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When is political protest a RICO violation?

Article Excerpt
On February 26, the U.S. Supreme Court decided Scheidler v. National Organization for Women (1) (NOW II), which began a decade ago as a civil RICO suit against several antiabortion protesters and organizations. The Court held that the federal Hobbs Act--which NOW used as the basis for its claim that the protesters had engaged in a "pattern of racketeering activity" against abortion clinics--required proof that the defendant actually sought to "obtain property," as the statute states, rather than merely sought to drive another party out of business. Because NOW II is one of those rare cases that has been to the Supreme Court twice, a full understanding of it requires some historical context.

The Court decided National Organization for Women v. Scheidler (2) (NOW I) in 1994. It held unanimously that the RICO statute could be applied to an organization--such as the protesters'--that was not motivated by an economic purpose. This decision caused a great outcry among antiabortion and other political action groups, who claimed that their ability to present their message would be squelched by the threat of RICO treble-damages lawsuits.

However, NOW I was nothing more than a straightforward reading of the RICO statute, which, on its face, contained no "economic purpose" limitation. Moreover, the Court simply reversed the dismissal of the lawsuit by the district court, allowing the litigation to go forward, without deciding whether the suit might ultimately infringe on the defendants' First Amendment interests.

In an article analyzing the Court's decision and agreeing with its unexceptional conclusion, I examined NOW's complaint with an eye to the forthcoming trial and round two significant problems. (3)

First, to establish a RICO violation, plaintiffs must prove a "pattern of racketeering activity." The plaintiffs in this case alleged a series of extortions in violation of the Hobbs Act and state law to meet the "pattern" requirement. The Hobbs Act, like most state extortion statutes, requires that the defendant be shown to have "obtain[ed] property" by "force, violence, or fear, or under color of official right." (4)

But the defendants here had plainly not sought to obtain the property of the abortion clinics. Rather, they were trying to drive the clinics out of business. This, in my view, was...

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