockets, and teeth were broken, my left

ear was ruptured, my right hand was mangled, a hole

about the size of a fist was torn in my abdomen, exposing

my intestines. Both knees were so full of nails that they

had to be opened and the nails cleaned out before they

would move again. The skin was torn off both shins,

exposing bone and requiring skin grafts. Both bones in my

No counsel for any party had any role in authoring this brief,

and no persons other than amica curiae and her counse! made any

monetary contribution to its preparation and submission. Written

consents from the parties to the filing of amicus briefs in this case are

on file with the Clerk of the Court.

2

lower left leg were shattered, and the doctors feared

amputation of one leg. I had dozens of complete nails

inside my body, and hundreds of metal fragments and

other debris. The blast was so strong it shredded my

clothing and blew my shoes off.

I have had 12 operations this year and expect many more

next year. As a result, | am a trained nurse with 20 years

experience who cannot write, read or stand for long

periods of time.’

Emily Lyons, the author of these words, has an

interest in seeing that terrorists like Eric Rudolph, who

planted the 1998 Birmingham bomb that so gravely injured

her, are vigorously prosecuted, including under federal

statutes. As a survivor of that bombing who can no longer

work as a nurse, she is deeply troubled by Petitioners’

attempts to cloak violence in the garb of protected

expression.

Emily Lyons simply reported to work at the

women’s clinic where she had served for four years, New

Woman/All Women, on January 29, 1998. No one asked

her if she consented to trade her eyesight or physical

vitality for the privilege. Having endured the horror of that

day and the horror of repeated surgeries to return to her a

fraction of her former body and life before that day, she

retains the courage and the belief in the rule of law to

caution her fellow citizens: “Do not allow anyone or

anything, be it fear or intimidation, to make you lose sight

: This speech, “To Hell and Back,” was given by Emily Lyons

in 1998. Emily Lyons has now had 21 surgeries.

3

of the main goal—to provide and support a woman’s right

to reproductive health as they see fit.” /d.

SUMMARY OF ARGUMENT

This case is not a judicial plebiscite on the right to

peaceful protest activities, although Petitioners labor

mightily to transform it into one.

Contrary to Petitioners’ suggestion, bombs,

blockaaes and blitzes of women’s health clinics share no

kinship with protected forms of nonviolent expression

epitomized by the civil rights sit-ins that are seared into

our nation’s conscience. Nor do they have anything in

common with political protestors of any stripe accorded

First Amendment protection. Those who plant bombs or

use clubs, fists, violent blockades, or nefarious means to

express their dissent from this Court’s substantive due

process jurisprudence are criminals who should be

punished as criminals, however sincere their religious or

political convictions. Architects and purveyors of

violence, whether to the degree Emily Lyons suffered or to

the degree the jury found in this case, are criminals, not

advocates, hoodlums, not heroes. “Free speech” is a value

that should lead us as a polity to the truth. “Free speech,”

in the hands of the Petitioners, is a tool of dissimulation.

4

ARGUMENT

VIOLENT CRIMINAL ACTIVITY IS NEITHER

PROTECTED SPEECH NOR HEROIC POLITICAL

DISSENT

Petitioners describe these proceedings as

Dickensian,’ but their briefs are actually more evocative of

George Orwell. Petitioners appropriate the mantle of the

Civil Rights Movement to cloak tactics never

countenanced by that movement. They wear the

democratic constitutionalist’s robes before this Court, but

only by way of camouflage. Their rhetoric is not their

reality.

A. Violent Criminal Activity Is Not

Protected Speech.

In Petitioners’ Newspeak, acts of violence and

physical blockades are merely “vigorous protests.”

(Scheidler Pet. for Cert. at 1.) What was experienced by

patients at the clinics as assault and obstruction is

resurrected on the tabula rasa of legal briefs as “sit-ins.”

(OR Pet. for Cert. at 3, 4.n.3.)* They insist that a factually

specific, narrow ruling by the Seventh Circuit, dealing with

a discrete injunction, has extravagant reach. They warn of

“the threat posed by the decision below ... to labor and

' Petitioners liken this proceeding to the Chancery suit,

Jarndyce v. Jarndyce, described in Charles Dickens’ Bleak House.

- Interestingly, OR concedes that the conduct it now casts as

“demonstrations” and “sit-ins” by “political protestors” were in fact

“obstructive.” (See OR Pet. for Cert. at 5.)

5

political protestors.” (Scheidler Rep. Br. at 10.) They

insist, “There is no reason why, if the Seventh Circuit’s

latest interpretation of the Hobbs Act is correct, RICO

actions based on predicate Hobbs Act offenses could not

also be punished against social protestors of all stripes,

including those demonstrating for civil rights,

cavironmental causes, or animal rights.” (Scheidler Pet.

for Cert. at 23.) Conveniently, they forget that NOW never

once attempted to sue true protesters, those who exercise

their First Amendment right to pray, leaflet, shout, or even

engage in name-calling.

Petitioners’ revision of the history of clinic

blockades and clinic violence should be noted for the

Orwellian feat that it is: “the defense of the indefensible.”

George Orwell, “Politics and the English Language,” in

The Orwell Reader 363 (1984 ed.). In this rhetorical

world, the Civil Rights sit-ins, the objective of which was

to secure access to public accommodations on the same

terms as white citizens, are analogized to the blockaders at

the clinics. But the truth of the desegregation sit-ins

cannot be revised by false analogy: the protestors wanted

a place at the table, not to keep other patrons from theirs.

The sit-in manual commanded: “Don’t strike back, or curse

if attacked ... Don’t block entrances.” See Howard

Sitkoff, The Struggle for Black Equality 67 (1993 ed.).

This Court knows the difference between seeking

access and blocking it, having upheld the right “in a

peaceable and orderly manner to protest by silent and

reproachful presence,*in a place where the protestant has

: Or, it should be noted, to chant, speak, counsel or attempt to

persuade, consistent with reasonable time, place and manner

6

every right to be,” Brown v. Louisiana, 383 U.S. 131, 142

(1966), while allowing to stand the criminal-trespass

convictions of 200 students who blocked access to the jail

to protest the arrest of civil rights demonstrators. Adderly

v. Florida, 389 U.S. 39 (1966). The tactics Petitioners

seek to defend call to mind not the lunch counters of

Greensboro, but George Wallace blocking the doors at

Tuscaloosa.

The Respondents’ construction of the Hobbs Act

would not render the Reverend King a racketeer or

transform Gandhi into an extortionist. Contrary to

Petitioners’ insinuations, it is not “social protest” that we

punish when we punish violence. Social protest does not

mangle bodies. Gandhi had no gunpowder. Dr. King did

not block white citizens from exercising the franchise by

burning the voting booth or forcing them to run a gauntlet

of angry African-Americans hurling threats or fists at

them. Fifty-lb. sticks of dynamite, galvanized nails, and

anti-personnel! backup bombs are not political tracts.

The rhetorical sleights-of-hand that characterize

Petitioners’ image-sculpting provide insight into why they

chose to compare the violent persons in their ranks to those

peaceful protestors who marched over Selma’s Edmund

Pettus Bridge. Operation Rescue is a two-faced Janus,

woundedly protesting its moderation here while presenting

quite another face to the troops. For public and judicial

consumption, “blitzes” and blockades are reinvented as

Clara Bartonesque “rescues,” and angry haranguers of

patients and clinic staff are “sidewalk counselors.” See

Abigail A. Fuller, “Conflict Resolution and Conservative

constraints. Threats of bodily harm are not reasonable.

7

Ideology: The Use of Civil Disobedience by Operation

Rescue,” available at www.colorado.edu/conflict/. In

Petitioners’ briefs here, a clinic is a clinic. Among the

troops, a clinic is “a ‘death mill’ (the word ‘mill’ connoting

a factory where procedures are performed rotely) or an

‘abortuary.’” Jd. Pro-choice volunteers who assist patients

in navigating the gauntlet at an Operation Rescue

occupation are “deathscorts, a play on the word escort,

which is used by prochoice people.” Jd.

In this Court, Petitioners are respectful and

respectable citizens who would never use language worthy

of Big Brother’s “Two Minutes’ Hate” as they exhort their

own to occupy the premises and obstruct access to medical

procedures. When the public relations antennae are

relaxed in their own circles, however, their words are less

measured and their message delivered with a menace that

is not always encrypted. When forming PLAN, Petitioner

Scheidler vowed to stop abortion “by any means

necessary” and proclaimed “a year of pain and fear” for

anyone seeking or providing an abortion. See “NOW v.

Scheidler Timeline: The complete story,” National NOW

Times (Fall 2002), available at www.findarticles.com. The

man who described his brainchild as a “pro-life Mafia” in

other fora professes astonishment at being sued under

RICO in the judicial forum. See id See also Frederick

Clarkson, “Terror in the Name of the Lord,” Ms. Magazine

(July 2002), at www.msmagazine.com.

Petitioner Scheidler insists that he does not condone

violence and that he supports robust speech. He has a

strange notion of violence and a strange concept of the

. See George Orwell, /984 (1949, HBJ: New York).