Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, February 2, 1994 TAG: 9402160002
SECTION: EDITORIAL PAGE: A7 EDITION: METRO
SOURCE: Cal Thomas
DATELINE: LENGTH: Medium
Key to the ruling is Chief Justice William Rehnquist's opinion that the federal Racketeer Influenced and Corrupt Organizations Act may be applied in ideologically motivated crimes, not just those motivated by economic concerns. And central to this opinion is the word ``crimes.'' Those who would use RICO against abortion protesters must, among other things, prove that a crime has been committed.
Proving that a crime has occurred because a protester has tried to dissuade a landlord from renting a building to an abortion provider by claiming that it could endanger the landlord's immortal soul is going to be difficult. Such protests ought to be considered free speech, a question the Supreme Court did not address but left open for future consideration.
Two justices issuing concurring opinions did focus on the issue. David Souter and Anthony Kennedy warned that ``RICO actions could deter protected [First Amendment] advocacy.'' They also cautioned lower courts ``applying RICO to bear in mind the First Amendment interests that could be at stake.''
One defendant in the lawsuit brought before the court is Monica Migliorino Miller. She was sued under RICO for ``providing burials for aborted babies, persuading landlords not to rent to abortionists and giving speeches at pro-life rallies.'' Do those pushing for unrestricted abortion on demand want to pursue this line of argument? It could come back to haunt them when they wish to protest.
In fact, had RICO been applied to demonstrators for and against any number of causes in the past, it could be argued that achieving their goals would have been more difficult, if not impossible. From civil rights to the Vietnam War, from sit-ins at nuclear power facilities to attempts by animal rights activists to persuade people not to buy fur coats, RICO would have had the ultimate chilling effect.
The chief counsel to the Senate Criminal Laws Committee, Robert Blakey, drafted the RICO measure nearly 25 years ago. Now a law professor at the University of Notre Dame, Blakey tells me it was never the intention of Congress to target any activity but organized crime. ``This law was intended for John Gotti and Charles Keating, not Gandhi or Martin Luther King Jr.,'' says Blakey.
According to him, Sens. Edward Kennedy and Gary Hart were particularly concerned that the legislation be written in a way that it could not be used against Vietnam War protesters who attempted to block the Pentagon or who took over the administration building at Columbia University. ``RICO was meant for the marketplace of commercial transactions, not the marketplace of ideas,'' says Blakey.
Taken to its extreme, the court's decision could jeopardize pastors who encourage members of their congregations to oppose abortion and those members subsequently participate in two or more peaceful blockades of abortion clinics. Two or more ``predicate acts'' constitute a ``pattern of racketeering,'' according to RICO. Pro-lifers who speak at, or who write literature for, pro-life conferences, where attendees later participate in two or more ``rescues'' at abortion clinics, might also be implicated as ``co-conspirators.'' And if a court finds that picketers, sidewalk counselors and persons leading boycotts against abortions have forced an abortion provider out of business through the ``wrongful use of ... fear,'' they might also be RICO-ed.
Congress could do with RICO what it did with civil rights legislation. It could clarify its intentions. Given the politics of abortion and the tendency of Congress to let the courts do its dirty work, it's not likely that Congress will act. But it should.
\ Los Angeles Times Syndicate
by CNB