# Respondents Brief — National Organization for Women, Inc. v. Scheidler > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1130%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1994 - **Citation:** 510 U.S. 249 ## Text 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