Supreme Court allows RICO suit against protesters, raises free speech concerns

WASHINGTON, D.C. — The U.S. Supreme Court cleared the way in late January for racketeering sanctions against anti-abortion protesters, but the unanimous ruling raises questions about whether similar suits could be used to chill protected speech.

The high court decided the narrow question of whether the Racketeer Influenced and Corrupt Organizations (RICO) statute required proof of an economic motive.

The National Organization for Women and two health care centers that provide abortions brought the suit against a coalition of anti- abortion groups. It alleged that the anti- abortion groups violated the federal racketeering law by using extortion to force the clinics to stop operating.

In an opinion by Chief Justice William Rehnquist, the Court held that the statute did not require an economic motive for participating in illegal activity.

The federal racketeering statute, part of the Organized Crime Control Act of 1970, allows treble damages and jail time of up to 20 years for any person who commits two or more “acts of racketeering.” Among the acts are extortion, which was the crime alleged in this case; dealing in obscene matter; arson; robbery and murder.

The Court noted arguments that application of the RICO statute could chill expression protected by the First Amendment. The Court refused to address that question, however, stating that the case presented only the issue of economic motive. The constitutional arguments focused on the types of activities potentially covered by the statute rather than the whether the statute required an economic motive.

Justice David Souter, in a concurrence joined by Justice Anthony Kennedy, emphasized that the ruling does not bar First Amendment challenges to the use of the racketeering law and explained why he thought this was an inappropriate case for addressing the First Amendment concerns. Souter contended that even if the Court had required an economic motive, it would not have protected free- speech concerns effectively.

First, requiring an economic motive could prevent the law from reaching groups that commit violent acts not protected by the First Amendment. Second, he wrote, groups engaged in “vigorous but fully protected expression” might still be subject to RICO suits if fund-raising activities were used to satisfy the economic-motive requirement.

Finally, Souter said that the “legitimate free speech claims” may be addressed in suits as they arise. Even where there is a valid RICO violation, Souter suggested, the First Amendment may limit the punishment for protected expression.

(National Organization for Women, Inc. v. Scheidler; Plaintiff’s Counsel: Fay Clayton, Chicago)

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