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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 249

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1130%3A21. Public record. Not legal advice.