High Court and RICO
THIS week's unanimous United States Supreme Court ruling allowing the application of an anti-racketeering statute to anti-abortion protests suggests to us that Congress should review the statute to determine if it needs to be narrowed.
The 1970 law, known by its acronym RICO, initially was designed to fight organized crime through inflicting heavy economic losses -
triple damages - on those who run ``enterprises'' engaged in a ``pattern'' of illegal activities. The Supreme Court has repeatedly broadened the law's application.
This week's decision clears the way for the National Organization for Women to proceed with a lawsuit against Operation Rescue and other groups for allegedly conspiring to shut down abortion clinics through often-violent intimidation.
From a legal standpoint, the high court made the right call: As written, the law is not limited to enterprises motivated by the prospect of economic gain, despite lower-court interpretations of the case.
But given the litigants and the highly charged subject, it is not hard to see situations in which RICO suits could cross the line from stifling criminal activity to chilling free speech. The prospect of a suit or of a lengthy, expensive appeal on First Amendment grounds can go beyond discouraging illegal behavior to discouraging any protest at all. Interestingly, if NOW succeeds in expanding its suit on behalf of two clinics to a class-action suit, it would have an impact nationwide.
No one should condone bombed clinics or murdered physicians as even a ``regrettable but understandable'' means of political expression in a democracy. Even less-violent forms of intimidation are distasteful to those of us who hold that instilling fear is a counterproductive strategy; yet lesser forms of intimidation are often-used protest tactics, whether outside of an abortion clinic or in a labor dispute outside a factory or mine. When intimidation shifts from the uncomfortable to the illegal, non-RICO recourse is available.
Justice David Souter wrote in his concurring opinion, ``I think it prudent to notice that RICO actions could deter protected advocacy and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake.''
One proposal that merits consideration: applying RICO only after an ``enterprise'' has been convicted of a crime stemming from alleged racketeering.