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

No. 92-780

IN THE

Supreme Court of the United Stetes’ - ar, B

ne

'

.

‘Dd

OCTOBER TERM, 1993

pees i ‘

ate AYO 73 1993

NATIONAL ORGANIZATION FOR WOMEN, ef alk oF THe ¢y ERK

7h ee:

De

Pé

—vV.-—

JOSEPH SCHEIDLER, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF NOW LEGAL DEFENSE AND EDUCATION FUND, AMERICAN

HUMANIST ASSOCIATION, AMERICAN JEWISH COMMITTEE, AMERICAN

MEDICAL WOMEN’S ASSOCIATION, INC., AMERICANS FOR RELIGIOUS

LIBERTY, ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, B’NAI

B’RITH WOMEN, CALIFORNIA WOMAN LAWYERS, CHICAGO ABORTION

FUND, FEMINIST MAJORITY FOUNDATION, LAMBDA LEGAL DEFENSE AND

EDUCATION FUND, METHODIST FEDERATION FOR SOCIAL ACTION,

NATIONAL ABORTION RIGHTS ACTION LEAGUE, NATIONAL BLACK

WOMEN’S HEALTH PROJECT, NATIONAL FEDERATION OF TEMPLE SISTER-

HOODS, NATIONAL WOMEN’S LAW CENTER, NORTHWEST WOMEN’S LAW

CENTER, UNION OF AMERICAN HEBREW CONGREGATIONS, UNITARIAN

UNIVERSALIST ASSOCIATION, UNITED SYNAGOGUE OF CONSERVATIVE

JUDAISM, VOTERS FOR CHOICE, WOMEN EMPLOYED, WOMEN’S EQUAL

RIGHTS LEGAL DEFENSE AND EDUCATION FUND, WOMEN’S LAW

CENTER, WOMEN’S LAW PROJECT, WOMEN’S LEGAL DEFENSE FUND,

YWCA OF THE U:S.A., AMICI CURIAE, IN SUPPORT OF PETITIONERS

DEBORAH A. ELLIS DAVID I. GOLDBLATT

BURT NEUBORNE Counsel of Record

NOW LEGAL DEFENSE AND CHARLES S. SIMS

EDUCATION FUND HARRY W. LIPMAN

99 Hudson Street PROSKAUER ROSE GOETZ & MENDELSOHN

New York, New York 10013 1585 Broadway

(212) 925-6635 New York, New York 10036

(212) 969-3000

Attorneys for Amici Curiae

j

TABLE OF CONTENTS

I. NO BASIS EXISTS TO IMPOSE A JUDGE-MADE

REQUIREMENT OF ECONOMIC MOTIVE ON THE

PLAIN LANGUAGE OF RICO. IF, HOWEVER, A

REQUIREMENT OF ECONOMIC MOTIVE EXISTS

UNDER RICO, IT IS SATISFIED BY DEFENDANTS’

AVOWED DESIRE TO INFLICT ECONOMIC INJURY

Te. Ns oe eo ng a es 8 eo hee 8 2

A. No Requirement Of Economic Motive Exists Under

NI iad og Sa as ge banana elas Be ak eK z

B. If A Requirement Of Economic Motive Exists

Under RICO, It Is Satisfied By Defendants’

Conceded Desire To Inflict Economic Harm

On The Targets Of Their Lawless Acts .......... 7

Il. APPLICATION OF RICO TO ACTORS

WITH NO OVERRIDING ECONOMIC

MOTIVE DOES NOT POSE A THREAT

TO THE CONTINUATION OF THIS

NATION’S IMPORTANT TRADITION OF

PROTEST AND CIVIL DISOBEDIENCE .......... 14

A. RICO Poses No Threat To Protected Speech ...... 15

B. RICO Also Poses No Threat To Non-Violent

Civil Disobedaeeee . cs cc chk oe 68 wee es

The Abolitionist Movement ........-++++5:

The Women’s Suffrage Movement......-.---

Sit-Ins And The Civil Rights Movement ......--

The Gay Rights Movement .......---++++>

awry

C. RICO Does Pose A Threat To Political Terrorism,

But Does Not Thereby Threaten Either Protected

Expression Or Civil Disobedience ........----

CONCLUSION .....iss08 8s oee we eae ees oe @

APPENDIX

Statements of Interest of Amici Curiae

TABLE OF AUTHORITIES

Cases

Barr v. City of Columbia,

SN

Beauford v. Helmsley,

865 F.2d 1386 (2d Cir.), vacated,

492 U.S. 914, adhered to, 893 F.2d 1433

(2d Cir.), cert. denied, 493 U.S. 992 (1989)

Best Environmental Tech., Inc. v. Luff,

[1985-1987 Transfer Binder] RICO Bus.

Disputes Guide (CCH) 46419

(E.D. Pa. July 24, 1986) .............

Bray v. Alexamnder Woman’s Health Clinic,

__ US. __, 113 S. Ct. 753 (1993)...

Carey v. Brown, 447 U.S. 455 (1980) ..........

Callanan v. United States,

Eh |)

Cohen v. California,

8) Se

Collin v. Smith,

$78 F.2d 1197 (7th Cir.),

cert. denied, 439 U.S. 916 (1978) .......

F.T.C. v. Superior Court Trial Lawyers Ass’n,

RS

iV

Page

Feminist Women’s Health Center v. Roberts,

1989 U.S. Dist. LEXIS

See COr ee I Dik i ee i vt sees 4

Gay Students Serv. v. Texas A & M Univ.,

737 F.2d 1317 (Sth Cir. 1984), cert.

CE EE Ah NE bo he ko es ee 24

H.J. Inc. v. Northwestern Bell Tel. Co..,

ee ee eg es ok ke ce ee 4,5

Hecht v. Commerce Clearing House, Inc.,

ee ee ee Sas oc cae ee a 17

lannelli v. United States,

ate ake ae uo | 2

International Longshoremen’s Ass’n v. Allied

RT i, ee es Ee CD © i ee ee aes 7

Jacksonville Bulk Terminals, Inc. v. /nternational

Longshoremen’s Ass'n,

ee ee En ks eae as ee cs ee oe RS 7

Lombard v. Louisiana,

gs: as as a ee Ree eee 23

Myers v. Finkle,

758 F. Supp. 1102 (E.D. Va. 1990),

aff'd in pertinent part, 950 F.2d 165 (1991) ..... 17-18

NAACP vy. Claiborne Hardware Co.,

i D -as Se he eae eees ae 15, 17

National Organization for Women Inc. v. Scheidler,

te Ll irde L« Se, . : 4 rere 3-4, 7

New Negro Alliance v. Sanitary Grocery Co.,

Sao U.S. SSS PM) nk oe ee

New York State NOW y. Terry,

1993 U.S. App. LEXIS 16355

(2d Cir. July 2, 1993) ..............

NLRB vy. Catholic Bishop of Chicago,

440 U.S. 490 (1979) ..............

Northeast Women’s Center, Inc. v. McMonagle,

670 F. Supp. 1300 (E.D. Pa. 1987),

aff'd in pertinent part, 868 F.2d 1342

(3d Cir.), cert. denied,

SD Wi, Te CH i ke ee

Noto v. United States,

PF Ue. ae ce ee

NOW v. Operation Rescue,

816 F. Supp. 729 (D.D.C. 1993),

en ee ee

Organization for a Better Austin v. Keefe,

ee State PIR MUNN os ke eae

People v. Zackowitz,

254 N.Y. 192, 172 N.E. 466 (1930) ....

Peterson v. City of Greenville,

oe Wa Bee Clee hon ice Cae

Pro-Choice Network v. Walker,

a4 F 26 S09 (2d Cer. 1993) oo...

vi

Page

Reves v. Ernst & Young,

_U.S._, 113 S. Ct. 1163 (1993) .. 2... 3, 5, 17-18

Roberts v. United States Jaycees,

468 U.S. 609 (1984) 2.2, 17

Russello v. United States,

464 U.S. 16 (1983) 2... 3

Samuels v. Mackell,

401 U.S. 66 (1971) 220 ee, 17

Scales v. United States,

367 U.S. 203 (1961) 6 en, 17

Schick v. Ernst & Whinney,

[1990-1991 Transfer Binder] RICO Bus.

Disputes Guide (CCH) ¢ 7685

(S.D.N.Y. January 18, 1991) 22... 00000000.0.. 18

Sedima, S.P.R.L. v. Imrex Co..,

473 U.S. 479 (1985) 2 we, 4, 16

Texas v. Johnson,

491 U.S. 397 (1989) 6 ee, 15

Town of West Hartford v. Operation Rescue,

991 F.2d 1039 (2d Cir. 1993), petition

for cert. filed, USLW. (US.

July 19, 1993) 2 en 26

United States v. Anthony,

24 F. Cas. 829 (C.C.N.D.N.Y. 1873) 2.20000... 21

Vii

Page

United States v. Gambino,

566 F.2d 414 (2d Cir. 1977),

cert. denied, 435 U.S. 952 (1978) ............. 3

United States v. Ivic,

700 F.2d 51 (2d Cir. 1983) ................ 4.6

United States v. Jacobson,

691 F.2d 110 (2d Cir. 1982) ................ 3

United States v. Ruggiero,

726 F.2d 913 (2d Cir.),

cert. denied sub nom.

Rabito v. United States,

nn I oy or ar Bee 17

United States v. Spock,

416 F.2d 165 (iat Cir. 19969) 2... ww cc ws 17

United States v. Turkette,

_ 4 2 ah 2) | rae e: meme sree 3,4

Utz v. Correa,

631 F. Supp. 592 (S.D.N.Y. 1986), ............ 17

Wisconsin v. Mitchell,

oe * Ses i | 17

Yates v. United States,

BO Oe SP CEITD nwa woiwcdssavecciweun 17

Statutes

Hobbs Act,

ees ee TD a ak 30.6 bs eee 19

Vill

Fed. R. Evid. 40400)... we ee ee ee es

The Racketeer Influenced and Corrupt

Organizations Act (RICO), Pub. L.

91-452, Title IX, 84 Stat. 941, as

amended, 18 U.S.C. §§ 1961-1968

INTEREST OF AMICI CURIAE

This brief supporting the petitioners is filed, with the consent

of the parties, on behalf of a wide range of organizations and their

members. The specific interests of each amicus (described more fully

in the Appendix, infra) differ, but ail amici share a commitment to

protecting the civil rights of women under law.

This case is of special importance to amici because it tests

whether an important protection afforded by Congress will be denied

to women by the imposition of a non-text-based requirement that

renders RICO powerless to protect targets of sustained politicai

terrorism. The violent methods of Operation Rescue, used today to

deprive women and those who help women of constitutional and other

valuable rights, can be used tomorrow against any of us.

SUMMARY OF ARGUMENT

The plain language of RICO lacks an economic motive

requirement, and there is no basis for judicially imposing one. This

Court's recent precedents have consistently rejected constructions of

RICO that, like defendants’ reading here, lack a textual basis. If

RICO does require economic motive, it is present here because

defendants have intentionally inflicted widespread and severe

economic injury on their victims. There is no reason to believe that

Congress intended to exclude political terrorism from RICO’s broad

coverage.

Application of RICO as written to defendants’ repeated and

continuous commission of violent, criminal acts does not pose a threat

to the continuation of this nation’s important tradition of protest and

civil disobedience. RICO does not, and constitutionally could not,

proscribe expressive conduct protected by the First Amendment. Nor

is the non-violent civil disobedience which has characterized great

movements for social change, such as that engaged in by Dr. Martin

Luther King, threatened by RICO; while such bearing of moral

witness may be unlawful, it does not constitute the kinds of serious

crimes that are predicate acts under RICO. What RICO does

threaten, and appropriately so, is the systematic commission of

2

criminal acts of violence and intimidation such as those engaged in by

the defendants in this case.

I.

ARGUMENT

NO BASIS EXISTS TO IMPOSE A JUDGE-MADE

REQUIREMENT OF ECONOMIC MOTIVE ON THE

PLAIN LANGUAGE OF RICO. IF, HOWEVER, A

REQUIREMENT OF ECONOMIC MOTIVE EXISTS

UNDER RICO, IT IS SATISFIED BY DEFENDANTS’

AVOWED DESIRE TO INFLICT ECONOMIC INJURY

ON THEIR VICTIMS

A. No Requirement Of Economic Motive Exists

Under RICO

The Racketeer Influenced and Corrupt Organizations Act

(RICO)' is premised on Congress’ recognition that organized

combinations of lawbreakers pose a unique threat to the rule of law.’

Accordingly, RICO weaves multiple acts of organized lawlessness,

i)

Pub. L. 91-452, Title [X, 84 Stat. 941, as amended, 18 U.S.C.

$§ 1961-1968 (1993).

Anglo-American law has long recognized that concerted criminal activity

is more dangerous than the same activity committed by individuals.

Tannelli v. United States, 420 U.S. 770, 778 (1975) (Powell, J.)

(“[C]ollective criminal agreement--partnership in crime--presents a

greater potential threat to the public than individual delicts.”) (quoting

Callanan v. United States, 364 U.S. 587, 593 (1961)). The aggravated

risks posed by concerted action were analyzed by Justice Frankfurter in

Callanan, 364 U.S. at 593 (concerted criminality affords greater chance

of success in carrying out a planned offense, makes abandonment of the

offense less likely, allows attainment of more complex criminal ends,

and creates a greater chance of committing further, unrelated crimes).

3

committed as part of a pattern involving an “enterprise”, into a single

federal offense subject to substantial criminal and civil sanctions.’

In this case, plaintiffs allege that the named defendants formed

and used an “enterprise” to facilitate the commission of a pattern of

unlawful acts against women’s health clinics and women seeking to

exerc’se their constitutional right to terminate a pregnancy.* Despite

Congress’ use of broad, functionally descriptive language in RICO,

the court below superimposed a non-textual requirement that the

multiple acts of lawlessness covered by RICO must be motivated by

a desire for economic gain.’ National Organization for Women Inc.

Prior to RICO, American courts had traditionally treated multiple

violations of law in splendid isolation from one another. See People v.

Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1930); Fed. R. Evid. 404(b).

* In the scenario envisioned by 18 U.S.C. §§ 1962(a) and (b) (1984), it

is an “enterprise” as victim that provides the common denominator

linking a pattern of lawless acts into a cognizable whole. E.g., United

States v. Jacobson, 691 F.2d 110, 111-12 (2d Cir. 1982); United States

v. Gambino, 566 F.2d 414 (2d Cir. 1977), cert. denied, 435 U.S. 952

(1978). In the § 1962(c) scenario invoked by plaintiffs, it is an

“enterprise” as predator that provides the common thread binding a

pattern of lawlessness into a single offense. E.g., United States v.

Turkette, 452 U.S. 576 (1981); Russello v. United States, 464 U.S. 16

(1983). See Reves v. Ernst & Young, _U.S._, 113 S. Ct. 1163

(1993).

° The paradigm of an organized combination of lawbreakers acting

through systematic violation of law is the Mafia. Not surprisingly, the

permutations envisioned in §§ 1962(a), (b) and (c), cover the

characteristic behavior of organized crime. But the 1970 Congress did

not merely outlaw the Mafia, both because it is impossible to draft a

statute aimed solely at membership in a shadowy, wholly unlawful

organization; and because the characteristic behavior of organized crime

— systematic violation of law by an organized combination of

lawbreakers — poses a serious threat to the rule of law no matter who

the lawbreakers may be. Instead, Congress outlawed the Mafia’s modes

(continued...)

4

v. Scheidler, 968 F.2d 612 (7th Cir. 1992). But see Northeast

Women’s Center v. McMonagle, 868 F.2d 1342 (3rd Cir.), cert.

denied, 493 U.S. 901 (1989) (rejecting requirement of economic

motivation).°

This Court has repeatedly rejected similar efforts to impose

judge-made restrictions on the plain language of RICO. In United

States v. Turkette, 452 U.S. 576 (1981), this Court upheld the

application of RICO to an arson ring, rejecting a non-textual effort to

limit “enterprise” in § 1962(c) to the type of victim-enterprise

contemplated in §§ 1962(a) and (b) (1984). In Sedima, S.P.R.L. v.

Imrex Co., 473 U.S. 479 (1985), this Court rejected a non-textual

effort to limit RICO liability to conduct resulting in criminal

convictions. The Sedima Court rejected, as well, a non-textual effort

to require a separate “racketeering injury” over and above the harms

caused by defendants’ acts of systematic lawlessness. In H.J. Inc. v.

Northwestern Bell Tel. Co. , 492 U.S. 229 (1989), this Court rejected

a non-textual effort to require that the pattern of lawless behavior

underlying RICO involve separate illegal schemes.’ Most recently,

5(...continued)

of operation. Under RICO, therefore, “organized crime is as organized

crime does.” Gerard E. Lynch, RICO: The Crime of Being a Criminal

Pts. 1 & 2, 87 Colum. L. Rev. 661, 687 (1987).

* — See also United States v. Ivic, 700 F.2d 51 (2d Cir. 1983) (requiring

economic motivation); Feminist Women's Health Center v. Roberts,

1989 U.S. Dist. LEXIS 5837 (W.D. Wash. 1989) (ejecting requirement

of economic motivation). See generally Note, The Use of Civil RICO

Against Antiabortion Protestors and the Economic Motive Requirement,

90 Colum. L. Rev. 1341 (1990); Note, Civil Disobedience and Civil

RICO: Anti-Abortionists as Racketeers, 93 W. Va. L. Rev. 359 (1991).

’ Consistent with RICO’s text and purpose, the H.J. Court stressed that

the requisite RICO pattern of lawlessness must “show that the

racketeering predicates are related, and that they amount to or pose a

(continued...)

5

in Reves v. Ernst & Young, ___ U.S. _-_, 113 S. Ct. 1163 (1993),

this Court construed § 1962(c) to require that a RICO defendant play

some part in directing the enterprise’s affairs, rejecting a non-textual

requirement of “significant control” over the enterprise. /d. at 1170,

n.4.

Two themes emerge from the Court’s RICO cases: (1) strict

fidelity to the Congressional text; and (2) sympathetic understanding

that Congress intended RICO to provide broad federal protection

against organized lawlessness. The lower court’s effort to create an

implied exception to RICO for politically motivated lawlessness

ignores the Congressional text, the purpose of RICO and the relevant

precedents of this Court.

No textual support exists for the imposition of a requirement

of economic motive in a RICO case. The key definitions of

“enterprise” and “pattern of racketeering activity” in 18 U.S.C.

§ 1961 make no distinction between lawlessness motivated by greed

and identical patterns of lawlessness motivated by hatred, misplaced

idealism or some other “non-economic” motive. The operative

imposition of criminal and civil liability in §§ 1962 and 1964 likewise

give no hint of distinguishing between “economic” and “non-

economic” crimes.*

Nor is there any validity to defendants’ argument that

Congress’ use of the term “enterprise” connotes a requirement of

”(...continued)

threat of continued criminal activity.” 492 U.S. at 239 (emphasis in

original).

* 18 U.S.C. § 1964(c) does require that a plaintiff be injured in her

“business or property” by the defendants’ pattern of lawlessness in order

to invoke civil RICO. But § 1964(c) simply defines the harm civil

RICO is designed to redress. It has nothing to do with the motive

underlying defendants’ acts. As the recent bombing of the World Trade

Center in New York City illustrates, politically motivated terrorism can

have devastating economic consequences.

6

economic motive. As defined in 18 U.S.C. § 1961(4),° “enterprise”

is far broader than an economic combination. While the term

“enterprise” as used in §§ 1962(a) and (b) will often — but not

always — be an economic entity because of its status as victim or

target,’ the role played by a predator-enterprise under § 1962(c) has

no intrinsic connection with commerce. Indeed, the worldwide

resurgence of political, racial, religious and ethnic terrorism makes

it painfully clear that the threat to the rule of law posed by organized

combinations of lawbreakers is not confined to the economic sphere.

If anything, Congress’ perception in 1970 and again in 1984 of the

inadequacy of a purely “transactional”'’ approach to patterns of

lawlessness is most compelling in the area of political terrorism.

Finally, similar efforts to invent non-textual statutory

exemptions based on an illusory distinction between “political” and

“economic” motivation have been uniformly rejected by this Court,

most tellingly in the context of the anti-trust laws, the conceded

model for RICO. In F.7.C. v. Superior Court Trial Lawyers Ass'n,

493 U.S. 411 (1990), this Court explicitly rejected the argument that

Section 1961(4) defines an enterprise as:

. any individual, partnership, corporation, association, or

other legal entity, and any union or group of individuals

associated in fact though not a legal entity.

'0 Both the court below and the Second Circuit in United States v. Ivic,

supra, appear to have ignored the fact that non-economic entities like

political parties and churches might be the target of systematic lawless

activity in violation of § 1962(b) with no economic motive. Patterns of

lawlessness may be directed against churches, political parties and entire

communities as victim-enterprises in order to silence or terrorize them.

Kristallnacht was not designed to make a profit.

The term “transactional” to describe the treatment of multiple violations

of law as wholly independent events is drawn from Gerard E. Lynch,

RICO: The Crime of Being A Criminal, Pts. 3 & 4, 87 Colum. L. Rev.

920, 932-37 (1987).

7

a horizontal price-fixing conspiracy was outside the purview of the

anti-trust laws because the participant lawyers were motivated by a

desire to protect their clients’ constitutional rights. In New Negro

Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938), this Court

rejected an effort to distinguish between “economically” and “politi-

cally” motivated labor picketing, holding that picketing by

“outsiders” seeking to induce an employer to hire black workers was

fully protected by the Clayton and Norris-LaGuardia Acts. New

Negro Alliance was reaffirmed in Jacksonville Bulk Terminals, Inc.

v. International Longshoremen’s Ass’n, 457 U.S. 702 (1982), where

this Court held once again that the existence of a political motive does

not remove a labor dispute from the Norris-LaGuardia Act’s gloss on

the Clayton Act’s labor exemption Finally, in J/nternational

Longshoremen’s Ass’n v. Allied Int’l, Inc., 456 U.S. 212 (1982), the

Court unanimously rejected an effort to distinguish between secondary

boycotts on the basis of “economic” and “political” motivation.

B. If A Requirement Of Economic Motive Exists

Under RICO, It Is Satisfied By Defendants’

Conceded Desire To Inflict Economic Harm

On The Targets Of Their Lawless Acts

The court below insisted not only that defendants be shown

to have acted with an economic motive, but also that the economic

motive must be the acquisition of gain, not the intentional infliction

of loss. National Organization of Women Inc. v. Scheidler, 968 F.2d

612, 629 (7th Cir. 1992). Since no textual basis exists for the

imposition of any economic motive requirement, there is certainly no

support in the statute for insisting that the motive be economic gain

rather than the infliction of economic loss. There is nothing in the

text or the legislative history of RICO to suggest that Congress

wished to provide a remedy against systematic lawlessness motivated

by greed, but no remedy for the identical lawless behavior causing the

identical economic injury motivated by hatred or misplaced idealism.

8

Here, defendants’ clear and unmistakable motive to cause

economic loss is not in dispute. Defendants make no effort to conceal

their desire to inflict economic injury on the targets of their repeated

lawlessness. For example, defendant Scheidler concedes that “. . .

the activities and methods proposed in this book are intended to

interfere with and even stop the business of abortion. . . .” Joseph

M. Scheidler, Closed: 99 Ways to Stop Abortion 18 (1985) (emphasis-

in original).'? Most obviously, defendants’ aim is to drive abortion

clinics out of business. Since free-standing clinics provide

inexpensive abortions, closing clinics would mean not only that fewer

facilities would provide abortions, but also that the price of abortions

would rise beyond the means of millions of women. JA 42, 46, 53.

To accomplish these ends, the defendants use numerous

unlawful tactics including bombing and arson, physical destruction of

property, forcible unlawful entry, physically blockading and

assaulting clinic employees and clients -as they enter or exit the

clinics, lock and block (individuals locking themselves to cement

blocks), and gluing clinic door locks to prevent entry. JA 39-40, 50,

53-55, 95, 118-97. These tactics are designed to compel clinics to

close by forcibly preventing women from keeping appointments and

by intimidating women from doing business with the clinics in the

future. JA 49, 55.%

“ More recently, the National Director of Operation Rescue National

testified before Congress, “My desire would be to see abortion clinics

stopped, closed.” Freedom of Access to Clinic Entrances Act of 1993,

S. Rep. No. 117, 103d Cong., Ist Sess. 11 (1993) [hereinafter Senate

Report].

For example, in an attempt to force clinics to close, defendants engaged

in four months of systematic actions in Atlanta, Georgia, in 1988,

resulting in over 1,200 arrests. The defendants assaulted police officers

and committed acts of false imprisonment and trespass. JA 56. The

conspirators’ violence and criminal conduct are further illustrated by the

acts of co-conspirator John Burt, who led the action at the Ladies Center

(continued...)

9

Even when defendants are unable to close a free-standing

abortion clinic permanently, they admit that their unlawful acts are

designed to disrupt a clinic’s operations,"* intentionally inflicting

economic injury both on the clinic and on women seeking an

inexpensive abortion. The defendants’ actions in this case are part of

a national conspiracy directed at women, doctors and clinics.’

Records of the National Abortion Federation show that between 1990

and June 1993, there have been 595 acts of violence at abortion and

pregnancy health care clinics."®

'5(.. continued)

in Pensacola, Florida, which immediately preceded the tragic murder of

Dr. David Gunn on March 10, 1993. Burt was known to be violent.

During a 1986 siege of the same clinic, he injured two women and along

with a companion destroyed medical equipment and other property. He

had to be restrained from further violence by the police and was later

convicted on criminal charges stemming from those actions. JA 50-52.

Defendant Terry's book instructs followers in the ways clinic operations

are most effectively interrupted. He exhorts readers to answer a “higher

law” by “enter[ing] procedure rooms...[and] lock[ing] themselves in.”

He also urges them to arrive at the clinic before it opens and “block the

door with their bodies, their cars, or special locks, so that no one can

get in. It can be quite exciting....” He writes, “Sometimes it iakes the

police hours to remove the rescuers. No children will be killed during

that time. Sometimes the abortuary will close for the whole day.”

Randall A. Terry, Operation Rescue 124 (1988). See also Joseph M.

Scheidler, Clused: 99 Ways to Stop Abortion 214-216 (1985).

In her testimony before the Senate Labor and Human Resources

Committee concerning the Freedom of Access to Clinic Entrances Act

of 1993, Attorney General Reno addressed the national character of the

defendants’ violence and organization: “This is a problem that is

national in scope. It is occurring throughout the country....” Senate

Report, supra note 12, at 12.

National Abortion Federation, Incidents of Violence & Disruption

Against Abortion Providers (1993). For the period between January

(continued...)

10

These violent acts have a disproportionate economic effect on

low-income women because low-income women are more likely to

use clinics than are other women.'’ The blockading and closing of

clinics deny access to low-income women seeking inexpensive

abortions and deprive these women of other low-cost reproductive

health care. In the absence of clinics, low-income women must seek

care in private physicians’ offices at considerably higher costs or rely

on services provided by public hospitals.'* Low-income women are,

however, unlikely to be able to afford private medical assistance

because they are not likely to be covered by either public or private

insurance.’* Although most reproductive health care is provided by

private physicians, low-income women cannot reasonably rely on

'®(...continued)

1990 and June 25, 1993, the report documents 2 clinic bombings, 35

incidents of arson at clinics, and 18 attempted bombings or arsons. /d.

'7 Jacqueline A. Horton, The Women’s Health Data Book: A Profile of

Women’s Health in the United States 100 (1992).

'® Charges for an abortion performed in a hospital are up to seven times

higher than one performed in an abortion clinic. Jd. at 100. Moreover,

many hospitals do not provide abortions; 7 1988 study indicates that of

the country’s 5,533 short term general hospitals only 19% provide

abortions. The number of abortion providers has consistently declined

since 1985 and nonsecular hospital providers have led the decline.

Stanley K. Henshaw, Abortion Services in the United States, 1987 and

1988, in Abortion Medicine And The Law 482, 494 (J. Douglas Butler,

David F. Walbert eds., 1990).

'9 Public Health Service, U.S. Department of Health and Human Services,

Health Status of Minorities und Low Income Groups: Third Edition 99

(1991).

11

private physicians for reproductive health care because of high costs

and lack of insurance coverage.”

For low-income women who are eventually able to use the

clinics’ services, notwithstanding defendants’ efforts to impede them,

the defendants’ actions greatly increase the costs of such services and

their related expenses. Already, women seeking abortions often must

travel great distances to obtain necessary services because 83% of all

counties in the United States are without abortion providers.”" The

defendants’ conspiracy limits access even more. When clinics are

closed or their business curtailed, women must reschedule

appointments or accept referrals to distant clinics. Being forced to

return to clinics a second and third time imposes devastating

economic consequences on women who cannot afford another day of

lost wages; cannot afford another day of child care; and cannot afford

the transportation, lodging, and meai costs of repeating the often

2

Women relying on Medicaid are hampered by the fact that many

physicians do not accept publicly insured patients. One study shows that

only 22,000 out of 34,000 office-based physicians providing obstetric,

gynecological or general family care accept Medicaid. The Alan

Guttmacher Institute, Prenatal Care in the United States: A State and

County Inventory 63 (1989).

“' Stanley K. Henshaw and Jennifer Van Vort, Abortion Services in the

United States, 1987 and 1988, 22 Family Planning Perspectives 102,

106-07 (May/June 1990).

The circumstances for women seeking second or third trimester

abortions are even more difficult. Only a small number of clinics

provide abortion services after the first trimester. Only 13% of all

physicians who perform abortions will do so after the 12th week and

fewer still provide care after the 16th week of gestation. See Council

on Scientific Affairs, American Medical Association, Induced

Termination of Pregnancy Before and After Roe v. Wade; Trends in the

Mortality and Morbidity of Women, 268 Journal of the American

Medical Association, 3231, 3238 (1992) [hereinafter Council on

Scientific Affairs].

12

excruciating trip of hundreds of miles to reach the clinic.” Once a

woman has missed her scheduled appointment, she may not be able

to make arrangements for another appointment for weeks, a delay that

increases the risk of complications and therefore costs.” When this

delay results in women being forced to undergo second trimester

abortions, there are increased medical risks“ and costs” and a

ie

B

Horton, supra note 17, at 101 (33% of all abortions are performed

outside of the woman's county of residence; 18% of women seeking

abortion were forced to travel over SO miles; 9% of these women

traveled over 100 miles to secure care).

See Council on Scientific Affairs at 3238 (“Anything that delays the

[abortion] procedure increases the costs incurred, decreases providers’

willingness to perform the abortion, and increases the health risks

associated with the procedure”).

Procedures performed at 11-12 weeks are three times more dangerous

than abortions performed at or before 8 weeks. Stanley K. Henshaw,

Induced Abortion: A World Review, 1990, in Abortion, Medicine, And

The Law (J. Douglas Butler, David F. Walbert eds., 1990).

The usual procedure for a second trimester abortion includes a series of

injections and the insertion of pre-abortion laminaria to cause cervical

dilation. The laminaria is removed after a 12-24 hour period. Each

step of the procedure requires the presence of a doctor, other trained

personnel and medical supplies and equipment. Delay in removal of the

laminaria creates a serious potential for infection and hemorrhaging.

William Cates Jr., et al., Dilatation and Evacuation Procedures and

Second-Trimester Abortions; The Role of Physician Skill and Hospital

Setting, 248 Journal Of the American Medical Association 559, 560

(1982); Senate Report, supra note 12, at 15-16.

On average, an abortion performed at a clinic at 10 weeks costs $245;

at 16 weeks it costs $509; at 20 weeks it costs $897. Horton, supra

note 17, at 100.

The increased cost of second trimester abortions also limits the ability

of private funding to assist women with the cost of necessary health

care. Organizations such as the Chicago Abortion Fund (“CAF”), one

(continued...)

13

longer period of recuperation, which increases the costs of lost wages

and child and family care.

The economic harm resulting from clinic blockades and

forced closures also affects low-income women harshly because of

State and federal restrictions on Medicaid funding. Only twelve states

provide Medicaid funding for abortions of pregnancies not resulting

from rape or incest or that involve health conditions that threaten the

life of the mother.” The cost of an abortion is a significant burden

for low-income women, taxing already limited resources. Women

must often decide whether to obtain abortion or use their funds for

other necessities.

Defendants’ tactics also prevent low-income women of all

ages from receiving other crucial medical services, because many

clinics targeted by defendants, including the named plaintiff clinics,

offer an array of gynecological health services. Such clinics may be

the only available sites offering low-cost mammography, family

planning, preventive cancer screening, and sexually transmitted

disease testing. JA 41-42.”” The defendants’ violent conduct thus

>(...continued)

of the amici here, are dedicated to aiding women financially with health

care needs. When CAF and similar private funders are forced to assist

with the higher costs of second trimester abortions, they are able to help

fewer women. Thus, more low-income women are forced to pay the

full costs of abortion services, precluding abortion as a realistic

reproductive choice for many women.

* National Abortion Rights Action League Foundation, Who Decides? A

State-by-State Review of Abortion Rights 145 (4th ed. 1993). States

providing Medicaid funding for abortions are: Alaska, California,

Connecticut, Hawaii, Massachusetts, New Jersey, New York, North

Carolina, Oregon, Vermont, Washington, and West Virginia. /d.

” Almost all facilities that perform abortions provide other medical

services, including contraceptive care, gynecologic care, STD treatment,

(continued...) |

14

results in economic harm to low-income women and restricts critically

needed health care for this vulnerable community.

Lacking support in text, policy or precedent, the effort to

graft a requirement of economic motive onto the plain language of

RICO should be rejected. However, if an economic motive is

required, it is plainly satisfied here by the economic harm

intentionally visited upon women by defendants’ lawlessness.

Il. APPLICATION OF RICO TO ACTORS

WITH NO OVERRIDING ECONOMIC

MOTIVE DOES NOT POSE A THREAT

TO THE CONTINUATION OF THIS

NATION’S IMPORTANT TRADITION OF

PROTEST AND CIVIL DISOBEDIENCE

In an attempt to avoid the plain language of RICO, defendants

contend that RICO would pose a threat to this nation’s important

tradition of protest and dissent if it is construed to reach defendants’

unlawful conduct.™ Defendants not only disingenuously characterize

their own protest methods as akin to those employed by certain

significant protest movements, but they also appear seriously to

misunderstand our nation’s tradition of protest and civil disobedience.

Applied as written to defendants’ repeated and continuous acts

of violence and intimidation, RICO does not impinge on First

Amendment activity. There is no reason to construe RICO more

narrowly than its plain language in order to avoid constitutional

77(_. continued)

obstetric care, HIV testing, infertility services, and general medical

care. Stanley K. Henshaw, The Accessibility of Abortion Services in the

United States, 23 Family Planning Perspectives 246, 247

(November/December 1991).

* See Brief of Respondents Joseph M. Scheidler, Timothy Murphy,

Andrew Scholberg, and the Pro-Life Action League, Inc. in Opposition

to Petition for Writ of Certiorari, at 6-8.

15

difficulties. See, e.g., NLRB v. Catholic Bishop of Chicago, 440

U.S. 490, 500 (1979). . Unlike either the constitutionally protected

expressive conduct that has characterized the bulk of social and

political protest activity, or civil disobedience — the unprotected but

non-violent conduct traditionally subject to relatively minor sanctions

— defendants’ conduct subject to RICO is wholly unprotected and

extremely harmful. It falls into a third category, marked by highly

organized acts of violence and intimidation, and thus deserves neither

protection nor toleration.

A. RICO Poses No Threat To Protected Speech -

Expression regarding issues of public concern “has always

rested on the highest rung of the hierarchy of First Amendment

values.” NAACP y. Claiborne Hardware Co., 458 U.S. 886, 913

(1982), quoting Carey v. Brown, 447 U.S. 455, 467 (1980).

Accordingly, picketing, leafletting, public demonstration, and marclies

— conduct historically engaged in by social and political movements

in an effort to challenge and change the laws and mores of our society

— have all enjoyed constitutional immunity from government sanction

or censure. See, e.g., Organization for a Better Austin v. Keefe, 402

U.S. 415 (1971). Indeed, the First Amendment protects even the

most repugnant and offensive speech. See Texas v. Johnson, 491

U.S. 397 (1989); Cohen v. California, 403 U.S. 15 (1971); Collin y.

Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916 (1978).

RICO represents no threat to activity historically associated

with the exercise of free speech and peaceful assembly, because such

protected activity is not “chargeable,” “indictable” or otherwise

included in the definition of “racketeering activity” under 18 U.S.C.

§ 1961(1). For the same reason, RICO does not chill potential First

Amendment demonstrators by instilling fear that the unlawful acts of

others might trigger vicarious RICO liability. Protest organizations

and their members who do not commit or agree to commit certain

serious federal crimes, e.g., wire fraud, mail fraud, bankruptcy fraud,

securities fraud, and Hobbs Act extortion, or serious state crimes

16

involving murder, arson, extortion, bribery and the like (18 U.S.C.

§ 1961(1)), can have no liability under RICO. For, in order to

establish RICO liability under § 1962(c), a plaintiff must plead and

prove that each defendant conducted or participated in an enterprise

through a pattern of racketeering activity. See Sedima, S.P.R.L. v.

Imrex Co., 473 U.S. 479, 495 (1985); Reves v. Ernst & Young, __

U.S. __, 113 S. Ct. 1163, 1169 (1993); cf Beauford v. Helmsley,

865 F.2d 1386, 1391 (2d Cir.), vacated, 492 U.S. 914, adhered to,

893 F.2d 1433 (2d Cir.), cert. denied, 493 U.S. 992 (1989) (isolated

or sporadic acts do not satisfy the pattern requirement). That RICO

has been applied against Operation Rescue but not against the

National Conference of Catholic Bishops is no accident but a function

of the two organizations’ substantially different methods of dissent.

Courts confronted with RICO-based anti-abortion protest cases

have consistently guarded against any intrusions of RICO into activity

protected by the First Amendment, without having to depart from the

plain statutory language. See Northeast Women’s Center, Inc. ¥.

McMonagle, 868 F.2d 1342, 1349 (3d Cir.), cert. denied, 493 U.S.

901 (1989) (approving the following charge to the jury):

The First Amendment of the United States

Constitution guarantees the defendants a right to

express their views. The defendants have a consti-

tutional right to attempt to persuade the Northeast

Women’s Center to stop performing abortions. They

have a constitutional right fo attempt to persuade the

Center’s employees to stop working there and they

have a constitutional right to attempt to persuade the

Center’s patients not to have abortions there... .

The mere fact, also, that the defendants or some of

their protests may be coercive or offensive, does not

diminish the First Amendment right to a protest.

Even in its conspiracy provision, 18 U.S.C. § 1962(d), RICO

requires that each defendant at the very least agree to commit a

17

§ 1962 violation.” Thus, the statute closely follows the First

Amendment requirement that a defendant must be an active

participant in an unlawful association, with a specific intent to further

its unlawful ends, before being held responsible for its misdeeds.

Noto v. United States, 367 U.S. 290 (1961); Scales v. United States,

367 U.S. 203 (1961); Yates v. United States, 354 U.S. 298 (1957);

United States v. Spock, 416 F.2d 165 (1st Cir. 1969).

For similar reasons, RICO does not destroy the careful

distinction made in NAACP v. Claiborne Hardware between protected

speech and violent action. See Wisconsin v. Mitchell, _U.S.___,

113 S. Ct. 2194, 2199 (1993), quoting Roberts v. United States

Jaycees, 468 U.S. 609, 628 (1984) (“[V]iolence or other types of

potentially expressive activities that produce special harms distinct

from their communicative impact . . . are entitled to no constitutional

protection”); see also Samuels v. Mackell, 401 U.S. 66, 75 (1971)

(Douglas, J., concurring). RICO simply does not punish those who

merely associate with RICO violators or who belong to organizations

that systematically engage in unprotected, violent activity.” Reves

% See, e.g., United States v. Ruggiero, 726 F.2d 913, 921 (2d Cir.), cert.

denied sub nom. Rabito v. United States, 469 U.S. 831 (1984)

(dismissing RICO conspiracy count where government failed to show

agreement to commit two predicate crimes); Hecht v. Commerce

Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990). Indeed, some

courts have held that the agreed-to predicate acts must themselves form

a “pattern.” See, e.g., Utz v. Correa, 631 F. Supp. 592, 596

(S.D.N.Y. 1986) (RICO conspiracy clain: against defendants dismissed

because “[t]he only activities possibly chargeable to them fail to give

rise to a pattern of racketeering activity”).

%* — The lower courts have been vigilant in requiring that RICO allegations

particularly describe the illegal conduct of each defendant. See, e.g.,

Myers v. Finkle, 758 F. Supp. 1102, 1111 (E.D. Va. 1990), aff'd in

pertinent part, 950 F.2d 165 (1991) (“A RICO complaint must identify

each ‘person’ who is alleged to be liable. Collectivizing ‘defendants’ in

(continued...)

18

v. Ernst & Young, __ U.S. __,, 113 S. Ct. 1163, 1170 (1993),

offers further insulation from RICO liability for demonstrators who

do not play “some part in directing the enterprise’s affairs.”

RICO’s coverage so plainly excludes protected acts of protest

that it would be unreasonable for a protester to eschew engaging in

such conduct for fear of incurring RICO liability. RICO thus could

very well have the effect of channeling toward lawful expressive

activities those who might otherwise engage in both non-violent and

violent protest tactics, thereby in fact augmenting the exercise of First

Amendment rights.

B. RICO Also Poses No Threat To Non-Violent

Civil Disobedience

A second important part of our tradition of protest consists of

non-violent civil disobedience that cannot claim substantive

constitutional protection, but that has served as an effective means of

bearing moral witness against perceived injustice. See generally

Martin Luther King, Jr., Letter From the Birmingham City Jail

(1963). RICO poses no threat to such activity, since, properly

construed, the “pattern of racketeering activity” required to trigger

RICO does not include the acts of non-violent civil disobedience that

*(...continued)

the alleged pattern of racketeering activity will not suffice”); Schick v.

Ernst & Whinney, [1990-1991 Transfer Binder] RICO Bus. Disputes

Guide (CCH) ¢ 7685 at 11,324 (S.D.N.Y. January 18, 1991) (RICO

allegations improperly failed to distinguish between the defendants); Best

Environmental Tech. v. Luff, [1985-1987 Transfer Binder] RICO Bus.

Disputes Guide (CCH) { 6419 at 6,278 (E.D. Pa. July 24, 1986) (“In

order to state a RICO claim against any individual defendant, the

plaintiff must allege [each RICO element] with regard to that

defendant”) (emphasis added).

19

have characterized our tradition, such as criminal trespass and

disorderly conduct.”

Examination of several important movements in this country’s

history, and of a highly effective, non-violent contemporary

movement, demonstrates RICO’s inapplicability to the kinds of

expressive conduct and civil disobedience tr iditionally engaged in by

social and political activists.

1. The Abolitionist Movement

In 1833, the American Anti-Slavery Society resolved that its

members would not “vindicat[e slaves’] rights by resorting to physical

force.” Accordingly, throughout the 1830s and ’40s, the

abolitionists kept their commitment to non-violence despite increasing

violence directed at them by anti-abolitionists.* | Abolitionists

typically distributed newsletters advocating freedom for the slaves and

organized campaigns to teach slaves how to read and write. These

The recent arrests of Patricia Ireland, President of NOW, and David

Mixner, President Clinton’s former senior campaign adviser, for acts of

civil disobedience to protest the recently adopted policy relating to

lesbians and gay men in military service (see Cindy Loose, Former

Clinton Adviser Arrested in Gay-Rights Protest at White House, Wash.

Post, July 31, 1993, at AS) make clear that even without an economic

motive requirement RICO poses no danger of inhibiting traditional

protest activity. RICO cannot reach Ireland’s and Mixner’s non-violent

conduct because that conduct does not amount to predicate acts under 18

U.S.C. § 1961(1).

2 Gerald Sorin, Abolitionism 89 (1972).

Between 1830 and 1840, “there were three hundred cases of violent

vigilante ‘reprisal’ against those who espoused anti-slavery opinions.

The abolitionists did not generally retaliate.” Jd. at 90.

20

were crimes in the south but not acts that would have been subject to

RICO as acts of racketeering, had RICO then been in effect.*

In their brief in opposition to plaintiffs’ petition for writ of

certiorari, at 7, respondents suggest that the abolitionists “extorted”

the right to trade slaves. This argument is as inaccurate as it is

offensive. The abolitionists operating the Underground Railroad

cannot reasonably (and could not constitutionally) be construed as

having taken “property” by extortion. Their purpose was to help

slaves escape and start new lives, but their conduct involved no

violence or threats of force to accomplish a deprivation of

“property.”** To the extent that violence did effect a transfer of

property, of course, it was the violence of the Civil War, not that of

the abolitionists.

2. The Women’s Suffrage Movement

From its inception in the early 1870’s, the women’s suffrage

movement was dedicated to obtaining voting rights for women in this

country. Suffragists’ activities for the most part were calculated to

educate the public and included speeches, rallies, publishing a

* John F. Hume, The Abolitionists 55-56; 76-77; 103-04; 116-17 (1905);

see also, Abolitionists in Northern Courts: The Pamphlet Literature

(Paul Finkelman, ed., 1988).

35 The Model Penal Code defines theft by extortion to include “to bring

about a transfer” of “property of another by threatening to: (1) inflict

bodily injury on anyone; or ... (3) expose any secret tending to subject

any person to hatred, contempt or ridicule; or ... inflict any other harm

which would not benefit the actor.” Model Penal Code §§ 223.0(5) and

223.4 (Official Draft and Revised Comments 1980). Extortion under

the Hobbs Act, 18 U.S.C. § 1951(b)(2) (1984), is “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 official

right.”

21

newspaper (The Revolution), and distributing leaflets and circulars.”

Some suffrage activists went further and engaged in acts of civil

disobedience, but not the kind of felonious activity listed under RICO.

In 1917, some suffragists commenced an aggressive campaign

of picketing the area around the White House to send a resistant

President Wilson as well as the nation the message that women would

not be denied the franchise. Their protests led to arrests on such

charges as “blocking traffic and unlawful assemblage”*’ and

“displaying propagandist banners without a police permit.”* In

addition, the suffragists ignited symbolic (but illegal) “watchfires for

freedom” outside the White House,” and at least one activist

actually set fire to the White House lawn.” Some suffragists,

including Susan B. Anthony, were arrested and convicted of

attempting to register to vote, in violation of the Act of May 3ist,

which criminalized knowingly voting without having the right to vote.

See United States v. Anthony, 24 F. Cas. 829 (C.C.N.D.N.Y. 1873).

None of these acts of civil disobedience, were they committed

today, would constitute a predicate act under RICO.

% See Eleanor Flexner, Century of Struggle 149, 153 (1975).

*7 Woman Arrests Suffrage Pickets, N.Y. Times, June 23, 1917, at 9.

3% = Seize 12 Militants Near White House, N.Y. Times, June 26, 1917, at

13.

% Linda G. Ford, Jron-Jawed Angels 236 (1991).

“© Id. at 238. Setting such fires would not constitute arson. See Model

Penal Code § 220.1 (1962): A person is guilty of arson ... if he starts

a fire ... with the purpose of:

(a) destroying a building or occupied structure of another; or

(b) destroying or damaging any property, whether his own or

another’s, to collect insurance for such loss ....

22

3. Sit-Ins And The Civil Rights Movement

Defendants’ attempt to analogize their activities to the civil

rights movement is grossly inapt. The civil rights activists of the

early 1960s did not aim to shut down targeted businesses. Rather,

they wanted to open up such businesses, through non-violent action,

to all customers who chose to patronize them. Those engaging in

lunch counter sit-ins, for example, did not use violence or threats of

force to compel restaurants to close; the Montgomery bus boycott was

not an extortionate attempt to deprive bus owners of patronage.

When owners lost business, it was not the result of threats or acts of

violence by civil rights activists, but of the owners’ voluntary refusal

to serve blacks in common with whites.

The sit-ins were calculated to be non-violent, and the activist

participants went to extraordinary lengths to accomplish that result.

The sit-ins at all-white lunch counters in the south began in February

1960 in Greensboro, South Carolina, and participation in this highly

visible and effective protest activity spread so rapidly that by October

of that year there had been sit-ins in 112 southern cities.“’ At first

unorganized, the sit-ins were soon being orchestrated by such

organizations as the Congress of Racial Equality and the Southern

Christian Leadership Conference (SCLC), the latter group led by Dr.

Martin Luther King, Jr., organizations that consistently advocated

non-violence.” The protestors themselves, despite intense provo-

‘| Juan Williams, Eyes on the Prize 140 (1987).

“2 The mass meeting that organized the Nashville sit-in movement included

a lecture on nonviolence. Taylor Branch, Parting the Waters: America

in the King Years 1954-63 274 (1988). Similarly, at the April 1960

conference for sit-in organizers sponsored by the SCLC and attended by

the Student Nonviolent Coordinating Committee, among others, the

keynote speaker advocated non-violent protest. Branch, supra, at 291.

23

cation by white segregationists,** followed the credo of non-

violence.“

Defendants’ attempt to characterize sit-ins as extortionate

reveals an extreme misreading of history. By far the majority of

violence associated with the entire civil rights movement was directed

at peaceful protestors, not committed by them.

4. The Gay Rights Movement

A measure of the frivolousness of respondents’ contention that

application of RICO to them would threaten the kinds of expressive

conduct in which movements for social change engage, and on which

the opportunities for orderly change in our society depend, is the fact

that RICO has not been and could not be successfully applied to one

of the principal civil rights movements today, the gay and lesbian

rights movement.

Gay rights activists have achieved their successes in the last

decade almost entirely through protected conduct — public education,

“A student who participated in the Nashville sit-ins described an attack

by white teenagers: “[They] stood in the aisles insulting us, blowing

smoke in our faces, grinding out cigarette butts on our backs and finally

pulling us off our stools and beating us. Those of us pulled off our

seats tried to regain them as soon as possible, but none of us fought

back in anger.” Williams, supra, at 133 (citation omitted).

““ Many of the decisions of this Court stressed the peacefulness — indeed

the politeness — of the sit-in protestors. See, e.g., Lombard v.

Louisiana, 373 U.S. 267, 268 (1963) (restaurant manager stated that

protestors “did not cause any disturbance, ... were orderly ....”);

Peterson v. City of Greenville, 373 U.S. 244, 247 (1963) (“[t}he

manager and the police conceded that the petitioners were clean, well

dressed, unoffensive in conduct, and that they sat quietly at the counter

....”); Barr v. City of Columbia, 378 U.S. 146, 150 (1964) (overturning

a breach-of-peace conviction on the ground that “petitioners were polite,

quiet, and peaceful from the time they entered the store to the time they

left”).

24 Be

and grass-roots political organizing to support (or oppose) political

candidates, legislation and referenda.** The principal national

organizations embodying the movement over the years, including the

Mattachine Society of the 1950s, the Gay Activist Alliance of the

1960s and 70s, the Campaign for Military Service, the National Gay

and Lesbian Task Force, and Lambda Legal Defense and Education

Fund, have advocated seeking change, and have sought change, with-

out violence or the other illegal actions in which Operation Rescue

and its co-conspirators have engaged.“ Indeed, there are no noted

prosecutions of gay rights activists for political protest; and, apart

from the famous evening of resistance outside the Stonewall Bar in

Greenwich Village, New York, where gay men resisted the efforts of

police to arrest patrons for alleged violations of morals laws (a

defensive engagement not subject to RICO that differed from

Operation Rescue’s repeated acts of violence and aggression as night

from day), it is difficult if not impossible to list cases testing whether

activity claimed to be political crossed the line into criminal

activity .*”

In sharp contrast to the activities of the Pro-Life Action

Network, gay rights activists have attempted to bring about the

changes they desire not through violence directed at those who

disagree with them or who have discriminated against them, or by

“See generally John D’Emilio, Sexual Politics, Sexual Communities

(1983); Jonathan Katz, Gay American History (1976); Martin

Duberman, Stonewall (1993); Adam, The Rise of a Gay and Lesbian

Movement (1987); Licata, The Homosexual Rights Movement in the

United States, in 6 J. of Homosexuality at 170-84 (1981); Rubenstein,

ed., Lesbians, Gay Men, and the Law (1993); of. Gay Students Serv. v.

Texas A & M Univ. , 737 F.2d 1317 (Sth Cir. 1984), cert. denied, 471

U.S. 1001 (1985).

7

*. &

25

making others fear for their safety, but by bringing lawsuits,

marching, and speaking out. Application of RICO as written to the

type of conduct alleged in petitioners’ complaint would have no

chilling effect whatsoever on the gay rights movement.

C. RICO Does Pose A Threat To Political

Terrorism, But Does Not Thereby Threaten

Either Protected Expression Or Civil

Disobedience

Unfortunately, illegal expressive acts have not always been

confined to the arena of non-violent civil disobedience. Too often in

our history, zealots, convinced of the absolute moral justice of their

cause, have resorted to physical violence and intimidation in an effort

to force others to relinquish important and valuable rights. Such

political terrorism deserves no toleration, for whatever expressive

content it may have is wholly overshadowed by the harm and

destruction it causes.

Despite their alleged intention to bring about social change

through First Amendment-protected activity, the defendants in this

case have engaged in political terrorism.“* Attempting to end

abortion through forceful, coercive, and violent methods far removed

from protected conduct or civil disobedience, defendants have, for

example: —

e threatened and used violence to force employees of clinics

to abandon their jobs and to force those employees, as

well as doctors, patients and prospective patients to

relinquish important and valuable economic rights and

property interests (JA 50-51, 55-57, 67);

“Moreover, in contrast to some who commit symbolic acts to call

attention to their cause and to gain influence, or who engage in activity

to exert pressure directly on public officials, defendants use terrorism

as a direct tool to impose their will on targeted groups.

26

- * conspired to steal and stolen fetal remains and

confidential patient and doctor information from

laboratories to force clinic doctors, patients and

prospective patients not to participate in abortions for fear

of disclosure of private, sensitive information (JA 58-62,

69-70; and

* organized and implemented so-called “blitzes” or

“rescues” in which scores of anti-abortion activists

forcibly break into health clinics, violently disrupt clinic

business, vandalize clinic property, and threaten the

safety and well-being of all clinic affiliates (JA 55-57, 66-

70). See also JA 9S, 118-97.

These criminal acts have been devised and carefully

orchestrated by an interstate network of lawbreaking anti-abortion

groups associated in the Pro-Life Action Network, the goal of which

is to shut down abortion-providing clinics by whatever means

necessary.” Defendants have demonstrated their commitment to

unlawful means by aiding and abetting others to shut down clinics by

a combination of blockades, sieges, vandalism and the creation of a

“ Defendants, and others, have by no means limited their anti-abortion

violence and intimidation to the specific acts at issue in this case. In

addition to scores of lawsuits brought against Operation Rescue across

the country over the past five years, current lawsuits include New York

State NOW v. Terry, 1993 U.S. App. LEXIS 16355, (2d Cir. July 2,

1993) (per curium) (reinstating prior opinion, 961 F.2d 390 (2d Cir.

1991), in light of Bray v. Alexandria Woman's Health Clinic, _U.S.

___, 113 S. Ct. 753 (1993)); Pro Choice Network v. Walker, 994 F.2d

989 (2d Cir. 1993); Town of West Hartford v. Operation Rescue, 99}

F.2d 1039 (2d Cir. 1993), petition for cert. filed, US.LW.

(U.S. July 19, 1993) (No. 93-___); NOW v. Operation Rescue, 816 F.

Supp. 729 (D.D.C. 1993), appeal pending.

27

physically threatening and intimidating atmosphere, and by directly

undertaking those activities themselves.”

RICO is an appropriate and constitutional response to such

highly organized and widespread criminal activity. Far from

threatening the First Amendment or our tradition of civil dis-

obedience, its application to circumstances like those here promises

to help put a stop to the intolerance of violent, self-righteous zealots

bent on subverting the rule of law.

CONCLUSION

The statutory text does not include the economic motive

element that the Seventh Circuit imposed to justify its dismissal of

plaintiffs’ RICO claim, and the wise policy of construing statutes in

order to avoid constitutional doubt does not require implying any such

element. If an economic motive were required, it is surely satisfied

by defendants’ intentional infliction of economic harm on petitioners.

Concern for free speech and assembly rights, and even for the right

to engage in traditional acts of civil disobedience, does not warrant

immunizing defendants’ widespread, organized criminal activity from

*” See also Northeast Women's Center, Inc. v. McMonagle, 670 F. Supp.

1300 (E.D. Pa. 1987), aff'd in pertinent part, 868 F.2d 1342 (3d Cir.),

cert. denied, 493 U.S. 901 (1989), in which the plaintiff, a women's

health center offering abortion services, proved at trie] that, at various

times over almost a two-year period, the defendants not only trespassed

and blockaded the health center, they (1) knocked down and injured

clinic employees, (2) surrounded and pounded on the windows of

employees’ cars, and (3) pushed, shoved, and tugged on patients who

attempted to enter the health center.

28

RICO; those who do not commit or agree to commit serious crimes

cannot be found liable under RICO. Accordingly, the judgment of

the Court of Appeals should be vacated, and the case remanded for

trial.

New York, New York

August 13, 1993

Respectfully submitted,

ae a

f Sf /) / ve

Pon *s DL thy

Davip I. Go_p r, Ae

Counsel of Record

CHARLES S. SIMS

HARRY W. LIPMAN

PROSKAUER ROSE GOETZ

& MENDELSOHN

1585 Broadway

New York, New York 10036

(212) 969-3000

DEBORAH A. ELLIS

BURT NEUBORNE

NOW LEGAL DEFENSE

AND EDUCATION FUND

99 Hudson Street

New York, New York 10013

(212) 925-6635

Attorneys for Amici Curiae

APPENDIX

‘a

APPENDIX

STATEMENTS OF INTEREST

OF

AMICI CURIAE

The NOW Legal Defense and Education Fund (NOW LDEF) is a

leading national non-profit civil rights organization that performs a

broad range of legal and educational services in support of women’s

efforts to eliminate sex-based discrimination and to secure equal

rights. NOW LDEF was founded as an independent organization in

1970 by leaders of the National Organization for Women. A major

goal of NOW LDEF’s work is to secure reproductive rights and

specifically to ensure that women have access to clinics. To this end,

NOW LDEF has litigated, both directly and as amicus, numerous

cases against Operation Rescue, including Bray v. Alexandria

Women’s Health Clinic, _ U.S. ____, 113 S.Ct. 753 (1993), which

was argued by the legal director of NOW LDEF.

The American Humanist Association (AHA) is a national non-profit

educational-lifestance organization founded in 1941. With more than

5,000 members across all 50 states, the AHA supports freedom of

choice for all women with regard to reproductive matters and opposes

all efforts to reduce accessibility to reproductive health services.

The American Jewish Committee (AJC) is a national membership

organization, founded in 1906 to protect the civil and religious righis

of Jews. AJC-has always believed that the best way to accomplish

this goal is to help preserve the constitutional rights of all Americans.

AJC strongly supports a woman’s constitutional right to reproductive

freedom. AJC believes that access to abortion services is an integral

component of this fundamental right and must be secured for all

American women. While AJC supports the First Amendment rights

of all Americans, it deplores the criminal interference with a woman’s

ability to exercise her constitutional right to choose.

2a

American Medical Women’s Association, Inc. (AMWA) is a non-

profit organization of 13,000 women physicians and medical students.

One of AMWA’s primary missions is to promote quality health care

for women. AMWA strongly supports laws which protect the right

of the pregnant patient, in consultation with her physician, to make

a personal, medically-informed decision whether or not to continue

a pregnancy.

Americans for Religious Liberty (ARL), founded in 1981, is a

nationwide non-profit public interest educational organizaion of over

9,000 members and supporters. ARL is dedicated to defending

church-state separation and religious liberty, which includes the

fundamental right of individual women to freedom of conscience in

dealing with problem or unintended pregnancies, free of government

or private interference. ARL has appeared before this Court -in

several religious liberty cases, most recently in Lee v. Weisman, __

U.S.___, 112 S. Ct. 2649 (1992).

Founded in 1974, the Asian American Legal Defense and

Education Fund (AALDEF) is a civil rights organization that

addresses critical problems in the Asian American community through

litigation, advocacy, and community education. Its current program

includes voting rights, immigrant rights, labor and employment

rights. AALDEF represents victims of anti-Asian violence and seeks

redress for Japanese Americans who were interned in U.S. camps

during World War II. AALDEF supports the right of women to

choose whether to have an abortion and opposes the violent acts of

anti-abortion groups that prevent women from exercising that right.

B’nai B’rith Women is an organization of 100,000 Jewish women in

the United States and Canada. It is strongly committed to helping

women improve the quality of life for themselves, their families and

society. In line with this goal, B’nai B’rith Women has worked for

more than 20 years to assure a woman’s right to choose in matters of

reproductive rights. B’nai B’rith Women believes that anti-abortion

violence is pointless, destructive behavior, and B’nai B’rith Women

3a

has pressed for stiff penalties to be imposed on perpetrators of these

crimes.

The Chicago Abortion Fund (CAF) is a non-profit agency founded

in 1986 to lower the economic barriers to reproductive freedom.

CAF’s primary purpose is to make safe, legal abortions accessible to

economically disadvantaged women by providing referrals and

financial assistance to poor women in the Chicago area who seek

abortion services; compiling statistics to document the extent of the

need for financial assistant for abortion services; and engaging in

activities to heighten public awareness of the problems faced by poor

women who wish to terminate an unwanted pregnancy. CAF is

acutely aware of the special problems low-income women face when

they seek access to safe and affordable abortion services. Current and

potential CAF clients suffer economic harm by the campaign of illegal

anti-abortion violence carried out by the defendants in this case.

Founded in 1987, the Feminist Majority Foundation is a non-profit

national organization with offices in Arlington, Virginia and Los

Angeles, California. The Feminist Majority Foundation, which runs

the largest clinic defense project in the nation, has witnessed first-

hand the violence of anti-abortion extremists directed against clinics,

health care workers, and women. Anti-abortion extremists are

conspiring in an organized way to break the law nationwide and close

established, legal businesses. RICO should provide a federal remedy

for ending this reign of terror.

Lambda Legal Defense and Education Fund (Lambda) is a national

public interest law organization that advocates for the rights of

lesbians and gay men through impact litigation and education. The

constitutional questions implicated in the struggle of women to control

their bodies are similar to those faced by lesbians and gay men who

seek to assure the right of individuals to engage in intimate

associations without government interference. Lambda is specifically

interested in the issues raised by this case because: (1) the application

of RICO to a concerted pattern of violence directed at women who

4a

use health clinics is of importance to lesbians and gay men, who have

themselves been victims of campaigns of violence; and (2) at the same

time, inasmuch as the full civil rights of lesbians and gay men have

not yet been recog; ed, Lambda has a vital interest in assuring that

the law protects legitimate protest while curbing violence.

ae Methodist Federation for Social Action (MFSA) is a

inembership organization founded in 1907. MFSA’s members are

mostly United Methodist church members and leaders from across the

entire United Methodist Church. In the course of a year, MFSA

provides educational material and moral guidance and support to some

5,000 United Methodist activists and persons of conscience. Among

MFSA’s chief concerns is human rights, prominent among which are

the reproductive rights of women. MFSA’s interest in this case arises

out of its belief that it is a human right of a woman to have available,

and, if she so chooses, to use abortion facilities that are affordable,

accessible and medically safe.

Founded in 1969, the National Abortion Rights Action League

(NARAL) is the largest national organization working primarily to

keep abortion safe, legal and accessible for all women. NARAL has

39 state affiliates and nearly 800,000 members nationwide.

NARAL’s' mission is "[t]o develop and sustain a constituency that

uses the political process to guarantee every woman the right to make

personal decisions regarding the full range of reproductive choices,

including preventing unintended pregnancy, bearing healthy children,

and choosing legal abortion." NARAL works to elect pro-choice

Officials to all levels of government, and to protect the right to choose

in the legislature, the courts, and at the clinics.

The National Black Women’s Health Project (NBWHP) is a self-

help, health education and advocacy organization which works to

improve the health status and quality of life for African- American

women and their families. It consists of 150 developing and

established chapters in 25 states serving a broad constituency of

approximately 2,000 members. The NBWHP is deeply concerned

5a

about barriers that impede or prevent access to quality health services,

including medically safe abortion services. The already poor health

status of low-income African American women, due in part to lack

of access to health care, is further exacerbated by the hostility,

intimidation, and harm caused by clinic blockades. The NBWHP

joins this brief to voice its opposition to the violent and harmful

actions and tactics of Operation Rescue which prevent African

American women from exercising their rights.

The National Federation of Temple Sisterhoods, (NFTS) including

over 100,000 women of Reform Judaism in 600 local groups

nationwide deeply committed to the social justice teachings of the

prophets, serves Jewish and humanitarian causes. Since the 1960s the

women of Reform Judaism have adopted resolutions in support of

civil and social rights for all persons, anti-poverty programs and

legislation, and the right to choose legal abortions. In 1987, the

NFTS affirmed resolutions urging action to reduce teenage pregnancy

and break the cycle of poverty. Moreover, the delegates at the recent

1991 Biennial Assembly called for support of legislation providing

universal access to health care, including all aspects of reproductive

health care, regardless of age, gender and economic status.

The National Women’s Law Center (Center) is a non-profit legal

advocacy organization dedicated to the advancement and protection of

women’s rights. Since its inception in 1972, the Center has fought

to develop and protect women’s rights in a variety of areas, including

reproductive freedom, health care, employment, education, family

support and income security. Protecting women’s access to

reproductive rights and health care services is an important

component of the Center’s mission to advance the status of women

through the law.

The Northwest Women’s Law Center (Law Center) is a non-profit

public interest legal organization in Seattle, Washington working to

advance the legal rights of women through litigation, education and

legislative advocacy. The Law Center has been serving women

6a

throughout Washington since 1978, and has recently expanded its

litigation program to serve women throughout the Northwest. The

Law Center has done extensive work in the area of reproductive

rights, particularly on the issue of clinic access. The Law Center was

instrumental in the passage of a Washington state Clinic Access Bill

and also litigated against Operation Rescue to enjoin their blockades

against women’s health clinics in Washington.

The Union of American Hebrew Congregations (UAHC) is the

congregational arm of Reform Judaism representing over 850 Reform

Jewish synagogues throughout the United States and Canada with a

membership of one and one-half million Jews. The UAHC has long

been committed to religious freedom, First Amendment rights, the

right to privacy, and the expansion of women’s rights, and has

engaged in extensive educational work regarding those rights.

The Unitarian Universalist Association is a religious association of

more than 1,000 congregations in the United States, Canada and

elsewhere. Through its democratic process, the Association adopts

resolutions consistent with its fundamental principles and purposes.

In particular, the Association has adopted numerous resolutions

affirming the principles of separation of church and state and of

personal religious freedom. Most relevant to the case at bar are the

Association’s resolutions (a) affirming the right to choose abortion as

a legitimate aspect of the right to privacy, and (b) promoting freedom

of choice in reproductive matters including unrestricted access to

counseling and abortion services, regardless of age, class, race or

situation. without curtailing peaceful protest.

The United Synagogue of Conservative Judaism, founded in 1913,

an association of Conservative congregations in North America, today

consists of over 800 affiliated synagogues and over one and one-half

million members. The objectives of the United Synagogue are the

advancement of the cause of Judaism in America and the maintenance

of Jewish tradition in its historic continuity.

Ta

Voters for Choice was founded by Gloria Steinem and Planned

Parenthood Board Members in 1979, and is the only national

organization devoted solely to electing pro-choice candidates to office.

Voters for Choice has helped elect nearly 185 Members to Congress,

and has also many governors and legislators. Voters for Choice

provides technical assistance, strategic funding, and 13 years

experience helping to elect those candidates who will be the pro-

choice voices and votes in the halls of Congress and in the state

legislatures. As the largest independent pro-choice political

committee in the country, Voters for Choice is committed to electing

leaders and to supporting efforts which will uphold reproductive

rights for all women.

Women Employed is a national organization of working women,

based in Chicago, with a membership of 2,000. Since 1973, the

organization has assisted thousands of working women with problems

of sex discrimination. Women Employed works to empower women

to improve their economic status and to remove barriers to economic

equity through advocacy, direct service and public education.

Women Employed strongly believes that any limitation on women’s

reproductive rights will have a profoundly negative impact on

woman’s opportunities to achieve economic equity.

The Women’s Equal Rights Legal Defense and Education Fund

(WERLDEF) is a nonprofit corporation organized to ensure that

women are treated equally under the law. It achieves its goal by

educating women about their lega! rights and by assisting them to

vindicate those rights by providing access to the courts.

The Women’s Law Center is an advocacy organization whose

membership consists of attorneys and judges in Maryland. In

existence since 1971, the goal of the Women’s Law Center is to

promote the legal rights of women through litigation, legislation and

education. The Women’s Law Center has worked to protect

reproductive rights for all women, including participation as amicus

curiae in cases dealing with that issue. The Women’s Law Center

8a

believes the issues involved in NOW v. Joseph Scheidler et al. are

critical to the legal rights of women.

The Women’s Law Project (WLP) is a non-profit, feminist legal

advocacy organization located in Philadelphia. Founded in 1974,

WLP works to abolish discrimination and to advance the legal and

economic status of women through litigation, public education and

individual counseling. The Women’s Law Project believes that the

right to reproductive freedom is a fundamental component of

women’s ability to control their lives and live as free and equal

citizens. The WLP has challenged a wide variety of state statutes

designed to restrict abortion rights, including the Pennsylvania statutes

in Planned Parenthood v. Casey, __ U.S. ___, 112 S. Ct. 2791

(1992). The WLP has also worked vigorously to stop anti-choice

harassment of women seeking abortions and of abortion providers in

Pennsylvania, representing amici curiae in Northeast Women’s Center

v. fcMonagle, 868 F.2d 1342 (3d Cir. 1989), cert. denied, 493 U.S.

901 (1989), a case involving legal issues identical to those in this

case. WLP believes RICO should be used to combat the ever-

increasing levels of violence and harassment against women seeking

abortions.

The Women’s Legal Defense Fund (WLDF), a non-profit national

advocacy organization, works at the federal and state levels to

establish policies that offer equal opportunity to women, respond to

women’s basic economic and health needs, and enable women and

men to participate fully in family and community life. Because

WLDF believes that reproductive freedom for all women is

fundamental to the achievement of these goals, it files amicus curiae

briefs in major reproductive rights and health cases, advocates for

reproductive rights and health care for women before Congress, and

provides policy opinions about reproductive health policies to federal

and state legislators.

The YWCA of the U.S.A. is a women’s membership organization.

Founded in 1858, it is committed to the empowerment of women and

9a

to the elimination of racism. Currently, it serves over two million

girls, women and their families through 400 YWCAs in 4,000

locations throughout the country. Because the YWCA has historically

been concerned about women’s health and the availability of care to

women of all socio-economic backgrounds, it advocates that no

woman should be deprived of reproductive choice if she needs it and

it is not contrary to her personal beliefs. As we believe that legal

restrictions and the prohibition of abortions affect primarily poor

women, the YWCA of the U.S.A. supports the position taken in this

amicus curiae brief.