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The issue of how the federal anti-racketeering law may be used against militant abortion opponents has reached the federal appellate level in two courts. Either case could provide the opportunity for the courts to say whether free speech rights include the aggressive activities of abortion opponents, who have found themselves being treated like organized crime “families,” the original target of the anti-racketeering law known as RICO — the Racketeer Influenced and Corrupt Organizations Act. Protesters in other arenas, such as animal rights, could also be affected by the outcomes. The two cases were argued last month only two days apart. They differ greatly in many respects. But in both, defense attorneys are challenging the use of RICO by relying heavily on the First Amendment. Appellants also dispute the district courts’ interpretation of anti-abortion activities as extortion, which qualified them as crimes covered by RICO. One case was argued on Sept. 14 in the 7th U.S. Circuit Court of Appeals. In that case, the National Organization for Women and two abortion clinics had won $85,927 in a class action against the Pro-Life Action League and Operation Rescue on behalf of every woman in the country who has been deterred in her attempt to enter an abortion clinic. The case was the first to charge anti-abortionists with racketeering. It is based on the sit-ins, blockades and other tactics used by abortion opponents at clinics in the late 1980s and early 1990s. NOW Inc. v. Scheidler, No. 99-3076. Appellants in its western counterpart, which was argued Sept. 12 in the 9th Circuit, are 12 individuals, the American Coalition of Life Activists, and Advocates for Life Ministries, which operated a Web site listing the names, addresses, telephone numbers and other information on hundreds of doctors who performed abortions. Planned Parenthood and a group of doctors last year won $109 million, the largest judgment ever against anti-abortion groups, by applying RICO and the 1994 Freedom of Access to the Clinic Entrances statute, which, unlike RICO, allows punitive damages. P lanned Parenthood of Columbia Willamette v. American Coalition of Life Activists, No. 99-35320. Using RICO, juries in both cases awarded damages based on economic loss to the plaintiffs, specifically the bulletproof vests and other security measures that the clinics and doctors claimed they were forced to buy for self-defense. Some legal experts see the application of RICO in these cases as an inappropriate expansion of the anti-racketeering law. Many warn of a chilling effect, if not an outright threat, to all sorts of causes, including Greenpeace, animal rights, civil rights and anti-war protests. The trial judge in Scheidler remarked that Congress is the proper forum for complaints that RICO would have crushed the civil rights movement of the 1960s. It has already been used against other political crusaders, such as animal rights groups. “When RICO was passed, the ACLU and others expressed concern over the broad definition of predicate crimes,” says Operation Rescue attorney Walter M. Weber of the American Center for Law and Justice. Of Scheidler, he says, “The theory the plaintiffs went to the jury on is [that] whenever you stop someone from exercising their rights by getting in the way, you are committing extortion, the idea being that property includes everything of value, including abstract rights. So every unlawful protest activity is extortion, and if it happens more than once, it’s racketeering.” The U.S. Supreme Court already has taken up Scheidler once, when the district court dismissed the lawsuit in 1994 on the ground that RICO requires an economic motive. The court disagreed, but left unanswered the questions of First Amendment protection and the meaning of “extortion.” “A sit-in is not protected activity, but we’re claiming it’s not extortion,” Weber says. “Trespassing is not protected either, but it’s not extortion.” To Fay Clayton, lead counsel for NOW, what constitutes extortion in the 7th Circuit is clear: “When you use force or violence to [force others to] give up protected property rights, that’s extortion because it interferes with the right to do business.” Clayton, of Chicago’s Robinson Curley & Clayton, says that she does not consider the First Amendment to be the issue the appellants say it is. “We’re just concerned about unlawful acts,” she says. “The Supreme Court has made it very clear the First Amendment applies in RICO like everything else. The First Amendment is alive and well.” In the 9th Circuit, the free speech issue seems more pronounced. During last month’s arguments, the judges wondered aloud at what point speech becomes a threat. The Planned Parenthood case involves no allegations of physical confrontation, only the publication of the Web site lists and some “Wanted” posters distributed by the defendant groups. Defense attorney Christopher Ferrara of the American Catholic Lawyers Association argued that no explicit or immediate threats were used in any of the group’s materials. Although the Web site named doctors, it did not call for violent acts against them, he said. Furthermore, he said, the publishers were not responsible for the shootings and other violent acts that followed the publication. Three of the doctors listed on the site were subsequently killed. The Web site, called “The Nuremberg Files,” also listed car license-plate numbers of the doctors and the names of some of their spouses and children. Lines were drawn through the names of doctors who had been killed. The names of the injured were shaded in gray. In 1990, the 9th Circuit said that threats “should be considered in light of their entire factual context, including the surrounding events and the reaction of the listeners.” Maria T. Vullo, who argued the appeal for the plaintiffs, says the trial judge who issued an injunction against the defendants concluded they were not engaging in protected speech. Conspiring to commit illegal acts isn’t protected by the First Amendment, she noted. Vullo, a member of Paul, Weiss, Rifkind, Wharton & Garrison in New York, says her case has faced some of the same challenges as Scheidler: whether profit must be a motive under RICO, protected speech and the definition of extortion. Those issues, and the actions of the trial court, yielded about 30 arguments for the anti-abortion groups to offer to the 9th Circuit last month. As the first plaintiff to obtain a civil jury verdict under the clinic access statute, Planned Parenthood was able to obtain punitive damages and an injunction, on which the appellate courts are divided. The law bans the use of force or the threat of force against anyone seeking or performing an abortion. The statute, which applies only to anti-abortion activities, could replace RICO in such cases in the future. But Vullo says the anti-racketeering law was a natural fit. “It’s pretty easy,” she says, “to show that the anti-abortion activists are part of a criminal enterprise.”

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