Respondents Brief — National Organization for Women, Inc. v. Scheidler
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In THE
Supreme Court of the United States ea
OCTOBER TERM, 1993
NATIONAL ORGANIZATION FOR WOMEN, INC., ef al.,
Petitioners,
Vv.
JOSEPH SCHEIDLER, et al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit
BRIEF FOR RESPONDENTS
RANDALL A. TERRY, PROJECT LIFE,
AND OPERATION RESCUE
KEITH 2i. FOURNIER Jay ALAN SEKULOW
AMERICAN CENTER FOR LAW (Counsel of Record)
AND JUSTICE WALTER M. WEBER
1000 Centerville Turnpike AMERICAN CENTER FOR
Virginia Beach, VA 23464 LAW AND JUSTICE
(804) 528-7570 1000 Thomas Jefferson St., N.W.
VINCENT P. MCCARTHY Suite 520
8 South ase Street Washington, D.C. 20007
New Milford, CT 06776 (202) 887-2273
- (208) 855-0923
Attorneys for Respondents Randall A. Terry,
Project Life, and Operation Rescue
WILSON - Eras Pantin Co.. Inc. - 789-0096 - WasHincTON. D.C. 20001
'BEST AVAILABLE COPY! |
QUESTIONS PRESENTED
1. Whether the federal RICO statute, 18 U.S.C.
§ 1962(c) and (d), applies to social protest activities
undertaken with a complete absence of any mercenary
purpose?
2. Whether respondents’ sit-ins and other nonviolent
social protest activities constitute predicate “extortion”
under the Hobbs Act, 18 U.S.C. § 1951?
3. Whether petitioners lack standing?
(i)
TABLE OF CONTENTS
Ug 8) BD gh kt |
TABLE OF AUTHORITIES ...... ieiocibdahaehsteadigiesasiassiipenmansan
Teen a sccccmemiennninesaasnnsonsons
STATEMENT OF CASE .................. vishidinabsaiaiesaectesssetale
1.
I Sn .nceemsaiamemustmesmmenenene
ARGUMENT ......... Reale tnibhdink nchcsianebainithioisnamadahinibinnibnnsasehs
| 8
Il.
PETITIONERS DWHO AND SUMMIT LACK
aa ad ad clash sahepsenconnsonicn
A. Petitioners Lack Article III Standing...
1. No allegation by DWHO or Summit
es cussmuowene
2. No allegations by DWHO or Summit
against Terry or Operation Rescue ..........
B. Petitioners Lack RICO Standing _.................
PETITIONERS’ RICO CLAIMS MUST FAIL
BECAUSE RESPONDENTS’ ACTIVITIES
REFLECT NO MERCENARY PURPOSE.......
A. RICO Does Not Apply to Social Protest Ac-
tivities Undertaken Without Any Mercenary
Sac AR leo
2. The statutory language _......000.0000000000..
ee a ntesbsduainiotiinsan
b. Title, preface, definitions, remedies....
(iii)
11
15
17
iv
TABLE OF CONTENTS—Continued
Sie, MUI aca a ee
B. Respondents’ Activities Reflect No Mercenary
GIRS Th gE Sea SA Ee
Ill. PETITIONERS HAVE FAILED TO ALLEGE
ANY PREDICATE ACTS UNDER RICO...........
A. Petitioners Cannot Rely Upon Insinuations
"eo
B. Petitioners’ Have Not Alleged Conduct which
Constitutes Exortion under the Hobbs Act....
1. The missing elements _.......0..-.-
a. No allegation of “obtaining” ................
i. Plain meaning of “obtaining’’....
iii Meaning of “obtaining” under
New York extortion law ..............
iii. Meaning of “obtaining” at com-
mon law: extortion vs. coercion..
(a). Extortion at common law....
(b). Statutory distinction be-
tween extortion and coer-
b. No allegation of “property” .................
c. No allegation of “force, violence, or
2. The rules of statutory construction _........
a. Avoiding constitutional difficulties......
RS Ra Reels RT rs ARO
v
TABLE OF AUTHORITIES
Cases Page
Agency Holding Corp. v. Malley-Duff & Associates,
Pint, GE a ee CED whtecttiaiet ns, 23
Bender v. Williamsport Area School Dist., 475 U.S.
SE CI ais arcsdecniedinveeesscssccnseebbiatnnitheyieacsiabuattdns 8,9
Blum v. Bacon, 457 U.S. 182 (1982) ................000...... 26
Board of Regents v. Roth, 408 U.S. 564 (1972)... 39
Bray v. Alexandria Women’s Health Clinic, 118
A | eee rea 26
Brennan v. Arnheim & Neely, Inc., 410 U.S. 512
6, RPE IO AION SA IPE Kae 2 OO cle Bs 21
Cantwell v. Connecticut, 310 U.S. 296 (1940)... 43
Carpenter v. United States, 484 U.S. 19 (1987) .... 40
City of Houston v. Hill, 482 U.S. 451 (1987) —...... 43
Cohen v. California, 403 U.S. 15 (1971) —...............- 43
Commissioner v. Engle, 464 U.S. 206 (1984)........... 17
Crandon v. United States, 494 U.S. 152 (1990) ........ 17
Cuyler v. Sullivan, 446 U.S. 335 (1980) -..........-...... 27
Dandridge v. Williams, 397 U.S. 471 (1970) ........... 26, 27
Edward J. DeBartolo Corp. v. Florida Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568
(166 oS ae eee ee 43
Fvans v. United States, 112 S. Ct. 1881 (1992) __ 32, 33, 34
FTC v. Superior Court Trial Lawyers Ass’n, 493
of as: Pen tee ee 17
Gollust v. Mendell, 111 S. Ct. 2173 (1991) ......0000... 21
Gregory v. Ashcroft, 111 S. Ct. 2395 (1991) _......... 44
H.J. Inc. v. Northwestern Bell Telephone Co., 492
TRB, Se Cr ils a ee as 20
Holmes v. SIPC, 112 S. Ct. 1811 (1992) .........11, 13, 14, 16
Levine v. United States, 383 U.S. 265 (1966) _....... 10
Lucero v. Operation Rescue of Birmingham, No.
CV91-PT-1082-S (N.D. Ohio Dec. 23, 1992) _..... 25
Malley v. Briggs, 475 U.S. 335 (1986) .......-2 17
McCormick v. United States, 111 S. Ct. 1807
CID ainsi cicnnisiiciccieshatitg debated aean a ce ete nin 41, 46
McNally v. United States, 483 U.S. 350 (1987) ..39, 40, 45
Meyer v. Nebraska, 262 U.S. 390 (1923) ................ 39
Miles v. Apex Marine Corp., 111 S. Ct. 317 (1990) .. 21
vi
TABLE OF AUTHORITIES—Continued
Page
Morissette v. United States, 342 U.S. 246 (1952)... 34
NAACP v. Button, 371 U.S. 415 (1963) mS 44
NAACP v. Claiborne Hardware Co., 458 U.S. 886
(1982) .. ppstaaitilinddaaddiesiandaebtonmrainatin ....11, 24, 41, 43, 44
National Organization for Women v. Scheidler,
765 F. Supp. 937 (N.D. Tl. 1991). 6
National Organization for Women - v. Scheidler,
968 F.2d 612 (7th Cir. 1992) ........ .ue..6, passim
National Organization for Women v. Scheidler,
113 S. Ct. 2968 (1993) .......... 6
New York v. United States, 1128 Ct. 2408 (1992) 43, 44
Nogtraingas v. Sanchez, 495 U.S. 182 (1990) 16
Northeast Women’s Center, Inc. v. McMonagle, 868
F.2d 1342 (3d Cir.), cert. denied, 493 U.S. 901
(ei einstinecsineciencptnaninaniealicdrndessieaneeeee ns uu, 38, 42
People v. Ryan, 232 N.Y. 234, 1383 N.E. 572
COTTE D sccccnssstesttsssisisnubusstiiiiantselbbanaibatsiaiaes aimee: 32
People v. Squillante, 18 Mise. 2a 516, 185 N.Y S24
357 (Sup. Ct. 1959) .. salah te eee 32
People v. Whaley, 6 Cow. 661 (N.Y. 1827) . 32
Reves v. Ernst & Young, 113 S. Ct. 1163 (1998) 16, 17
Russello v. United States, 464 U.S. 16 (1983) 18, 19, 31
Sedima, S.P.R.L. v. Imrezx Co., 473 U.S. 479
(1985) ; ' 11, 19, 21
Taylor v. United States, 495 U.S. 575 (1990) 33
V'exas v. Johnson, 491 U.S. 397 (1989) 43
Thornhill v. Alabama, 310 U.S. 88 (1940) 43
Town of West Hartford v. Operation Rescue, 915
F.2d 92 (2d Cir. 1990) 2,41
To.» of West Hartford v. Operation Rescue, 792
F. Supp. 161 (D. Conn. 1992), vacated, 991 F.2d
1039 (2d Cir. 1993), petition for cert. filed, 62
U.S.L.W. 30938 (U.S. July 19, 1993) ‘No. 93-
126) 2
United States v. Alpers, 338 U.S. 680 (1950) 17
United States v. Anderson, 716 F.2d 446 (7th Cir.
1983) 38
United States v. Bagaric, 706 F.2d 42 (2d Cir.),
cert. denied, 464 U.S. 917 (1983).......... . 24, 25
vii
TABLE OF AUTHORITIES—Continued
Page
United States v. Bass, 404 U.S. 336 (1971) ........ 42, 44
United States v. Caldes, 457 F.2d 74 (9th Cir.
RS eae SA oe Cae Le 42
United States v. Cerelli, 608 F.2d 415 (3d Cir.
1979), cert. denied, 444 U.S. 1043 (1980)... 37
United States v. Culbert, 435 U.S. 371 (1978) ........ 41
United States v. Enmons, 410 U.S. 396 (1973)....24, 32, 42,
45, 46
United States v. Ferguson, 758 F.2d 843 (2d Cir.
1985), cert. denied, 474 U.S. 1023 (1985)... 25
United States v. Flynn, 852 F.2d 1045 (8th Cir.),
cert. denied, 488 U.S. 974 (1988) 0.0... 25
United States v. Green, 350 U.S. 415 (1956)... 38
United States v. Ivic, 700 F.2d 51 (2d Cir. 1983)... 23, 25
United States v. Kozminski, 487 U.S. 981 (1988)... 45, 46
United States v. Nardello, 393 U.S. 286 (1969)... 37
United States v. Nedley, 255 F.2d 350 (3d Cir.
1958) ae ‘tet § F
United States v. Palmer, 16 US. (3 Wheat.) 610
(1818) eee A ETE eh Ie RO 22
United States v. Priv ate Sanitation Industry Ass'n,
793 F. Supp. 1114 (E.D.N.Y. 1992) . 37
United States v. Starks, 515 F.2d 112 (3d Cir.
gE TEE Et PSI 5 TERY 37
United States v. Staszcuk, 517 F.2d 53 (7th Cir.)
(en banc), cert. denied, 423 U.S. 837 (1975) 44
United States v. Sweeney, 262 F.2d 272 (3d Cir.
1959) bea ae a. ag
I'nited States v. Turkette, 452 US _ 576 (1981) 18, 22, 31
United States Nat'l Bank of Oregon v. Independent
Ins. Agents of Am., 113 S. Ct. 2173 (1993)... 17
Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S.
464 (1982) ! : R
Webster v. Operation Rescue, No. 91-C-20138
(N.D. Til. Oct. 9, 1992) (1992 WL 281366) 25
Women’s Pavilion, Inc. v. Moriarty, No. 3:91CV-
7250 (N.D. Ohio Dec. 23, 1992) .......................... _ 25
_—————
viii
TABLE OF AUTHORITIES—Continued
Constitutions, Rules, and Statutes Page
U.S. Const. amend. I . ae cdaussbataeaneiaaiiand 44
U.S. Const. art. ITT 7,8,9,15
Rule 12(b) (6), Fed. R. Civ. P. = 3,7
Rule 15, Fed. R. Civ. P. .. a ; oa 3
18 U.S.C. § 1951... . 7, 15, 28
18 U.S.C. § 1951 (a) wer ; 28
18 U.S.C. § 1951 (b) (2) 28, 31, 38, 41
18 U.S.C. § 1961 (1) . aadbeiae ... 27, 28
18 U.S.C. § 1961(3) 2%
18 U.S.C. § 1961 (4) Era — 19
18 U.S.C. § 1961 (5)... 5 ie las a 27
18 U.S.C. § 1962 setiniccnan et . 11,23
18 U.S.C. § 1962(a) . ; . a
18 U.S.C. § 1962(b) ........................... ; ae 21
18 U.S.C. § 1962(c) ....1, passim
18 U.S.C. § 1962(d). = ren 1, passim
18 U.S.C. § 1963 ; 23
18 U.S.C. § 1968 (e)....................... 7 . 21
18 U.S.C. § 1964 (c) 11, 23
29 U.S.C. § 208 (r) (1)....................... e : =a 21
fe Ree ee ae —_ 17
ALA. CovE §§ 13A-8-13, 18A-6-25 (1982) . 36
ALASKA STAT. §§ 11.41.520, 11.41.530 (1989) 36
ARIZ. REV. STAT. ANN. § 13-1804 (1989) 36
ARK. CODE ANN. §§ 5-36-103(a)(2), %-13-208
(Michie 1987 & Supp. 1991) 36
CAL. PENAL Cope § 518 (1988) = 86
CoLo. REV. STaT. ANN. § 18-3-207, § 18-4-401
(West 1990) 36
CONN. GEN. STAT. ANN. § 53a-119(5) (West Supp.
1998) ...... 36
DEL. CODE ANN. tit 11, §§ 846, 791 (Supp. 1992) 36
FIELD CODE OF 1865 §§ 584, 618 (1865) 32, 33
FLA. STAT. ANN. § 836.05 (West 1976) 36
GA. CODE ANN. § 16-8-16 (1992) _.. 36
HAw. REV. STAT. § 707-764 (1988) 36
IDAHO CODE § 18-2403(2) (e) (1987) 36
ILL. ANN. STAT. ch. 38, para. 16-1(a) (3) (Smith-
Hurd Supp. 1992) 36
ix
TABLE OF AUTHORITIES—Continued
Page
IND. CODE ANN. §§ 35-45-2-1, 35-43-4-1(b) (7) &
35-43-4-2 (Burns Supp. 1992) ........................00..... 36
IowA CODE ANN. § 711.4 (West 1979) —................. 36
KAN. STAT. ANN. §§ 21-3701 (c), 21-3428 (1988) ... 37
Ky. Rev. STAT. § 514.080 (Baldwin 1984 & Supp.
(RAR am oral Paattu One a rap a Or 36
LA. REV. STAT. ANN. § 14:66 (West 1986) ............... 36
ME. REV. STAT. ANN. tit. 17-A, § 355 (1983) _.......... 36
Mp. CRIM. LAW CODE ANN. § 562B (1992)... 86
Mass. GEN. LAWS ANN. ch. 265, § 25 (West 1990) .. 36
MICH. Comp. LAWS ANN. § 750.213 (West 1991)... 36
MINN. STAT. ANN. § 609.27 (West 1987) ................... 36
MIss. CoDE ANN. § 97-38-81, § 97-38-87 (1973) ............ 36
Mo. ANN. STAT. § 570.030 (Vernon Supp. 1993) .... 36
Mont. CopE ANN. §§ 45-6-301(2), 45-5-203
a cubaiasensiniia 36
NEB. REV. STAT. § 28-513 (1989) Sale Se ah 36
NEV. REV. STAT. ANN. §§ 205.320, 207.190 (Michie
cain 36
N.H. REv. STAT. ANN. § 637:5 (1986)............. oan 36
N.J. STAT. ANN. gg 2C: 90- 5, 2C:13-5 (West
a es 36
N.M. STAT. ANN. § 30- BE IED ccnnsscpcdeccenantioncnvaneen 36
N.Y. PENAL Law §§ 155.05(2) (e) (McKinney
1988), 135.60 (McKinney 1987) .................... ! 36
N.C. GEN. STAT. § 14-118.4 (1986) ...00000. ee... 36
N.D. CENT. CODE §§ 12.1-23-02(2), 12.1-17-06
5 RRNA REY ae IPS ES SEER alee 36
OHIO oe CopE ANN. §§ 2905.11, 2905. 12 (Ander-
son 1993) ............ 36
OKLA. STAT. ANN. tit. 21, 8g 1481, 1488 “(West
RR SN seen aE mR ANCE Om NN 37
Or. REV. STAT. §§ 164.075, 163.275 (1990) - 36
18 PA. Cons. STAT. ANN. §§ 3923, 2906 (Purdon
1983) ......0000.... ‘tna de 36
R.I. GEN. LAWS § 1 -42- 2 (Supp. 1992). maga 37
S.C. CopDE ANN. § 16-17-640 (Law. Co- op. 1985) 36
S.D. CopIFIED LAWS ANN. § 22-30A-4 (1988) 36
TENN. CoDE ANN. § 39-14-112 (1991) ............ 37
TEX. PENAL CODE ANN. § 31.03 (West 1989) ........... 36
x
TABLE OF AUTHORITIES—Continued
Page
UTAH CODE ANN. § 76-6-406 (1990) o.oo... 36
VT. STAT. ANN. tit. 13, § 1701 (Supp. 1992) ............. 37
VA. CODE ANN. § 18.2-59 (1988) ........0000000 eee. 36
WASH. REv. CODE ANN. §§ 9A.56.110, 9A.36.070
AR a AS ARNT at RN ae CE LOD 36
W. VA. Come § 61-28-18 (1008) ......................-........00::.. 36
WIs. STAT. ANN. § 943.30 (West 1982) ......0.. 37
WE WO, DOPE, © Gee CA ncn cccncccesncnscciccccccccncocscesses 37
Other Authorities
31A Am. Jur. 2d Extortion, Blackmail, and Threats
(1989) ..... ON AS ED A SEO EN GBP LEP AO SO ee OEE 33
2 M. Bacon, A New Abridgement of the Law 453
| RAR Ratna: SSE ap aie ers oP al ee ale 35
Black’s Law Dictionary (5th ed. 1979)...................... 22, 31
4 W. Blackstone, Commentaries (1769) ..................... 34
Califa, RICO Threatens Civil Liberties, 43 Vand.
I I 44
E. Coke, First Institute 584 (J. Thomas ed. 1826) .. 35
OE Ss Bes ee OD iiss ee case Seca 41
T. Dogherty, Crown Circuit Companion 358 (7th
eg 35
W. Hawkins, A Treatise of the Pleas of the Crown
I a 35
Lindgren, The Elusive Distinction Between Bribery
and Extortion: from the Common Law to the
Hobbs Act, 35 UCLA L. Rev. 815 (1988)... 34, 35
Model Penal Code §§ 2125, 2234 (1980) ..........0000..... 35
Oxford English Dictionary (2d ed. 1989)... 31
W. Russell, A Treatise on Crimes and Misdemean-
I Bie Ma is I vance seid nctccoscecsccbcaees. 35
Webster’s Third New International Dictionary
SF A TD eS ERS EE LOE ARE OR LAM SAI SI 20, 21, 22
2 F. Wharton, A Treatise on the Criminal Law,
REG Me COG OU, ROOD iciveneisccctceseccecssesens pay 35
IN THE
Sruygirene Cart of the United States
OCTOBER TERM, 1993
No. 92-780
NATIONAL ORGANIZATION FOR WOMEN, INC., ef al.,
- Petitioners,
JOSEPH SCHEIDLER, ef al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit
BRIEF FOR RESPONDENTS
RANDALL A. TERRY, PROJECT LIFE,
AND OPERATION RESCUE
INTRODUCTION
This brief is filed on behalf of respondents Randall A.
Terry, Operation Rescue, and Project Life.’
Petitioners initiated this action for declaratory and in-
junctive relief and damages by invoking the Racketeer
Influenced and Corrupt Organizations (RICO) Act (18
U.S.C. §§ 1962(a), (c) and (d)),”* federal antitrust law,*
and pendent state law.*
1 None of these respondents is a corporation. See Rule 29.1.
2 Petitioners’ claim under § 1962(a) is not before this Court.
The courts below rejected this claim, and petitioners did not seek
review of those rulings in this Court.
8 The antitrust claim is not before this Court. The courts below
rejected this claim, and chis Court denied review.
* Petitioners did not allege any pendent state 'aw claims against
respondents Randall A. Terry, Project Life, or Operation Rescue.
{Continued ]
2
After nearly five years of litigation, including consider-
able discovery and repeated amendment of its complaint,
petitioners remained unable to plead a valid cause of
action under the governing federal statutes. The district
court dismissed petitioners’ lawsuit and the court of ap-
peals affirmed that judgment. This Court should affirm
the judgment of the court of appeals.
Petitioners Delaware Women’s Health Organization and
Summit Women’s Health Organization, Inc.—two self-
described “commercial establishments,” Pet. at 6—seek to
distort the federal racketeering statute into a weapon for
use against social protest activities. Petitioners simultane-
ously seek to stretch the federal criminal extortion statute
to cover virtually any conduct which forms a part of social
protest activities.
This Court should finally terminate a lawsuit that was
frivolous from its inception.” To allow this suit to pro-
ceed—as petitioners request—would be to signal a green
light for the routine inclusion of civil RICO claims in all
litigation involving social protest movements. Such a re-
sult would chill legitimate protest and further burden the
federal judiciary, all at the expense of disregarding ac-
cepted canons of statutory construction.
* [Continued |
The state law claims alleged against other respondents are “tortious
interference with prospective economic advantage” (Count V),
“tortious interference with existing business relationship” (Count
VI), and (against defendant Vital-Med) “breach of duty of con-
fidentiality” (County VII). The district court dismissed these
claims without prejudice, and petitioners have not challenged the
propriety of this dismissal in their briefs either in the court of
appeals or in this Court.
5To state that the theory of petitioners’ case borders on the
absurd is to understate the situation. See Brief in Opposition of
Respondents Randall A. Terry, et al. § I (petitioners listed Supreme
Court Justices, politicians, journalists, etc. as having knowledge
of the facts of the alleged antitrust and RICO conspiracies). Like
the Second Circuit in Town of West Hartford v. Operation Rescue,
915 F.2d 92 (2d Cir. 1990), this Court should decline to “counte-
nance fanciful invocations of the draconian RICO weapon in civil
litigation,” id. at 104.
3
Petitioners’ case must fail for several independent rea-
sons: first, petitioners cannot meet the threshold require-
ment of standing to bring suit under RICO; second, RICO
does not apply to social protest activities which lack all
mercenary purpose; and third, petitioners’ RICO claim
fails for lack of the necessary predicate acts: the sit-ins
and similar social protest tactics alleged in this case can-
not conceivably be treated as federal criminal extortion.
STATEMENT OF CASE
1. Statement of Facis ®
Petitioners Delaware Women’s Health Organization
(DWHO) and Summit Women’s Health Organization, Inc.
(Summit) are commercial abortion businesses in Wilming-
ton, Delaware and Milwaukee, Wisconsin, respectively.
Second Amended Complaint (Cplt.) @€ 6-7 (J.A. 41-42);
see also Pet. at 6 (describing abortion businesses as “com-
mercial establishments” ).
According to petitioners’ complaint,’ respondents con-
sist of individuals and organizations, Cplt. €€ 9, 11-12,
14-15, 17, 19-20 (J.A. 42-44), sharing a common goal
of shutting down all abortion businesses in the United
States, id. € 26 (J.A. 46). These respondents are part of
the “activist anti-abortion movement.” Jd. € 52 (J.A. 53);
id. © 9 (J.A. 42) (respondent Scheidler is “the director
® Petitioners’ statement of the case is argumentative (according
to petitioners, every pro-life activist is an “extremist” and a “ter-
rorist”), reaches outside the record, and disregards the legal and
constitutional requirements for vicarious liability. Such antics sug-
gest that petitioners recognize that their lawsuit cannot stand on
its own merits. See also Pet. Br. at 41-42 (ad hominem slurs against
pro-life individuals).
™The district court dismissed petitioners’ suit under Rule 12
(b) (6), Fed. R. Civ. P. Accordingly, for purposes of this brief
respondents assume the truth of all facts properly alleged in the
complaint. Petitioners, for their part, are limited to their complaint
and may not resort to the RICO Case Statement to fill in gaps in a
deficient complaint. A RICO Case Statement may explain, focus, or
limit allegations in a complaint; it cannot expand upon or substitute
for the complaint. “ompare Rule 15, Fed. R. Civ. P.
4
of defendant Pro-Life Action League, Inc.”); id. at 4 11
(J.A. 42) (respondent Terry is “the national organizer
of Operation Rescue”). Respondents have agreed to
“drive . . . out of business” every abortion business in the
country. Id. 4 26 (J.A. 46).
The methods various respondents and other pro-life
individuals allegedly employ to shut down abortion busi-
nesses include: distribution of a book “outlining methods
intended to be used to interfere with and stop” abortion
businesses from operating, id. € 28 (J.A. 47) (Scheidler) ;
training and “encouraging” other persons to use these
techniques to close abortion businesses, e.g., id. 94 29
(Scheidler), 30 (Scheidler, Terry, Scholberg, Murphy,
Migliorino), 35 (J.A. 48) (Terry); organizing or partici-
pating in blockades and trespassing at abortion businesses,
e.g., id. 44 59-63 © A. 56-57) (various respondents and
thousands of othe: unnamed participants); stealing fetal
remains from co-defendant Vital-Med Laboratories, Inc.,
and then arranging “highly-publicized” funeral services
and burials for these remains, id. 4 64-74 (J.A. 57-58)
(Scheidler, Scholberg, Murphy, Migliorino, Wojnar,
PLAL and other non-defendant participants); ° damaging
or destroying abortion business property (surgical sup-
plies), id. € 42 (J.A. 50) (non-defendant Joan Andrews) ;
picketing, id. €€ 48-50 (J.A. 51-52) (Scheidler and
Terry); and pressuring a landlord not to lease space to
petitioner Summit, id. €€ 77-78 (J.A. 61-62) (Migliorino).
The bulk of petitioners’ allegations describe activities
directed at other abortion businesses, 1.e., not the petition-
ers DWHO or Summit. E.g., id. €€38 (J.A. 49)
(Women’s Awareness Clinic in Florida), 42 (J.A. 50)
8 Respondent Scheidler announced publicly in 1988 that the re-
mains were “individually packaged and labelled . . . with the names
of the mothers, doctors, dates and places” of the abortions. I/d.
| 70 (J.A. 59). Petitioners have not alleged that any of the respond-
ents have “threatened” to reveal this information. Petitioners’ legal
conclusion that respondents “threatened to disclose confidential in-
formation about previous patients,” id. 77 98(j), 98(1) (J.A. 69-70)
(Count II) (listing alleged predicate acts), finds no support in peti-
tioners’ factual allegations.
>
(Ladies Center of Pensacola, Inc. in Florida), 60 (J.A.
56) (various sites in the State of New York). Other
allegations refer to efforts targeting abortion businesses
in general. E.g., id. 4 28-30 (J.A. 47) (promoting ef-
forts to close abortion businesses “such as DWHO and
Summit”).
Petitioners do not allege that respondents Terry, Opera-
tion Rescue (OR), or Project Life undertook any activity
at or against DWHO or Summit. In fact, few allegations
refer to anyone taking action at or against DWHO and
Summit. See id. 44 44 (J.A. 50) (trespass by Scheidler
at DWHO and “threat” by Scheidler, to DWHO adminis-
trator, of “reprisals” if she did not quit her job), 71 (J.A
59) (Migliorino arranged funeral and burial for 1200
aborted babies and stated that 700 of the bodies came
from Summit and another Milwaukee abortion business),
76 (J.A. 60) (defendant Vital-Med, a pathology service,
refused to accept further aborted babies from DWHO or
Summit), 77-78 (J.A. 61-62) (Migliorino helped induce
breach of Summit’s lease). None of these allegations in-
volve respondents Terry, OR, or Project Life.
Petitioners allege that respondents receive income in the
form of “contributions . . . in support” of their acts de-
signed to shut down abortion businesses, id. 4 100 (J.A.
71), and that certain individual respondents receive sal-
aries and benefits for their pro-life work, id.
Petitioners have not alleged that respondents have re-
ceived any income or other property aside from donations
from their pro-life supporters (and salaries and benefits
derived from these donations). Petitioners have not al-
leged that respondents have demanded, requested, or even
suggested that petitioners or any other abortion businesses,
staff, or clientele turn over money or other property either
to respondents or to any other persons or organizations.
Furthermore, petitioners have not alleged that any of the
respondents have any financial or economic purpose for
shutting down abortion businesses. Nor have petitioners
alleged that respondents have any purpose for their actions
6
other than a genuine, deeply held desire to stop the killing
of unborn children by abortion.
2. Course of Proceedings
Petitioners filed their original complaint on October 17,
1986 (J.A. 1), an amended complaint on February 2,
1989 (J.A. 9), and a second amended complaint on
September 22, 1989 (J.A. 13). The second amended
complaint (J.A. 39) alleged claims under the RICO
($$ 1962(a), (c), (d)) and antitrust statutes and in-
cluded pendent state law claims. On March 18, 1991,
petitioners submitted a RICO Case Statement (J.A. 87)
in response to an order of the district court (J.A. 81).
On May 28, 1991, the district court dismissed the
second amended complaint. National Organization for
Women v. Scheidler, 765 F. Supp. 937 (N.D. Ill. 1991)
(Pet. B-1 to 18). The district court held that petitioners
failed to state a claim, under the federal antitrust and
racketeering laws, upon which relief could be granted.
The district court accordingly declined to exercise pendent
jurisdiction over the remaining state claims, and dismissed
the case in its entirety.
The court of appeals affirmed, NOW v. Scheidler, 968
F.2d 612 (7th Cir. 1992) (Pet. A-1 to 37), and denied
rehearing and rehearing en banc (Pet. G-1 to 2).
Petitioners sought review in this Court on their anti-
trust claim and two of their RICO counts (§§ 1962(c),
(d)). This Court granted review limited to the RICO
counts. NOW v. Scheidler, 113 S. Ct. 2958 (1993).
SUMMARY OF ARGUMENT
Petitioners are attempting to use the federal RICO stat-
ute as a weapon against social protest activities. This at-
tempt must fail for at least three independent reasons.
1. Petitioners lack standing to bring RICO claims
against respondents. The complaint alleges a laundry list
of activities but fails to allege that these particular re-
spondents committed any predicate acts which injured
7
these particular petitioners. Consequently, petitioners have
failed to show either the “injury in fact” necessary to
establish Article III standing or the “proximate causation”
necessary to establish RICO standing.
2. RICO does not apply to social protest activities
which lack any mercenary purpose whatsoever. Both the
text and the manifest purpose of RICO show that Con-
gress designed the statute to take the profit out of crime.
RICO does not simply federalize or enhance the penalties
for an arbitrary list of crimes designated as “racketeering
activities.” Rather, RICO targets mercenary criminal ac-
tivity, as evidenced by the statutory title, statement of
findings, definitions, prohibitions, and remedies.
3. Petitioners have failed to alleged the predicate acts
necessary for a RICO claim. Social protest activities
which neither “obtain property” nor employ “force, vio-
lence, or fear” simply do not constitute “extortion” under
the Hobbs Act, 18 U.S.C. §$ 1951. Because petitioners
have rested their entire RICO suit upon an over-expansive
misreading of the Hobbs Act, the RICO claims in this
case must fail.
This Court should affirm the judgment below which up-
held the dismissal of petitioners’ defective RICO suit.
ARGUMENT
The district court dismissed petitioners’ RICO claims
pursuant to Rule 12(b)(6), Fed. R. Civ. P. The court
of appeals properly affirmed that dismissal, holding that
respondents’ aileged activities are “not within the reach of
... RICO.” 961 F.2d at 631. This Court shov!:: affirm
the judgment of the court of appeals.’
* Affirmance follows regardless of whether the decision below is
treated as a dismissal or a grant of summary judgment. See Brief
of Respondent Murphy. A RICO Case Statement is not a pleading.
Therefore, petitioners may not rely upon it, to compensate for
defects in their complaint, when challenging a judgment cf dis-
missal. If petitioners do wish to rely upon their RICO Case State-
ment, then that statement—and the judgment below—must be re-
viewed under the standards governing summary judgment.
8
I. PETITIONERS DWHO AND SUMMIT LACK
STANDING.
The only claims before this Court are the RICO claims
of petitioners DWHO and Summit,” under 18 U.S.C.
§$ 1962(c) and (d),” against certain respondents.”
DWHO and Summit lack standing, on the face of their
complaint, to bring these claims against respondents.”
A. Petitioners Lack Article III Standing.
To maintain an action in federal court, a plaintiff must
“show that he personally has suffered some actual or
threatened injury as a result of the putatively illegal con-
duct of the defendant” and that this injury “fairly can be
traced to the challenged action,” Valley Forge Christian
College v. Americans United for Separation of Church and
State, 454 U.S. 464, 472 (1982) (internal quotation
10The National Organization for Women (NOW) was also a
plaintiff in this case. NOW sued only under the federal antitrust
statutes. Cplt. 9979, 92-93 (J.A. 62, 64) (Count I). The lower
courts rejected this claim. NOW petitioned this Court for review,
Pet. at i (Question 2), but this Court denied review. NOW was
not a plaintiff on any of the RICO claims. See Cplt. 1794, 106,
111 (J.A. 65, 72, 74).
11 Petitioners DWHO and Summit brought a claim under RICO
section 1962(a), see Cplt. 97 94-105 (J.A. 65-72), but the lower
courts rejected this claim. Petitioners did not seek review in this
Court of that portion of the judgment below.
Petitioners DWHO and Summit also brought claims under state
law. None of these claims sought relief against respondents Terry,
Operation Rescue, or Project Life. The district court dismissed
these claims without prejudice, and petitioners have not argued
that this dismissal was erroneous.
12 The complaint named respondents Scheidler, Scholberg, Murphy,
PLAL, Terry, OR and Project Life as “RICO defendants” under
§ 1962(c) and (d). See Cplt. 97 94, 106, 111 (J.A. 65, 72, 74). The
complaint named respondent Migliorino as a defendant under
§ 1962(c) but not under § 1962(d). See id. $7 106, 111 (J.A. 72,
74).
13 Standing is a jurisdictional requirement which remains open
to review at all stages of the litigation. Bender v. Williamsport
Area School Dist., 475 U.S. 534, 546-47 (1986).
|
9
marks and citations omitted). In other words, a plaintiff
must show that the defendant (not someone else) violated
a legal norm and that defendant’s violation (not some-
thing else) caused injury to plaintiff (not to someone
else).
This threshold minimum is a mandatory requirement
of Article III of the Constitution. /d. Furthermore, a
plaintiff bears the burden of establishing standing to sue.
Bender v. Williamsport Area School Dist., 475 U.S. 534,
546 n.8 (1986). The necessary showing “must affirma-
tively appear in the record,” id. at 546 (footnote omitted);
“it is not sufficient that jurisdiction may be inferred argu-
mentatively from averments in the pleadings,” id. at 547
(citations omitted ).
Petitioners’ complaint fails to satisfy this basic constitu-
tional requirement.
1. No allegation by DWHO or Summit against
Project Life
The complaint alleges no predicate acts whatsoever by
respondent Project Life. Hence, petitioners lack standing
to sue Project Life. (Petitioners acknowledged this in
their RICO Case Statement, which omits Project Life as
a RICO defendant. RICO Case Statement 4 1 (J.A. 87-
88); id. Ex. A (J.A. 137).)
2. No allegations by DWHO or Summit against
Terry or Operation Rescue
The complaint fails to allege that respondents Terry or
Operation Rescue committed any predicate acts against
petitioners DWHO or Summit.
The complaint sets forth a lengthy list of alleged predi-
cate acts as the basis for the RICO claims under § 1962(c)
and (d). See Cplt. €4 98 (j.A. 66-70) (listing predicate
acts), 109 (J.A. 73) (incorporating, for § 1962(c) claim,
€98"*), 111 (J.A. 74) (incorporating, for § 1962(d)
14 The complaint actually lists the wrong paragraph number, viz.,
q 99.
10
claim, € 109). Of the twelve predicate acts listed, eight
make no mention whatsoever of either DWHO,or Sum-
mit. See Cplt. © 98(a)-(f), (h), (i) (J.A. 66-69).
The four remaining alleged predicate acts make no men-
tion of Terry or OR. /d. © 98(g), (j)-(/) (J.A. 68-70).
Hence, petitioners lack standing to sue Terry and OR.”
1S Paragraph 98(g) alleges an act by respondent Scheidler on his
own; no conspiracy by any others is alleged. Furthermore, this
incident predates the involvement of Terry and OR in the alleged
“enterprise.” According to the complaint, Terry first proposed
Operation Rescue in November, 1986, id. {56 (J.A. 55), and OR
was not organized until months later, id. { 57 (J.A. 55). Scheidler’s
alleged act took place on April 12, 1986, i.e., prior to the involve-
ment of Terry or OR in the alleged “enterprise.” Accordingly, peti-
tioners cannot hold respondents Terry or OR liable on any theory of
“retroactive” conspiracy. Levine v. United States, 383 U.S. 265,
266 (1966) (per curiam) (individual cannot be held liable for sub-
stantive offenses committed by members of the conspiracy before
that individual! had joined the conspiracy).
Paragraphs 98(j)-(1) allege acts, attempts, and conspiracies by
certain named respondents and others associated with them but
specifically omit Terry and OR.
16 Summit and DWHO lack standing to sue the other respondents
as well.
Of the four remaining allegations, three refer to the theft and
burial of aborted babies, while the fourth refers to an incident at
DWHO involving respondent Scheidler. None of the alleged predi-
cate acts even name respondent Scholberg.
1. Aborted babies. The “aborted babies” allegations allege three
predicate acts against “clinics affiliated with plaintiffs DWHO and
Summit,” but allege no action against DWHO or Summit in particu-
lar. Id. © 98(j)-(1) (J.A. 69-70). The only connection petitioners
allege between these activities and petitioners is a statemcnt, by
respondent Migliorino, that 700 of the bodies came originally from
Summit and another Milwaukee abortion business. Jd. "71 (J.A.
59).
The alleged misconduct consisted of (a) stealing aborted babies
from co-defendant Vital-Med, (b) publicizing the possession of
these remains and the fact that the remains were labelled with
names of facilities, physicians, and patients, and (c) conducting
public funerals and burials for these aborted babies. See also supra
note 8. Activity (a) is not directed at Summit or DWHO. Activities
11
B. Petitioners Lack RICO Standing.
Petitioners DWHO and Summit have failed, on the face
of their complaint, to allege proximate causation between
respondents’ alleged violations of § 1962 and petitioners’
asserted injuries. Thus, petitioners lack RICO standing,
i.e., they fail to allege an injury within the scope of the
RICO statute.
To bring suit under RICO, it is not enough to claim
that the defendant violated § 1962 and that the plaintiff
suffered injury. On the contrary, there must be a direct
connection between the violation of RICO and the plain-
tiff's injury: “the plaintiff only has standing if, and can
only recover to the extent that, he has been injured in his
business or property by the conduct constituting the viola-
tion.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496
(1985) (emphasis added). As the RICO statute itself
explicitly provides, only a “person injured in his business
or property by reason of a violation of section 1962 of
this chapter may sue therefore... .” 18 U.S.C. § 1964(c)
(emphasis added). This means that the plaintiff must
allege and prove facts establishing that the RICO violation
proximately caused the injuries plaintiff claims. Holmes
v. SIPC, 112 S. Ct. 1311 (1992).
For their claims under § 1962(c) and (d) (the only
claims before this Court), DWHO and Summit specify the
alleged injuries in their complaint. See Cplt. €€ 104-05
(b) and (c) are protected forms of speech. Hence, these incidents
are insufficient bases for standing.
2. Threat of “reprisals.” The only remaining alleged predicate
act alleges that respondent Scheidler threatened DWHO’s admin-
istrator with “reprisals” if she did not quit working at DWHO,
ld. ° 98(g) (J.A. 68). DWHO does not allege that this “threat”
injured DWHO in any way. On the contrary, DWHO acknowledges
that the administrator remained at her job for a full year after-
wards. Id. © 44 (J.A. 50-51). Nor is an ambiguous allegation of
threatened “reprisals” sufficient to show anything beyond the bounds
of protected free speech. NAACP v. Claiborne Hardware Co., 458
U.S. 886, 921 (1982) (“threats” of “social ostracism, vilification,
and traduction”). Furthermore, petitioners allege no conspiracy;
hence, this alleged “threat” implicates no one aside from Scheidler.
12
(J.A. 72) (injury under § 1962(a)), 110 (J.A. 73) (in-
corporating injury set forth in 4 104-05 for § 1962(c)),
114 (J.A. 74) (incorporating injury set forth in 44 104-
O5 for § 1962(d)). These paragraphs provide as follows:
104. Each defendant’s violation of 18 U.S.C.
§$ 1962(a) has injured the business and/or property
interests of the plaintiffs and the class members. The
RICO Defendants’ investment of income received
from the pattern of racketeering activity or the pro-
ceeds therefrom has injured plaintiffs by furthering
those illegal goals of PLAN, and/or PLAL, OR or
the Project which involve extortionate and anti-
competitive activities against abortion providers.
105. Specifically, the RICO Defendants’ activities
have decreased the business of and/or increased the
cost of doing business at, DWHO, Summit and simi-
larly-situated clinics. The RICO Defendants’ activ-
ities have injured the plaintiff class of female NOW
members and other women who have been unable to
obtain abortion services, or whose choice of clinics
that provide these services has been restricted, by
depriving them of the right to choose freely between
abortion providers in an unthreatened marketplace
and to reap the economic and medical advantages of
having that choice.
The injury asserted in € 104 relates exclusively to re-
spondents’ “investment of income”—i.e., petitioners’
§ 1962(a) claim—and thus has no relevance to the
§ 1962(c) and (d) claims at issue here.
The second sentence of € 105 asserts injury to NOW
and the class it claimed to represent. Neither NOW nor
this class, however, are RICO plaintiffs.’
The allegation upon which the standing of DWHO and
Summit ultimately rests, then, is the assertion that re-
spondents’ “activities have decreased the business of,
17To the extent that this allegation is taken as claim of direct
injury to DWHO and Summit by decreasing their business, it is
subsumed under petitioners’ explicit allegation to this effect, dis-
cussed below.
13
and/or increased the cost of doing business at, DWHO
[and] Summit... .” Jd. € 105 (J.A. 72).
Petitioners have not alleged as predicate acts actual
blockades of DWHO and Summit or actual property
destruction at DWHO and Summit. Rather, as discussed.
supra §$1(A), petitioners have alleged such acts only at
other abortion businesses.
Petitioners contend that these rescue blockades else-
where have induced insurance companies to raise pre-
miums, and induced landlords, security services, and lab-
oratory facilities to charge higher rates. for DWHO and
Summit. Cplt. € 87 (J.A. 63). See also RICO Case
Statement 415 (J.A. 112). Petitioners may also argue
that respondents’ activities elsewhere have induced women
not to patronize DWHO and Summit.
These contentions do not show proximate cause.
DWHO and Summit cannot sue respondents for block-
ading other abortion businesses any more than Operation
Rescue can sue pro-abortion vandals for damaging the
offices of other pro-life groups. Whether market forces
in fact translate these third-party incidents into increased
costs for petitioners is beside the point. “Thus, a plain-
tiff who complained of harm flowing merely from the mis-
fortunes visited upon a third person by the defendants’
acts was generally said to stand at too remote a distance
to recover.” Holmes, 112 §. Ct. at 1318 (citation
omitted ).
As this Court explained in Holmes, there are very
powerful practical reasons for adhering to the traditional
limits of proximate causation. If businesses which were
not directly harmed were allowed to sue for indirect
injuries,
the district court would first need to determine the
extent to which [plaintiffs’ alleged harm] was the
result of the alleged [RICO violation], as opposed
to, say . . . poor business practices or their failures
to anticipate developments in the [relevant] markets.
14
Assuming that an appropriate assessment of factual
causation could be made out, the district court would
then have to find some way to apportion the possible
respective recoveries by the [directly injured non-
parties] and the [plaintiffs], who would otherwise
each be entitled to recover the full treble damages.
Finally, the law woud be shouldering these difficul-
ties despite the fact that those directly injured .. .
could be counted on to bring suit for the law’s
vindication.
Id. at 1320. Limiting standing to those who show prox-
imate causation is entirely compatible with RICO:
the congressional admonition that RICO be “liberally
construed to effectuate its remedial purposes,” .. .
does not deflect our analysis. There is, for that
matter, nothing illiberal in our construction: We
hold not that RICO cannot serve to right the con-
spirators’ wrongs, but merely that [indirectly injured
parties] are not proper plaintiffs. Indeed, we fear
that RICO’s remedial purposes would more probably
be hobbled than helped by [plaintiff's] version of
liberal construction: Allowing suits by those injured
only indirectly would open the door to massive and
complex damages litigation which wouid not only
burden the courts, but also undermine the effective-
ness of treble-damages suits.
Id. at 1321 (editing marks and citations omitted).
Neither DWHO nor Summit has alleged any injury
flowing from predicate acts directed toward DWHO or
Summit.’* Thus, DWHO and Summit lack RICO
standing.
18 See supra note 16. Again, petitioners allege no act whatsoever
by respondents Terry or OR at or against either DWHO or Summit.
Summit alleges that respondent Migliorino illegally induced Sum-
mit’s landlord to breach Summit’s lease. Cplt. {| 77-78, 124-29 (J.A.
61-62, 77-78). Summit sued Migliorino for this under state law in
a pendent tort claim, id. { 123 (J.A. 77), but did not allege this as
15
In sum, petitioners DWHO and Summit lack standing
under both Article III and the RICO statute to prosecute
their claims under § 1962(c) and (d). This Court should
accordingly dismiss the writ of certiorari as improvidently
granted or, in the alternative, affirm the judgment of the
court of appeals.
II. PETITIONERS’ RICO CLAIMS MUST FAIL BE-
CAUSE RESPONDENTS’ ACTIVITIES REFLECT
NO MERCENARY PURPOSE.
The court below affirmed the dismissal of this case on
the basis that respondents’ activities lacked a mercenary
purpose and thus fell outside the purview of RICO. That
decision was entirely correct, and this Court should
affirm.
Petitioners and their amici have focused virtually all
of their arguments on this question. It is therefore im-
portant, at the outset, to dispose of several preliminary
matters.
First, the question whether RICO applies to defend-
ants who act without any mercenary purpose at all is a
non-issue in this case. Petitioners have exclusively al-
leged, as predicate offenses, “extortion” in violation of
the Hobbs Act, 18 U.S.C. § 1951. Whereas extortion is
a classic “property crime,” the Court has no occasion to
reach the RICO issue: if petitioners had truly alleged
(which they have not) that respondents obtained (or
a predicate act under RICO. Hence, this incident cannot supply
standing under RICO.
Petitioners’ RICO Case Statement asserts that on May 10, 1986,
respondent Migliorino took part in a blockade at Summit. J.A. 121.
(This is the only blockade of either Summit or DWHO which ap-
pears anywhere in the RICO Case Statement.) This allegation does
not appear in the complaint, either as an alleged predicate act or
otherwise.
Neither of the foregoing incidents allege any involvement by
respondents Terry, OR, or Project Life. Furthermore, the Migli-
orino blockade predates the alleged involvement of Terry, OR, or
Project Life with the other respondents. See supra note 15.
16
conspired or attempted to obtain) property by extortion,
then respondents’ mercenary purpose would be clear; on
the other hand, if petitioners in fact have not alleged
that respondents obtained (or conspired or attempted to
obtain) property by extortion, then there are no pred-
icate acts to support petitioners’ RICO claims. In either
event, it is unnecessary to decide whether RICO applies
to totally non-mercenary—activities."” For this reason, as
well as petitioners’ lack of standing, supra § I, this Court
should dismiss the writ of certiorari as improvidently
granted.
Second, the argument that courts should not “invent”
additional nontextual requirements for RICO is a red
herring. “Just as we are not at liberty to seek ingenious
analytical instruments to avoid giving a congressional en-
actment the broad scope its language and origins may
require, . . . sO too are we not at liberty to recast this
statute to expand its application beyond the limited reach
Congress gave it.” Ngiraingas v. Sanchez, 495 U.S. 182,
192 (1990) (editing marks and citations omitted). In
particular, “RICO’s ‘liberal construction’ clause . . . is
not an invitation to apply RICO to new purposes that
Congress never intended.” Reves v. Ernst & Young, 113
S. Ct. 1163, 1172 (1993).
The text of RICO confirms the wisdom of the decision
below. Infra $I(A)(2). To ignore the connotations of
statutory language and the context of a statute would be
to frustrate, not further, the purpose of Congress. For
example, just because the text of the statute does not use
the magic phrase “proximate causation,” this does not
mean that RICO claims face no such requirement. See
Holmes v. SIPC, 112 S. Ct. 1311 (1992). Nor does the
19 Petitioners, perhaps sensing this major logical gap in the perti-
nence of their arguments, attempt to preserve the RICO issue by
reference to “arson” and “bombing,” offenses which do not ipso
facto demonstrate a mercenary purpose. E.g., Pet. Br. at 4. This
device fails: petitioners have not alleged any predicate arson or
bombing by respondents. See infra § III(A).
17
absence of the phrase “opération or management” pre-
clude the recognition of such a test for determining what
constitutes “conduct” of an enterprise in violation of
RICO. See Reves v. Ernst & Young, 113 S. Ct. 1163
(1993). .
The true question is what interpretation of the text
most faithfully implements the purpose of Congress.
Commissioner v. Engle, 464 U.S. 206, 217 (1984);
United States v. Alpers, 338 U.S. 680, 681-82 (1950)
(“The most important thing to be determined is the intent
of Congress”). It is that question to which respondents
now turn. ~
A. RICO Does Not Apply to Social Protest Activities
Undertaken Without Any Mercenary Purpose.
This Court has already recognized the danger that
over-eager litigants will try to stretch statutory language
“to apply RICO to new purposes that Congress never
intended.” Reves, 113 S. Ct. at 1172. That is precisely
what petitioners are doing when they seek to convert
RICO into a weapon against social protest.
“In determining the meaning of the statute, we look
not only to the particular statutory language, but to the
design of the statute as a whole and to its object and
policy.” Crandon v. United States, 494 U.S. 152, 158
(1990) (citations omitted). Accord United States Nat'l
Bank of Oregon v. Independent Ins. Agents of Am., 113
26 This Court has applied this same common-sense approach to
statutes containirg far fewer textual indications than are found in
RICO. Thus, this Court has construed 42 U.S.C. § 1983 to include
a defense of “qualified immunity,” even though no such words ap-
pear on the face of the statute. E.g., Malley v. Briggs, 475 US.
335, 339 (1986) (“Although the statute on its face admits of no
immunities, we have read it in harmony with general principles of
tort immunities and defenses rather than in derogation of them’’)
(internal quotation marks and citation omitted). Neither “rule of
reason” nor “Noerr-Pennington doctrine” appear in the text of
antitrust laws; yet these are accepted statutory glosses. See FTC
v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990). Count-
less other examples could be cited.
18
S. Ct. 2173, 2182 (1993). Both the manifest purpose
and the text of RICO demonstrate its inapplicability to
social protest activities which lack any mercenary purpose.
1. This Court’s view of the purpose of RICO
_ Petitioners appear to operate on the premise that the
purpose of RICO was simply to federalize, or enhance
penalties for, an arbitrary list of crimes designated as
“racketeering activities.” See Pet. Br. at 23-25 (equating
violation of RICO with violation of predicate offenses).
This premise is false.”
The purpose of RICO, as this Court has repeatedly
acknowledged, was to strike at the “source of economic
power” of organized crime. Russello v. United States. 464
U.S. 16, 27 (1983) (internal quotation marks and cita-
tion omitted). Whereas, “in the view of Congress, the
economic power of organized crime derived from its huge
illegal profits,” Russello, 464 U.S. at 28 (emphasis added,
citation omitted), it was only natural that Congress should
target the corrupt acquisition of funds: “Congress could
not have hoped successfully to attack organized crime’s
economic roots without reaching racketeering profits.
During the congressional debates, the sources and mag-
nitude of organized crime’s income were emphasized re-
peatedly.” Jd. (emphasis added, citations omitted). See
United States v. Turkette, 452 U.S. 576, 591-93 & n.14
(1981) (documenting purpose of targeting criminal rev-
enue). Thus, “[t]he aim [of civil RICO remedies] is to
divest the [defendant enterprise] of the fruits of its ill-
gotten gains.” Turkette, 452 U.S. at 585. Contrary to
petitioners, Pet. Br. at 23-25, “Congress fully recognized
that racketeers do not engage in predicate acts as ends
in themselves; instead, racketeers threaten, burn, and
murder in order to induce their victims to act in a way
that accrues to the economic benefit of the racketeer... .”
21Tf petitioners’ reductionist view of RICO were correct, the
entire complex statutory scheme of “patterns,” “enterprises,” etc.
would be no more than so many obstacles to the maintenance of
successful actions under RICO.
19
Sedima, 473 U.S. at 519 (Marshall, J., joined by Bren-
nan, Blackmun, and Powell, JJ., dissenting) (second
emphasis added). Hence, Congress targeted crimes in
which “the racketeer engaged in criminal acts in order
to accomplish a commercial goal... .” Id. at 517. “The
broader goal was to remove the profit from organized
crime by separating the racketeer from his dishonest
gains.” Russello, 464 U.S. at 28 (emphasis added).
RICO is a statutory weapon crafted to remedy the
acquisition of economic power by means of serious crim-
inal behavior (the predicate acts). To use RICO in the
entirely different context of social protest would be like
using a front-loader to weed a garden.
Where, as here, the protest activities of the RICO de-
fendants have no mercenary purpose, use of RICO repre-
sents abuse of RICO.
2. The statutory language
The text of RICO represents an elaborate—-and delib-
erate—statutory framework targeting mercenary criminal
activities. The statute has no application to activity that
lacks any mercenary purpose.
a. Enterprise
The RICO statute in 18 U.S.C. § 1962(c) forbids “any
person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate
sommerce, to conduct or participate . . . in the conduct
of such enterprise’s affairs through a pattern of racketeer-
ing activity . . .” (emphases added). The concept of
“enterprise” within the meaning of RICO requires at least
some economic purpose or profit-seeking activity on the
part of the RICO defendants.
RICO does not define the term “enterprise” explicitly.
Instead, the statute merely provides that “ ‘enterprise’ in-
cludes any individual, partnership, corporation, associa-
tion, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity.”
18 U.S.C. § 1961(4) (emphasis added). By using the
20
term “includes” instead of “means,” Congress clearly in-
dicated that not every individual, partnership, and so
forth qualifies per se as an enterprise. See H.J. Inc. v.
Northwestern Bell Telephone Co., 492 U.S. 229, 237-38
(1989) (analyzing the term “pattern” in RICO) (by
using a word other than “means” in a definition, the
RICO statute “assumes that there is something to [the
defined term] beyond simply the [elements set forth in
the definition]”) (emphasis in original).
The “enterprise” concept would be superfluous if every
person, legal entity, or association automatically qualified
as an enterprise. Congress was perfectly capable of using
a word like “entity” or some other generic term having
no commercial connotations, but chose instead to use
the term “enterprise.” Fidelity to legislative intent re-
quires this Court to take this choice of terminology
seriously.
In analyzing the term “enterprise,” this Court “must
start with the assumption that the legislative purpose is
expressed by the ordinary meaning of the words used.”
H.J. Inc., 492 U.S. at 238 (internal quotation marks and
citations omitted). This is especially true when the statute
itself “does not identify . . . [the] additional prerequisites
for establishing the existence” of the statutory clement.
See id.
An “enterprise,” according to Webster’s Third New
International Dictionary (1986), can in the abstract be
any plan, design, or undertaking. Jd. at 757. Petitioners
seize upon this definition. Pet. Br. at 21-22. But RICO
clearly does not incorporate this meaning of “enterprise”;
the statutory definition includes entities, not mere “activ-
ities” or “designs.” The first concrete definition given for
an enterprise is as follows: “a unit of economic organiza-
tion or activity (as a factory, a farm, a mine); esp: a
business organization: FIRM, COMPANY.” /7/d. (defini-
tion 1(c)). This economic connotation also appears in
such uses as “Acme Enterprises” or the term “enterpriser,”
i.e., an “entrepreneur,” defined as “the organizer of an
21
economic venture; esp: one who organizes, owns, man-
ages, and assumes the risks of a business... .” /d. at
757 (definition of “enterpriser”), 759 (first definition of
“entrepreneur” ).
Congress has also defined “enterprise” in a different
statute, the Fair Labor Standards Act. That statute pro-
vides as follows: “ ‘Enterprise’ means the related activi-
ties performed (either through unified operation or com-
mon control) by any person or persons for a common
business purpose... .” 29 U.S.C. § 203(r)(1) (em-
phasis added). This definition is helpful for at least two
reasons. First, this statute confirms congressional intent
to adopt the ordinary connotation of “enterprise” as some-
thing having a profit-seeking purpose. See e.g., Gollust v.
Mendell, 111 S. Ct. 2173, 2179 (1991) (congressional
intent to adopt common understanding of a term is con-
firmed by use of the same word with that same meaning
in other federal statutes). Second, this statutory defini-
tion of “enterprise” existed prior to the passage of RICO.
See Brennan v. Arnheim & Neely, Inc., 410 U.S. 512,
516-17 (1973) (“enterprise” concept added to FLSA
in 1961). Congress is presumed to legislate with an
awareness and understanding of the current meaning of
the terms of existing laws. Miles v. Apex Marine Corp.,
498 U.S. 19, 32 (1990).
Other provisions of RICO further bolster this con-
clusion by indicating that the term “enterprise” must mean
an undertaking in which one can “invest” by acquiring an
“interest” in or funding the “establishment or operation”
of the enterprise, see 18 U.S.C. § 1962(a), (b), and that
an enterprise is something which can accrue or produce
income for the racketeer, see 18 U.S.C. § 1963(e). The
plain implication of the text, then, is that an “enterprise”
under RICO must, at least in part, pursue some economic
goal. “We should not lightly infer that Congress _in-
tended the term to have wholly different meanings in
- neighboring subsections.” Sedima, 473 U.S. at 489 (foot-
note omitted).
22
b. Title, preface, definitions, remedies
There are other textual indicators which confirm the
Congressional understanding that RICO targeted mer-
cenary criminal activity, not social or political protest.
First, the title of the statute, “Racketeer Influenced and
Corrupt Organizations,” serves as an “aid in showing
what was in the mind of the legislature,” United States v.
Palmer, 16 U.S. (3 Wheat.) 610, 631 (1818). The
terms “racketeer” and “corrupt” connote mercenary pur-
poses. “Racketeer” means “A person who makes money
by violations of racketeering laws.” Black’s Law Dic-
tionary 1132 (Sth ed. 1979) (emphasis added).
“Racket,” in turn, means “Engaging in an operation to
make money illegitimately ... .” Jd. (emphasis added).
See also Webster's. Third New International Dictionary
1871 (1986) (“racketeer” is “one who extorts money or
advantages ...”). “Corrupt,” meanwhile, indicates a pur-
pose of illegitimate profiteering. See Black’s Law Dic-
tionary, supra, at 311 (“corruptly,” when used in a stat-
ute, “generally imports a wrongful design to acquire some
pecuniary or other advantage”).
Second, the Congressional findings prefacing RICO
confirm this understanding. These findings, quoted at
length in United States v. Turkette, 452 U.S. 576, 588-89
(1981), explicitly identify the evil which RICO seeks to
remedy: “organized crime derives a major portion of its
power through money ecbtained from . . . illegal endeav-
ors”; these mercenary endeavors “drain billions of dollars
from America’s economy” into the pockets of racketeers
who then use “this money and power. - . to infiltrate and
corrupt” businesses, unions, and government bodies, pro-
ducing significant additional harm to the economy of the
nation. /d. at 588 (internal quotation marks and cita-
tion omitted). The declared purpose of the RICO legis-
lation was clearly to deny racketeering activity “the fruits
of its ill-gotten gains.” /d. at 585.
- 23
Third, only a “person” can violate RICO, § 1962, and
“person” includes only an individual or entity “capable of
holding a legal or beneficial interest in property,”
§ 1961(3). This limitation would make no sense if a
violation of RICO bore no relation to the illegal acquisi-
tion of property.
Fourth, the statutory remedies RICO provides—for-
feiture, 18 U.S.C. § 1963, and treble damages and attor-
ney fees, 18 U.S.C. § 1964(c)—clearly indicate a desire
to strike at mercenary criminal activity. Agency Holding
Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143,
151 (1987) (RICO provides “broad and flexible rem-
edies” against the “business activities” of organized crime)
(internal quotation marks and citations omitted). Statu-
tory weapons designed to take the profit out of racketeer-
ing simply makes no sense in the context of purely social,
political, or religious protest movements.
3. Workability
The United States claims that using RICO only against
mercenary criniinal activities could impair prosecution
of political and religious terrorism. U.S. Br. at 1-2. But
the former RICO Guidelines of the Justice Department
itself explicitly barred any indictment charging an “asso-
ciation in fact” as an enterprise “ ‘unless the association in
fact has an ascertainable structure which exists for the
purpose of maintaining operations directed toward an
economic goal .. .,’” United States v. Ivic, 700 F.2d
51, 64 (2d Cir. 1983) (emphasis in vic) (quoting Guide-
line VI) (superseded in 1984, see U.S. Br. at 17). The
United States has cited no instance in which the govern-
ment has been unable, under other statutes, adequately
to prosecute criminal social protest activities that were
devoid of mercenary purposes.
This statutory requirement of at least some financial
purpose is not a judicially created obstacle to the proper
functioning of RICO. Rather, as the Seventh Circuit rec-
ognized in this case, “this interpretation of § 1962(c) is
24
dictated by the terms of the statute,” 968 F.2d at 629.
The mercenary purpose requirement does no more than
<ecognize the fundamental difference between schemes
which engage in racketeering and corruption, even asa
sidelight, e.g., United States v. Bagaric, 706 F.2d 42 (2d
Cir.), cert. denied, 464 U.S. 840, 917 (1983) (extorting
payments from moderate Croatians as a means of further-
ing predominant nationalist political goals), from move-
ments which address exclusively political or social goals
and, while breaking some laws, commit no “economic”
crimes, cf. NAACP v. Claiborne Hardware Co., 458 U.S.
886 (1982) (civil rights activism included violent
incidents ).
The requirement of a mercenary purpose marks the
essential boundary between social protest and criminal
corruption.” As such, this requirement has already long
served, without any apparent practical enforcement diffi-
culty, in the context of the Hobbs Act. As this Court has
observed, the “entire character” of a protest “change[s]
from legality to criminality” when the protest is used “to
exact the payment of money as a condition of its cessa-
tion.” United States v. Enmons, 410 U.S. 396, 406 n.16
(1973) (editing marks and citation omitted). “In short,
when the objectives of the [protest activities] change |
from legitimate . . . ends to personal payoffs,” then the
actions become corrupt and criminal. Jd. (emphasis
added). To recognize a requirement of a mercenary pur-
pose in RICO is to do no more than to acknowledge this
same crucial distinction.
As the court below observed, the question whether the
enterprise is “geared toward economic gain,” 968 F.2d at
628, requires no “vague, amorphous” inquiry, id. at 629.
22 Petitioners’ supposed list of contrary cases is specious. Pet. Br.
at 37. Aside from the abortion protest cases, the decisions peti-
tioners cite all involved economic crimes like robbery, bribery, and
illegal gambling. ‘
25
Nor need a court inquire as to subjective motivations.”
Rather, the economic purpose requirement posits a
straightforward, bright-line test: Is there any mercenary
purpose? The crucial distinction is between “some” and
“none”—between something and nothing—and that is
all the difference in the world.
B. Respondents’ Activities Reflect No Mercenary Pur-
pose.
The court of appeals applied the mercenary purpose
requirement to the facts of the case at bar and correctly
concluded that petitioners’ complaint failed to satisfy this
Statutory requisite. 968 F.2d at 630.
In the instant case, petitioners have alleged no mer-
cenary purpose whatsoever on the part of respondents.
Petitioners point to the fact that respondent organizations
receive third-party donations to support their work and
that some of the individual respondents receive salaries or
28 Petitioners make much of the term “motivation” in the opinion
below. However, it is clear in context that this term must refer to
objective goals, not subjective desires.
** The circuits that have actually addressed the relevant issue—
the Second and Eighth—are in harmony with the Seventh Circuit.
See United States v. Ivic, 700 F.2d 51 (2d Cir. 1983) ; United States
v. Bagaric, 706 F.2d 42, 53, 55 (2d Cir.), cert. denied, 464 U.S. 840,
917 (1983) ; United States v. Ferguson, 758 F.2d 843, 853 (2d Cir.),
cert. denied, 474 U.S. 1032 (1983) ; United States v. Flynn, 852 F.2d
1045, 1052 (8th Cir.), cert. denied, 488 U.S. 974 (1988) (“For
purposes of RICO, an enterprise must be directed toward an eco-
nomic goal”) (citing vic). See generally Brief in Opp. of Respond-
ents Terry, et al. at 8-10. :
The district courts that have addressed this issue since the
Seventh Circuit ruled in this case have uniformly followed that
decision. See Town of West Hartford v. Operation Rescue, 792
F. Supp. 161, 168-69 (D. Conn. 1992), vacated on other grounds,
991 F.2d 1039 (2d Cir. 1993), petition for cert. filed, 62 U.S.L.W.
3093 (U.S. July 19, 1993) (No. 93-126); Webster v. Operation
Rescue, No. 91-C-20138 (N.D. Ill. Oct. 9, 1992) (1992 WL 281366) ;:
Lucero v. Operation Rescue of Birmingham, No. CV91-PT-1082-S
(N.D. Ala. Mar. 2, 1993); Women’s Pavilion, Inc. v. Moriarty, No.
3:91CV7250 (N.D. Chio Dec. 23, 1992).
26
in-kind benefits (e.g., use of a car) from these organiza-
tions. Cplt. € 100 (J.A. 71). But as the Seventh Circuit
held, “it is not reasonable to infer that the purpose of the
[petitioners’ alleged conduct] is to raise funds” simply be-
cause that conduct “results incidentally in donations to
support it,” id.
Petitioners also argue that the negative economic effect
on abortion businesses allegedly resulting trom respond-
ents’ activities satisfies the economic purpose requirement.
Pet. Br. at 45. This contention is patently meritless, as it
“renders the distinction between ‘purpose’ and ‘effect’ ut-
terly meaningless.” Bray v. Alexandria Women’s Health
Clinic, 113 S. Ct. 753, 767 (1993).
The fact that an organization is donor-supported, or
that it pays its employees or agents, simply has no con-
nection at all to the legality of its activities or its liability
under RICO. The court of appeals therefore correctly held
that respondents had no mercenary purpose that would
bring them within RICO.
Ill. PETITIONERS HAVE FAILED TO ALLEGE ANY
PREDICATE ACTS UNDER RICO.
The Seventh Circuit rejected petitioners’ RICO claims
under 18 U.S.C. § 1962(c) and (d) for failure to satisfy
the economic purpose requirement of RICO. Petitioners
urge this Court to construe RICO not to require any
economic purpose whatsoever. Pet. Br. § I. But even if
this Court were to do so, this would not help petitioners.
Petitioners’ complaint fails to state a RICO claim for an
additional, wholly independent reason: a complete ab-
sence of the necessary “predicate acts.”
A respondent—as the prevailing party in the court be-
low—‘“may rely upon any matter appearing in the record
in support of the judgment below.” Blum v. Bacon, 457
U.S. 132, 137 n.5 (1982). This is true “whether or not
that ground was relied upon or even considered by the
trial court,” Dandridge v. Williams, 397 U.S. 471. 475
n.6 (1970), or even if “his argument may involve an at-
tack upon the reasoning of the lower court or an insist-
27
ence upon matter overlooked or ignored by it.” /d. (in-
ternal quotations marks and citation omitted). If peti-
tioners have not properly pleaded any RICO predicate
acts, then there is no RICO cause of action and therefore
no need to determine whether the enterprise itself or the
predicate acts require an economic purpose. Hence, this
issue is a “predicate to an intelligent resolution” of the
petitioners RICO claim. Cuyler v. Sullivan, 446 U.S.
335, 342 n.6 (1980) (internal quotation marks and cita-
tion omitted).
Each subsection of the RICO statute requires proof of
a “pattern of racketeering activity.” 18 U.S.C. § 1962(a),
(b), (c). A “pattern” of racketeering activity “requires
at least two acts of racketeering activity,” 18 U.S.C.
§$ 1961(5). The necessary acts of racketeering must in
turn come within RICO’s definition of “racketeering activ-
ity,” 18 U.S.C. § 1961(1), which lists the offenses that
qualify as predicate acts. Thus, a RICO plaintiff must
allege at least two “predicate acts” that fall within the
RICO definition of “racketeering activity.” Petitioners
have failed to do so.
A. Petitioners Cannot Rely Upon Insinuations of
“Arson” or “Bombing.”
Amicus United States suggests that “arson” and “bomb-
ing” might serve as predicate offenses to support petition-
ers RICO suit. Brief for United States at 21-22. This
suggestion is meritless:
—Petitioners did not allege any acts of arson or
bombing by respondents in their complaint. In
fact, petitioners did not allege arson or bombing
at all, much less arson or bombing by respondents.
—Petitioners did not allege either arson or bombing
as a predicate act.
—Even in the RICO Case Statement, which lists
arson and bombing by non-parties, petitioners did
not allege either arson or bombing as a predicate
act. The only predicate acts alleged are acts of
Hobbs Act extortion. J.A. 91, 95-96.
28
Petitioners amended their complaint repeatedly but
never sought to add arson or bombing as predi-
cate acts. The reason is clear: respondents com-
mitted no such acts.
—‘“Bombing” in any event is not a predicate act
under RICO. See 18 U.S.C. § 1961(1).
Petitioners therefore cannot salvage their RICO claim
by this device.
B. Petitioners’ Have Not Alleged Conduct which Con-
stitutes Extortion under the Hobbs Act.
Petitioners rely exclusively upon allegations of “extor-
tion” under the federal Hobbs Act, 18 U.S.C. § 1951.
See Cplt. 44 97-98 (J.A. 66-70); RICO Case Statement
€ 5(a), (f)(1) (J.A. 91, 95-97). Hobbs Act extortion
does indeed qualify as a predicate act under RICO. See
18 U.S.C. § 1961(1). The conduct petitioners allege,
however, does not make out even a single instance of
extortion under the Hobbs Act, much less the minimum
RICO requirement of two such acts.
The Hobbs Act, 18 U.S.C. § 1951, prohibits interfer-
ence with commerce by “extortion,” § 1951(a), and de-
fines extortion as “the obtaining of property from another,
with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of offi-
cial right.” § 1951(b)(2). Petitioners’ complaint of
predicate extortion under the Hobbs Act fails if any one
of the essential elements of this statutory offense is lack-
ing. In this case, petitioners’ claim is defective for at least
three independent reasons: 1) no allegation of “obtain-
ing’; 2) no allegation of “property”; and, (3) no allega-
tion of actual or threatened “force, violence, or fear.”
The complaint specifies fifteen supposed predicate acts
of extortion. See Cplt. 498 (J.A. 66-70). The follow-
ing chart lists the factual allegations corresponding to
each alleged predicate act, and provides a brief descrip-
tion of the act in question. (Paragraphs refer to the Sec-
ond Amended Complaint. )
29
Allegation Corresponding Description of act
of predicate factual
act allegation Status Substance
1. {98a J 38 Attempt, rescue
conspiracy, blockade 25
commission
2. 98b 40 Conspiracy rescue
blockades
3. 98c 41 Conspiracy “unlawful,
concerted
action”
4. 98d 42 Attempt, “stormed the
commission clinic” and
injured two
persons
5. 98e 42 Commission “stormed the
clinic,”
“ransacked a
medical
procedures
room,” and -
destroyed
surgical
supplies
6. 98f 47 Attempt, rescue blockade
conspiracy,
commission
7. 98g 44 Attempt threat of
“reprisals”
should
administrator
of abortion
business not
quit job
8. 98h 53 Attempt, rescue blockade
conspiracy,
commission
9. 98i(1) 59, 63 Attempt, rescue
conspiracy, blockades
commission
10. 98i (2) 60 Attempt, rescue
conspiracy, blockades
commission
25 A “rescue blockade” is a sit-in designed to prevent access to
an abortion business. See Cplt. 17 38 (J.A. 48), 47 (J.A. 51).
30
Allegation
of predicate
act
Corresponding
factual
allegation
Description of act
Status
Substance
11. 98i (3)
12. 98i (4)
13. 98)j
14, 98k
15. 981
61
62
64-76
69-76
64-76
Attempt,
conspiracy,
commission
Attempt,
conspiracy,
commission
Attempt,
conspiracy,
commission
Attempt,
conspiracy
Attempt,
conspiracy
rescue
blockades,
trespass, and
assaults upon
police officers
rescue
blockades
theft and
concealment of
fetal remains;
publicizing
and conducting
funerals and
burials
of stolen
fetuses 2¢
disclosure of
identity of
abortionists
responsible for
fetal remains;
conducting and
publicizing
fetal funerals
theft,
concealment,
and transport
of fetal
remains;
threat to
disclose
identity of
abortionists ;
publicizing and
conducting
funeral
Masses and
burials for
stolen
fetuses 27
26 See supra note 8.
«4 See supra note 8.
31
These alleged acts do not constitute federal criminal
extortion.
1. The missing elements
\
a. No allegation of “obtaining”
Violation of the Hobbs Act requires “the obtaining of
property from another... .” 18 U.S.C. § 1951(b)(2)
(emphasis added). Petitioners have alleged no “obtain-
ing” in this case.
i. Plain meaning of “obtaining”
The plain meaning of “obtaining . . . from” includes
more than merely making someone “give up” something.
Yet the latter is all that petitioners have alleged.
It is a fundamental rule of interpretation to begin with
the text of the statute. United States v. Turkette, 452 U.S.
576, 580 (1981). Words are to be given their ordinary
meaning. Russello v. United States, 464 U.S. 16, 21 (1983).
The Oxford English Dictionary, vol. 10, 669-70 (2d ed.
1989), traces the development of the uses of “obtain”
through the history of the English language. Its principal
sense is “to come into the possession or enjoyment of
(something) . . . . to acquire [or] get.” Jd. Accord
Black’s Law Dictionary 972 (Sth ed. 1979) (“obtain”
means “[t]o get hold of . . .; to get possession of; to pro-
cure; to acquire in any way”). “Obtaining . . . from” is
not synonymous with “part with,” which means “to let go,
give up [or] surrender.” Oxford English Dictionary, vol.
11 at 262 (emphasis added). ~Yet in the present case,
~ petitioners alleged no more than that respondents
did wrongfully use threatened or actual force, vio-
lence or fear to induce or attempt to induce the em-
ployees of affected clinics to give up their jobs; doc-
tors involved with affected clinics to give up their
economic right to practice medicine at the plaintiff
clinics; patients of affected clinics to give up their
right to obtain services at the plaintiff clinics; and
prospective patients of clinics to give up their con-
stitutional right to decide whether and where to ob-
32
tain medical services free from fear of violence or
threatened or actual force.
Cplt. 4497, 98(d) (J.A. 66, 67) (emphasis added).
Petitioners have not pleaded that respondents (or anyone
associated with them) “obtained” anything.
ii. Meaning of “obtaining” under New York
extortion law
Under New York law—the source of the language of
the Hobbs Act—‘obtaining” means “gaining,” not just
denying.” United States v. Enmons, 410 U.S. 396, 406
n.16 (1973).
The Hobbs Act took its relevant language from the
extortion law of the state of New York. /d.; Evans v.
United States, 112 S. Ct. 1881, 1886 n.9, 1887 (1992).
Under New York law, it is well-settled that the crime of
extortion requires an unlawful taking. Enmons, 410 U.S.
at 406 n.16 (under New York statute, “extortion requires
an intent to obtain that which in justice and equity the
party is not entitled to receive”; accused must be “actuated
by the purpose of obtaining a financial benefit” such as
“receiv[ing] a payoff’) (emphasis added; quoting and citing
New York cases). See People v. Whaley, 6 Cow. 661,
663 (N.Y. 1827) (“[e]xtortion . . . signifies the taking
of money” with corrupt intent) (cited in commentary to
Field Code of 1865, § 613 (extortion) ). People v. Ryan,
232 N.Y. 234, 235, 133 N.E. 572, 573 (1921) (black-
mail prosecution) (an intent “to extort” requires an ac-
companying intent to “gain money or property”; mere
threat to injure a business is insufficient). See also People
v. Squillante, 18 Misc. 2d 561, 564, 185 N.Y.S.2d 357,
361 (Sup. Ct. 1959) (“‘[o]btaining of property from
another’ imports not only that he give up something but
that the obtainer receive something”); United States v.
Nedley, 255 F.2d 350, 355-58 (3d Cir. 1958).
28In Nedley, the Third Circuit squarely held, in accord with
New York law, that “obtaining” was synonymous with “taking”
and that “robbery in the Hobbs Act did not extend to “interfer-
ence by force and violence with . . . lawful dominion and control,”
33
New York law was codified in the Field Code of 1865,
which defined extortion as “[t]he obtaining of property
from another, with his consent, induced by a wrongful use
of force or fear, or under color of official right.” FIELD
CopE § 613 (1865) (emphasis added). In the commen-
tary to Chapter IV, Section 584 (larceny), the Field Code
Commissioners observed:
Four of the crimes affecting property require to be
somewhat carefully distinguished; robbery, larceny,
extortion, and embezzlement. ... All four include
the criminal acquisition of the property of another.
.. . In extortion, there is again a taking. . . . Thus
extortion partakes in an inferior degree of the nature
of robbery, and embezzlement shares that of larceny.
FIELD Cope, Chapter IV, § 584 com. (emphasis added).
The Field Code, in turn, was one of the sources for the
Hobbs Act. Evans, 112 S. Ct. at 1886 n.9.
iii. Meaning of “obtaining” at common law:
extortion vs. coercion
Furthermore, petitioners’ theory of “extortion” is com-
pletely inconsistent with the distinction at common law—
incorporated into the Hobbs Act—between “extortion”
and “coercion.”
“Coercion” is the criminal compulsion of another, by
means of threats, to do or not do something. See 31A
Am. Jur. 2d Extortion, Blackmail, and Threats §§ 49-50
(1989) (coercion as independent offense). Coercion is
a creature of statute, much broader then extortion. /d.
Extortion, by contrast, is limited to the obtaining of prop-
erty by means of threat. Jd. § 40. The “obtaining” ele-
ment in the Hobbs Act incorporates this distinction.
It is a familiar “maxim that a statutory term is generally
presumed to have its common-law meaning.” Taylor v.
United States, 495 U.S. 575, 592 (1990) (quoted in
Evans v. United States, 112 S. Ct. 1881, 1885 (1992)).
As this Court reaffirmed in Evans,
since no “taking” or no “intent to steal” could be shown. 255
F.2d at 354-57.
34
“where Congress borrows terms of art in which are
accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts
the cluster of ideas that were attached to each bor-
rowed word in the body of learning from which it
was taken and the meaning its use will convey to
the judicial mind unless otherwise instructed. In such
case, absence of contrary direction may be taken as
satisfaction with widely accepted definitions, not as
a departure from them.”
Id. at 1885 (quoting Morissette v. United States, 342 U.S.
246, 263 (1952) ).
In Evans, this Court explicitly applied this rule to the
terms of the Hobbs Act: “our construction of the statute
is informed by the common-law tradition from which the
term of art was d-awn and understood.” 112 S. Ct. at
1889. This “common-law tradition” demonstrates the flaw
in petitioners’ attempt to obliterate the distinction between
extortion and coercion.
(a). Extortion at common law
Although the common law definition varied from treatise
to treatise, extortion unquestionably was a property offense.
Blackstone “ described extortion as “an abuse of public
justice, which consists in an officer’s unlawfully taking, by
colour of his office, from any man, any money or thing
of value, that is not due to him, or more than is due or
before it is due.” 4 W. Blackstone, Commentaries 141
(1769) (emphasis added). In another influential treatise,
Coke opined, “[e]xtortion, in its proper sense, is a great
misprision, by wresting or unlawfully taking by any officer,
by colour of his office, any money or valuable thing .. .
either that is not due, or more than is due, or before it
29“The definition of common law extortion that writers on the
Hobbs Act most frequently cite is Blackstone’s ... .” Lindgren,
The Elusive Distinction Between Bribery and Extortion; from
the Common Law to the Hobbs Act, 35 UCLA L. Rev. 815, 862
(1988).
ee a epee ee ee
de Astle ORS cian
35
be due....” 3 E. Coke, First Institute 584 (J. Thomas
ed. 1826) (emphasis added). Hawkins ® stated,
[E]xtortion in a large sense signifies any oppression
under colour of right; but that in a strict sense, it
signifies the taking of money by any officer, by
colour of his office, either where none at all is due,
or not so much is due, or where it is not yet due.
W. Hawkins, A Treatise of the Pleas of the Crown 316
(6th ed. 1788) (emphasis added).
In sum, the common law definition of extortion required
the acquisition of property. The Hobbs Act, by employ-
ing the term “obtaining” from common law, New York
law, and the Field Code, incorporated this same element.
(b). Statutory distinction between ex-
tortion and coercion
The Model Penal Code maintained the distinction be-
tween the (originally common-law) crime of extortion
and the (originally statutory) crime of coercion. Section
212.5 “prohibits specified categories of threats made with
the purpose of uniawfully restricting another’s freedom of
action to his detriment.” MopeLt PENAL Cope § 212.5
cmt. 2 at 264 (1980) (emphasis added).** Section 223.4,
however, “deals with situations where threat . . . is the
method employed to deprive the victim of his property.”
Id. § 223.4 cmt. 1 at 201 (emphasis added). The obtain-
ing of property distinguishes extortion from coercion, as
30 “Hawkins’s definition of extortion was cited, paraphrased, or
followed by the Crown Circuit Companion, Mathew Bacon in A
New Abridgement of the Law, William Russell in A Treatise on
Crimes and Misdemeanors, and Francis Wharton in his influential
American treatise, A Treatise on the Criminal Law.” Lindgren,
supra note 29, at 865 (footnotes omitted).
*1“The word ‘unlawfully’ means that the actor must intend to
coerce conduct that he has no legal right to require .... The
phrase ‘freedom of action’ is intended to include anything which
the other person does not wish to do or to refrain from doing.”
Id. at 265.
36
coercion involves the restriction of another’s freedom of
action by threat.
Many states follow the Model Penal Code and distin-
guish extortion and coercion by categorizing them as sepa-
rate statutory offenses.** A second group of states recog-
nize only the crime of extortion, not coercion.** Other
states combine the two offenses under one heading.*
32 See ALA. CoDE §§ 13A-8-13, 13A-6-25 (1982); ALASKA STAT.
§§ 11.41.520, 11.41.530 (1989) ; ARK. CODE ANN. §§ 5-36-103 (a) (2),
5-13-208 (Michie 1987 & Supp. 1991); CoLo. Rev. STAT. ANN.
§ 18-3-207 (coercion labelled extortion), § 18-4-401 (consolidated
theft) (West 1990); DEL Cope ANN. tit 11, §§$846, 791 (Supp.
1992): Miss. CopE ANN. § 97-3-81 (extortion labelled robbery),
§ 97-3-87 (coercion labelled whitecapping) (1973); MONT. CODE
ANN. §§ 45-6-301(2), 45-5-203 (1991); Nerv. Rev. STAT. ANN.
§§ 205.320, 207.190 (Michie 1992); N.J. Stat. ANN. §§ 2C:20-5,
2C:13-5 (West 1982); N.Y. PENAL LAW §§ 155.05(2)(e) (Mc-
Kinney 1988), 135.60 (McKinney 1987); N.D. CENT CoDE §§ 12.1-
23-02(2), 12.1-17-06 (1985); OHIO REV. CoDE ANN. §§ 2905.11,
2905.12 (Anderson 1993); OR. Rev. STAT. §§ 164.075, 163.275
(1990); 18 Pa. Cons. STAT. ANN. §§ 3923, 2906 (Purdon 1983) ;
WasH. Rev. CopE ANN. §§ 9A.56.110, 94.36.070 (1988).
33 See ARIZ. REV. STAT. ANN. § 13-1804 (1989); CAL. PENAL
CopE $518 (1988); CoNN. GEN. STAT. ANN. § 53a-119(5) (West
Supp. 1993); GA. Cope ANN. § 16-8-16 (1992); IDAHO CODE
§ 18-2403(2) (e) (1987); ILL. ANN. STAT. ch. 38, para. 16-1(a) (3)
(Smith-Hurd Supp. 1992); IND. Cope ANN. §§ 35-45-2-1, 35-43-4-1
(b) (7) & 35-43-4-2 (Burns Supp. 1992); Iowa CopdE ANN. § 711.4
(West 1979); Ky. Rev. Stat. ANN. § 514.080 (Baldwin 1984 &
Supp. 1992); La. Rev. STAT. ANN. § 14:66 (West 1986); ME. REv.
STAT. ANN. tit. 17-A, § 355 (1983); Mp. Crim. LAW CoDE ANN.
§562B (1992): Mo. ANN. STAT. § 570.030 (Vernon Supp. 1993) ;
NEB. Rev. STAT. § 28-513 (1989): N.H. Rev. STAT. ANN. § 637:5
(1986): N.C. GEN. STAT. §14-118.4 (1986); S.C. CoDE ANN.
§ 16-17-640 (Law. Co-op. 1985); S.D. CopIFIED LAWS ANN. § 22-
80A-4 (1988): TEx. PENAL CopDE ANN. § 31.03 (West 1989);
UTAH Cope ANN. § 76-6-406 (1990); VA. CoDE ANN. § 18.2-59
(1988) ; W. VA. CopDE § 61-2-13 (1992).
84 See FLA. STAT. ANN. § 836.05 (West 1976); Haw. REv. STAT.
§ 707-764 (1988); Mass. GEN. LAWS ANN. ch. 265, §25 (West
1990); Micn. Comp. LAws ANN. § 750.213 (West 1991); MINN.
Stat. ANN. § 609.27 (West 1987); N.M. STaT. ANN. § 30-16-9
37
Petitioners fail to recognize coercion as a separate of-
fense. Yet “[t]he distinction is not trivial: . . . it is of the
essence of extortion—not only in New York law but, more
importantly, in the law generally—that one compel an-
other to surrender property.” United States v. Private
Sanitation Industry Ass'n, 793 F. Supp. 1114, 1132
(E.D.N.Y. 1992) (emphasis in original) (citing United
States v. Nardello, 393 U.S. 286, 296 (1969) ).
Petitioners’ allegations of extortion are limited to claims
that abortion businesses, doctors or patients were deprived
of the ability to exercise certain rights. But “to deprive”
is simply not the same as “to obtain from.” Respondents
were not business competitors of the petitioners or their
employees. They stood to gain nothing by the reduction
in the petitioners’ business. Even assuming, arguendo, that
abortion businesses lost “property” because of respondents,
but see infra § III(B), neither the respondents nor anyone
associated with them obtained that “property.” Nor did
any third party gain “property.” Thus, the crime of “ex-
tortion” simply does not fit the alleged conduct. What-
ever else respondents might have been, they were not
“extortionists.” *
(1984) ; R.I. GEN. LAws § 11-42-2 (Supp. 1992); TENN. CopE ANN.
§ 39-14-112 (1991); VT. STAT. ANN. tit. 18, § 1701 (Supp. 1992) ;
Wis. STAT. ANN. § 943.30 (West 1982); Wyo. STAT. § 6-2-402
(1988). Cf. KAN. STAT. ANN. §§ 21-3701(c) (theft by threat),
21-3428 (coercion and extortion together) (1988); OKLA. STAT.
ANN. tit. 21, §§ 1481 (extortion), 1488 (coercion and extortion to-
gether under blackmail) (West 1983).
%5 The Third Circuit holding in Northeast Women’s Center, Inc.
v. McMonagle, 868 F.2d 1342 (3d Cir.), cert. denied, 493 U.S.
901 (1989), that no economic benefit or motivation is necessary
in pleading and proving a Hobbs Act violation, is clearly wrong.
None of the decisions it cited supports its holding. United States
v. Cerelli, 603 F.2d 415 (3d Cir. 1979), cert. denied, 444 U.S. 1043
(1980), merely held that the extortionist need not obtain the
property himself—a political party may be the recipient of the
extorted contributions. United States v. Starks, 515 F.2d 112
(3d Cir. 1975), held that a religious purpose does not preclude
a finding of extortion where money is taken. Finally, United
38
A defendant may “obtain” property for purposes of the
Hobbs Act either by personally receiving a direct payment
from the victim or by obtaining property for another per-
son. United States v. Green, 350 U.S. 415 (1956). In
the case at bar, however, petitioners have alleged neither
alternative. Petitioners have not alleged that respondents
themselves either received or sought any benefit from any
of the alleged victims of extortion. (The only “benefits”
petitioners allege are donations and salaries which come,
not from the alleged victims, but from independent
sources.) Nor have petitioners alleged any attempt to
coerce the transfer of any property io third parties.
Therefore respondents cannot, in any reasonable sense of
the word, be guilty of “obtaining” any property.
b. No allegation of “property”
Violation of the Hobbs Act requires “the obtaining of
property,” 18 U.S.C. § 1951(b)(2) (emphasis added).
Petitioners’ complaint does not satisfy this requirement.
Petitioners identify, inter alia, the following supposed
“property” extorted from the alleged victims: from pa-
tients, the “right to obtain services” at facilities that pro-
States v. Anderson, 716 F.2d 446 (7th Cir. 1983), dealt not with
the “obtaining from” element of extortion, but with the failure
to give kidnapping instructions. The record, however, included
evidence that defendant had extorted $300 from the victim. /d.
at 477. Curiously, the Third Circuit failed to cite its own con-
trolling precedent recognizing that extortion under the Hobbs Act
is a “larceny-type offense.” United States v. Sweeney, 262 F.2d
272, 275 (3d Cir. 1959) (citing United States v. Nedley, 255 F.2d
350 (3d Cir. 1958)). McMonagle, in short, is unpersuasive. The
court below referred to McMonagle’s holding in passing, but with-
out independently addressing this issue.
%* Petitioners have alleged that certain “co-conspirators” them-
selves caused damage to the property of some abortion businesses.
But vandalism alone—even intentional vandalism-—is not extor-
tion. Nor have petitioners themselves ventured so far as to
allege that the property so damaged constitutes the property al-
legedly “obtained” by respondents. See Cplt. © 97 (J.A. 66) (de-
scribing “property” allegedly extorted).
enn er es
ee I A Oe tN A -
39
vide abortions; and from prospective patients, the “consti-
tutional right to decide whether and where to obtain medi-
cal services free from fear of violence or threatened or
actual force.” Cplt. €97 (J.A. 66). These abstract
“rights” of uncertain legal status do not constitute “prop-
erty” for purposes of the Hobbs Act.
Any unlawful conduct, whether a tort, a breach of
contract, or even a parking violation, will interfere to
some degree with another person’s liberty to do as he
pleases. But the Hobbs Act forbids the wrongful obtain-
ing of property, not the wrongful denial of liberty. To
treat “rights” as “property” under the Hobbs Act would
be to remove all limits whatsoever to the kind of injury
necessary to rise to the level of federal criminal extortion.
This Court rejected a similar attempt to expand the
concept of “property” beyond all meaning in the context
of the federal mail fraud statute. See McNally v. United
States, 483 U.S. 350 (1987). The mail fraud statute
prohibited use of the mails for “obtaining money or
property” by fraud. 483 U.S. at 352 n.1. In McNally,
the government charged the defendant with defrauding
Kentucky citizens “of their right to have the Common-
wealth’s business and its affairs conducted honestly, im-
partially, free from corruption, bias, dishonesty, deceit,
official misconduct, and fraud... .” Jd. at 354 n.4 (trial
court’s instruction to jury). This Court recognized an
57 Petitioners also identified the following supposed “property”
extorted: from employees, “jobs”; from doctors, the “economic
‘right to practice medicine” at facilities that provide abortions.
Id. To the extent that these allegations refer to the general
“freedom ... to engage in any of the common occupations of
life,” Board of Regents v. Roth, 408 U.S. 564, 572 (1972) (quot-
ing Meyer v. Nebraska, 262 U.S. 390, 399 (1923) ), the allegations
describe a liberty interest, not a property right. While em-
ployers can have property interests in continued employment vis-
a-vis the employer, the respondents in this case neither employ
abortion business staff or even seek their jobs for themselves.
Nor have petitioners claimed that respondents sought to induce
abortion businesses to fire their staff.
40
obvious difference between “property rights” and “the
intangible right of the citizenry to good government.” /d.
at 356. Indeed, this distinction was so clear that the
Court considered that the only “arguable” way of saving
the prosecution would be to construe the mail fraud
Statute so as to dispense entirely with “the money-or-
property requirement” for certain kinds of fraudulent
schemes. /d. at 358. The Court refused to remove this
statutory limitation: “Rather than construe the statute
in a manner that leaves its outer boundaries ambiguous
and invelves the Federal Government in setting standards
of disclosure and good government for local and state
officials, we read [the mail fraud statute] as limited in
scope to the protection of property rights.” /d. at 360.
Acceptance of petitioners’ strained characterization of
abstract “rights” as property would likewise leave the
boundaries of the Hobbs Act highly ambiguous and would
put the federal government in the business of enforcing
order in domestic social movements. Did the civil rights
activists of the 1960's extort owners of diners of “prop-
erty” when they obstructed the owners’ “right to serve
only the customers they chose”? Did these activists extort
white bus passengers of their “property” by making these
passengers give up their “right to sit in the front of the
bus”? Such convoluted abstractions do not constitute
“property” under the Hobbs Act.
To be-sure,a-preperty right need not be tangible. Car-
penter v. United States, 484 U.S. 19, 25-27 (1987) (mail
fraud statutes apply to wrongful obtaining of intangible
property). But “intangible property” does not equate
with “intangible rights.” A liberty interest such as the
“right to obtain services” or the “constitutional right to
decide whether and where to obtain medical services free
from fear of violence or threatened or actual force” is,
in the words of Carpenter, “an interest too ethereal in
itself to fall within the protection” of the “property” con-
cept, id. at 25.
41
c. No allegation of “force, violence, or fear”
Conduct typical of civil disobedienee—sit-ins, pickets,
vehement rhetoric—does not constitute “force, violence,
or fear” under the Hobbs Act. Petitioners have alleged
no more than conduct of this sort; ** hence, there can be
no predicate extortion. Accord Town of West Hartford
v. Operation Rescue, 915 F.2d 92, 102 (2d Cir. 1990)
(“it would be difficult to construe the [anti-abortion res-
cuers’] activities as described in the complaint, consisting
of resistance to police efforts to clear protestors from the
[abortion business] . . ., as the ‘wrongful use of actual or
threatened force, violence or fear’ within the meaning
of section 1951(b)”).
In the case at bar, petitioners have sought to character-
ize a quintessentially social, moral, and political battle as
“extortion.” This semantic legal endeavor is flawed not
only as a matter of statutory construction, but also as a
fundamental matter of jurisprudence. As the sponsor of
the Hobbs Act noted, the words “robbery” and “extortion”
“have been construed a thousand times by the courts.
Everybody knows what they mean.” 91 Cong. Rec.
11912 (1945) (quoted in United States v. Culbert, 435
U.S. 371, 378 (1978)). Petitioners’ artificial and un-
bounded construction of the Hobbs Act, like the prose-
cutor’s attempted expansive reading of that same Act in
McCormick vy. United States, 111 S. Ct. 1807, 1816
(1991), is “an unrealistic assessment of what Congress
could have meant by making it a crime to obtain property
from another, with his consent... .”
88 Arson and bombing would represent examples of force or vio-
lence; however, petitioners have alleged no such predicate acts.
Supra §1II(A). Petitioners have alleged a solitary incident of
apparent assault by persons who are not defendants in this case.
Cplt. 1 42 (J.A. 50). But petitioners have alleged no connection to
respondents that would support legal liability for this isolated in-
cident. One person “certainly ... cannot” be held liable for the acts
of another “simply because both shared certain goals.” NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 925 n.69 (1982) (citation
omitted).
42
For forty years after the passage of the Hobbs Act of
1948, not a single reported decision suggested that the
pursuit of social, moral, or political goals through pressure
tactics—including lawbreaking in the form of trespass,
obstruction, mass picketing, and incidental scuffling—con-
stitutes federal criminal extortion. The isolated and aber-
rant decision in Northeast Women’s Center, Inc. v. Mc-
Monagle, 868 F.2d 1342 (3d Cir.), cert. denied, 493
U.S. 901 (1989), cannot have singlehandedly revolution-
ized American jurisprudence.
Civil disobedience and social or political pressure
tactics are “as American as apple pie,” and characterizing
ideological movements as extortionate simply because of
the use of these traditional methods would move this
country precisely in the direction of totalitarian oppres-
sion so recently abandoned in the former Soviet Union.
The theory of petitioners’ complaint would make a rack-
eteer and an extortionist out of everyone from Mohandas
Gandhi, to Martin Luther King, Jr., to the temperance
activists of the Nineteenth Century (see decision below,
968 F.2d at 619-20), to the leaders of the Boston Tea
Party. Petitioners’ construction of RICO and the Hobbs
Act would distort these statutes into weapons for com-
batting anti-nuclear protestors, animal rights activists, and
opponents of apartheid. Indeed, some of petitioners’ amici
not only recognize but positively welcome this prospect.
See Brief of the American Medical Ass’n et al. at 3-4,
22-23. But as the Ninth Circuit declared in United States
v. Caldes, 457 F.2d 74 (9th Cir. 1972) (cited with
approval in United States v. Enmons, 410 U.S. 396, 409
(1973)), “it appears to us that acts of vandalism of the
type committed by these [defendants] would be more
properly and suitably prosecuted in the state courts and
it is doubtful if Congress intended by Section 1951 to
elevate this type of conduct to the level of the federal
court.” 457 F.2d at 79 (citing United States v. Bass,
404 U.S. 336 (1971)).
43
2. The rules of statutory construction
Essentially, petitioners’ theory of extortion is that any
garden-variety political protest aimed at an_ industry
causes extortion to the extent that it adversely influences
business and consumers. If businesses sell less, if con-
umers buy less, if fewer employees are employed, that is
“extortion” of each of them. The extorter need obtain
nothing; it is sufficient if the’ businesses, consumers, or
employees are deprived of (or “give up”) something.
Furthermore, under this theory, the very nature of pro-
test supplies the element of “actual or threatened force
or fear.” The theory profoundly contradicts several well-
established norms o* statutory construction.
a. Avoiding constitutional difficulties
It is a fundamental rule of statutory construction that
legislation ought not, if a reasonable alternative is present,
be interpreted in a manner that raises constitutional diffi-
culties. Edward J. DeBartolo Corp. v. Florida Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988); New York v. United States, 112 S. Ct. 2408,
2425 (1992). This rule of construction mandates fidelity
to all of the elements of Hobbs Act extortion—including
the elements missing from petitioners’ complaint.
The right to free speech shelters a broad range of
expressive activity, including forms of communication
which many people might find offensive, coercive, and
disruptive. E.g., Texas v. Johnson, 491 U.S. 397 (1989)
(flag burning); City of Houston v. Hill, 482 U.S. 451
(1987) (confronting police officer); Cohen v. California,
403 U.S. 15 (1971) (profanity); NAACP v. Claiborne
Hardware Co., 458 U.S. 886 (1982) (boycotts enforced
through public embarrassment); Cantwell v. Connecticut,
310 U.S. 296 (1940) (attacking religious beliefs). Even
when protest activity inflicts economic injury, it does not
thereby become unlawful. NAACP v. Claiborne Hard-
ware Co., 458 U.S. 886 (1981); Thornhill v. Alabama,
310 U.S. 88 (1940).
— Bo
ty
The role of civil litigation to remedy unlawful conduct
in the context of group protests is therefore sharply lim-
ited: “precision of regulation” is essential.*’ Claiborne
Hardware, 458 U.S. at 916 (citing NAACP v. Button,
371 U.S. 415, 438 (1963)). In order to establish civil
liability, a plaintiff must show that each individual de-
fendant had a specific intent to engage in unlawful activ-
ity; furthermore, legal remedies are only permissible for
those losses that result from unlawful conduct. 458 U.S.
at 918-21.
Petitioners’ attempt to equate demonstrations with ex-
tortion does not meet the “heavy” burden of precision the
first amendment imposes in this sensitive area in order
to safeguard expressive “constitutionally protected activ-
ity.” /d. at 933-34. This Court should therefore reject
petitioners’ perversely expansive reading of the Hobbs
Act.
b. Federalism
Second, this Court is loathe to interpret federal statutes
in ways that “upset the usual balance of federal and state
powers.” New York v. United States, 112 S. Ct. 2408,
2425 (1992). See generally Gregory v. Ashcroft, 111
S. Ct. 2395, 2399-2401 (1991). “[Wle will not be quick
to assume that Congress has meant to effect a significant
change in the sensitive relation between federal and state
criminal jurisdiction.” United States v. Bass, 404 U.S.
336, 349 (1971). This rule militates against turning the
Hobbs Act into a device for federalizing such traditional
State offenses as trespass, obstruction of public passage,
and destruction of private property. See United States v.
Staszcuk, 517 F.2d 53, 55 (7th Cir.) (en banc) (per
Stevens, J.) (the “extraordinary growth of federal crim-
inal litigation poses a serious threat to the quality of
39 See generally Califa, RICO Threatens Civil Liberties, 48 Vand.
L. Rev. 805, 806 (1990) (“using RICO in ideological disputes is
inappropriate and harmful because it results in the chilling of
First Amendment rights”).
Oe ee ee me
45
federal justice; moreover, this growth may not only reflect
but contribute to the continuing transfer of power from
the several states to the national government. . . . [W]e
have no desire to accelerate this trend unnecessarily”),
cert. denied, 423 U.S. 837 (1975).
This Court expressed the same caution in refusing to
apply the Hobbs Act to unlawful conduct incident to a
labor strike:
[It] would require statutory language much more
explicit than that before us here to lead to the con-
clusion 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 juris-
diction of the States.
United States v. Enmons, 410 US. 396, 411 (1973)
(citations omitted). These same principles govern the
case at bar.
ce. Rule of lenity
Third, any “uncertainty concerning the ambit of crim-
inal statutes should be resolved in favor of lenity.” United
States v. Kozminski, 487 U.S. 931, 952 (1988) (and
cases cited). To accept petitioners’ unprecedented ex-
pansion of the Hobbs Act would be to stand this rule on
its head, as this would require both creating ambiguity
over whether the statutory terms mean what they say, and
then resolving that ambiguity in favor of an extremely
broad interpretation.
“The Court has often stated that when there are two
rational readings of a criminal statute, one harsher-than
the other, we are to choose the harsher only when Con-
gress has spoken in clear and definite language.” McNally,
483 U.S. at 359-60 (citations omitted). This rule serves
46 | .
many important purposes: “to promote fair notice to
those subject to criminal laws, to minimize the risk of
selective or arbitrary enforcement, and to maintain the
proper balance between Congress, prosecutors, and
courts,” Kozminski, 487 U.S. at 952.
As a criminal law, the Hobbs Act is subject to this
rule of strict construction. United States v. Enmons, 410
U.S. 396, 411 (1973); McCormick v. United States, 111
S. Ct. 1807, 1816 (1991). This Court must therefore
reject petitioners’ novel and highly strained construction
of federal criminal “extortion.”
* * * *
Petitioners have failed to allege facts that would con-
stitute even a single predicate act of federal criminal
extortion. Whereas the RICO statute requires at least
two or more such predicate acts, petitioners’ complaint
is fatally deficient. It follows that there is simply no
occasion even to reach the “economic purpose” question
under RICO.
CONCLUSION
For the foregoing reasons, this Court should affirm the
judgment of the court of appeals.
Respectfully submitted,
KEITH A. FOURNIER JAY ALAN SEKULOW
AMERICAN CENTER FOR LAW (Counsel of Record)
AND JUSTICE WALTER M. WEBER
1000 Centerville Turnpike AMERICAN CENTER FOR
Virginia Beach, VA 23464 LAW AND JUSTICE
(804) 523-7570 1000 Thomas Jefferson St., N.W.
VINCENT P. MCCARTHY Suite 520
8 South Main Street Washington, D.C. 20007
New Milford, CT 06776 (202) 337-2278
(203) 355-0923
Attorneys for Respondents Randall A. Terry,
Project Life, and Operation Rescue
September 29, 1993
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.