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Jewish World Review Dec. 10, 2002 / 5 Teves, 5763

Jonathan Turley

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Pro-Choice at Expense of Free Speech; NOW case against abortion protester may backfire | In 1986, two alleged racketeers were hauled into federal courts in New York and Chicago. One was John Gotti, the head of the murderous Gambino crime family. The other was Joseph Scheidler, a former Benedictine monk and pro-life protester. Only one was found liable as a racketeer: the former monk.

Scheidler was found guilty under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act, a law designed to combat organized crime. His case, Scheidler vs. the National Organization for Women, will be heard Wednesday before the U.S. Supreme Court in what may be the most important case of its term.

It is a case that could radically alter the exercise of free speech in this country in a way that the framers could never have anticipated. The case stems from protests that occurred more than 16 years ago. Scheidler, who marched at Selma, Ala., with Martin Luther King Jr., helped organize groups in nonviolent demonstrations and sit-ins modeled on the civil rights movement.

In 1986, Scheidler was arrested after he and three ministers walked into a clinic to announce their intention to demonstrate the following day. He was later found guilty of second-degree trespass, though the judge reportedly commended him for his commitment to nonviolence.

Pro-life and pro-choice advocates appear to have one thing in common: They demonize their opponents in order to justify any means to combat their influence.

NOW, and other national pro-choice organizations, hit Scheidler and the Pro-Life Action Network with an array of federal civil charges under the RICO law as well as bizarre antitrust allegations. A federal judge in Chicago dismissed their claims, but the U.S. Supreme Court in 1994 reinstated the case. At the time, however, some justices expressed concern about the implications of NOW's use of RICO on the exercise of free speech.

Since trespass is not a crime that can support a RICO charge, NOW relied on a novel definition of extortion to cover protests. Under common law, extortion is defined as "obtaining" property by threats or violence. NOW argued, and the federal court agreed, that it could stretch this definition to include protests where clinic owners and patients were deterred or harassed in their use of clinics. It worked; Scheidler is now appealing the order to pay $258,000 in treble damages.

Although this lawsuit alleged that pro-lifers used dangerous and reckless means to advance their goals, NOW can be accused of the same lack of judgment. If successful, NOW would create a tool that could be used against any number of public interest groups.

Under NOW's sweeping definition, King could have been charged as a racketeer in some protests. Storeowners in Selma and Montgomery, for example, could have claimed that sit-ins, boycotts and protests deprived them of business by intimidating customers and employees. Even with King's commitment to nonviolence, some protests resulted in sporadic violent clashes, often caused by the police.

For this reason, public interest groups have vehemently opposed NOW's effort before the Supreme Court. Groups like People for the Ethical Treatment of Animals and Greenpeace could easily fit NOW's new definition of racketeers.

If the court rules in NOW's favor, it could unleash a torrent of litigation against such groups by businesses and others.

None of this means that NOW was not right to pursue Scheidler or other protesters. To the contrary, there have been documented abuses of women seeking access to clinics. The First Amendment does not make protesters immune from basic criminal laws. Where protesters have trespassed, they should be prosecuted. Where physical intimidation is used, assault charges should be brought.

Ironically, though, the kind of unhinged individuals whom NOW most wants to deter are unlikely to be swayed by the use of civil RICO. It is legitimate protest groups that would be most affected by this new threat to free speech.

The framers could not have anticipated this threat when they sought to protect free speech from the government. By using a law designed to gut criminal organizations through treble damages, private groups could pose a far greater barrier to free speech. It is the ultimate weapon for the incautious to use against the overzealous.

With this case, NOW has assumed the role of a Captain Ahab on a blind pursuit of a whale named Scheidler. The danger is that NOW may find itself lashed to the side of this whale, descending into the abyss with the very object of its obsession.

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JWR contributor Jonathan Turley teaches constitutional law at George, Washington University. . Comment by clicking here.

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© 2002, Jonathan Turley