The National Catholic Review
The Supreme Court and Public Protest

The United States Supreme Court issued its decision in Scheidler v. National Organization for Women, Inc. on Feb. 26. The question before the court was whether the massive pro-life abortion protest demonstrations of the 1980’s and 90’s constituted acts of extortion under the federal extortion statute, the Hobbs Act. If so, then the jury’s verdict finding that they did this in 21 instances would have been sufficient to sustain its verdict that the pro-life defendants had thereby committed acts of racketeering under the federal Racketeering and Corrupt Organizations Act. The Supreme Court, however, held that even though the demonstrations interfered with and prevented the receiving and providing of abortion services, the pro-life demonstrations did not constitute acts of extortion. The decision put an end to this lawsuit, which had gone on for 17 years.

NOW’s president, Kim Gandy, condemned the decision in a press release on the day the decision was issued, stating that it made a banner day for criminal kingpins. Tony Soprano would love this decisionit says you can shut down someone’s business as long as you don’t take possession of their property. For NOW and other pro-abortion advocates, the importance of the case was that it was an action to prevent and penalize the coordinated anti-abortion efforts of aggressive groups such as Operation Rescue and the Pro Life Action League and their leaders, such as Joseph Scheidler. The significance of the case, however, reaches far beyond those concerns. At risk was the future of public protest and demonstrationsirrespective of the cause or purposeand whether such activities should be criminalized and made subject to draconian punishments under racketeering laws: 20 years to life imprisonment with no parole in a criminal action, treble damages and attorneys fees in a private civil suit.

The protests or demonstrations in question took place, for the most part, prior to the enactment of the 1994 federal Freedom of Access to Clinic Entrances law, which prohibits interference with access to providers of abortion services. The anti-abortion events in question typically involved hundreds, sometimes thousands of demonstrators, who marched, stood and obstructed entrances to abortion clinics. Speeches were given, songs sung and prayers said, while the demonstrators stood, knelt, crawled, sat or lay on the ground in front of abortion clinics. The demonstrators were generally peaceful, and those who participated in protests sponsored by Operation Rescue had to sign a pledge to demonstrate peacefully and nonviolently. NOW, however, argued that the amassing of the demonstrators and the blockades were in fact acts of violence, intimidating and creating fear in women who were seeking abortions and in the people who worked in the clinics.

Confronted with pleas and prayers not to abort their child, women approaching the abortion clinic to have a scheduled abortion decided not to go through the crowd because they were afraid of being injured, were embarrassed or had a change of heart, or they decided to proceed. If they proceeded, they had to make their way through the demonstrators, often with some difficulty, to enter the clinic itself. The clinic’s business of providing abortion and other medical services was consequently interfered with, and appointments were canceled or simply not kept. Often the clinics chose to close voluntarily during the demonstration or for the entire day, canceling and rescheduling all appointments. The police frequently had to remove the demonstrators bodily, lifting them off the ground and placing them in buses. They charged them with trespassing, unlawful assembly, demonstrating without a permit or disobeying a lawful police order to disperse.

The conflict was characterized as a war between a woman’s right to choose and a child’s right to life. Polemics abounded. Abortion protestors were called mafia thugs, the clinics human slaughterhouses, their physicians and staff murderers. And, of course, there were the well-publicized occasional bombings, shootings, fires, acts of vandalism, assaults and batteries committed against abortion providers, as well as the less well-publicized horrors of abortion itself, including the pain and suffering inflicted on the pre-born child, the piles of aborted baby bodies in garbage Dumpsters, the frequent deaths and injuries of women by the abortion, the babies who survived the abortion and were then left to die from starvation and lack of care. The conflict was and remains both moral and political, deeply dividing the country on the most basic of issues: the sanctity and nature of human life, a woman’s constitutionally protected privacy rights (together with her right to terminate a pregnancy) and the pre-born child’s right to life.

NOW’s lawsuit was instituted and pursued not to resolve these issues, but to stop and penalize the aggressive anti-abortion groups and their leaders who sponsored the clinic blockades. It involved two classes of plaintiffs. The first consisted of women who sought to have an abortion, and they were represented by NOW; the second, abortion clinics. Both charged that the pro-life abortion protestors extorted property from them. The women claimed that the pro-life protestors interfered with their right to have an abortion and keep their scheduled appointmentsa legitimate property right. The clinics asserted that the pro-life demonstrators interfered with their right to engage in their business of providing abortion services, sometimes causing them to shut down. They both argued that the protestors’ use of blockades, disruptive conduct, trespasses, occasional acts of violence and the threats that the protests would continue until they ceased providing abortions were the unlawful means used to extort them into giving up, not exercising, their lawful property rights and interests. Both classes of plaintiffs argued that the demonstrators effectively deprived them of their property rights to have or perform abortions, taking away their right to engage in legitimate business activities during the demonstrations. They also claimed that the demonstrators’ wrongful wresting of control from them for that period of time constituted obtaining property from them by unlawful means.

During the argument before the Supreme Court, the justices questioned how that interpretation of the extortion statute would affect other types of public demonstrations and protests. Under the plaintiffs’ theory of extortion, many traditional and long-accepted acts of public demonstration and protest would have been criminalized as constituting acts of extortion. If committed by the same people more than once, moreover, they would also be acts of racketeering. The historic sit-ins, boycotts and demonstrations of the civil rights movement are clear examples. If students or parents conducted sit-ins in a dean’s office to protest a school policy or decision, that would be an act of extortion, because it wrongfully interferes with and prevents the school’s conduct of business. Similarly, if people stood in front of a truck about to dump toxic wastes into a landfill or lake, and it had a permit to do so, they too would have interfered with and prevented the conducting of lawful business. They would thus have committed an act of extortion. Likewise, if parents protested outside a drug paraphernalia or pornography store near a neighborhood grammar school, interfering with access, the parents would have committed extortion by interfering with and preventing the conduct of those businesses.

The same conclusion would follow about the demonstrations and protests that occurred in connection with the reform of our labor lawsincluding child labor lawsthe civil rights movement, the suffrage and women’s rights movements, antiwar protests, environmental issues and the demonstrations against international financial institutions and policies. Indeed, virtually every demonstration or protest of any significant size interferes with the normal conduct of business, often intentionally, and if some unlawful means or act occurs, such as a trespass, disorderly conduct or blocking of traffic, then the crime of extortion has been committedaccording to the plaintiffs and, surprisingly, also the U.S. Department of Justice.

Most people would find such a legal interpretation wrong and troublesome. Interfering with or temporarily delaying someone from doing something simply is not the same as obtaining or taking away a person’s right to engage in that act. There is a real difference. If your right to do something is interfered with, you still have that right and it has not been taken away from you. You still have that right and are able to exercise it, though at another time. The question of whether such an interference or delay and the loss of a time-specific opportunity to do something constitute criminal extortion is what the court had to decide, and its decision would have momentous consequences for all future public demonstrations and protests, irrespective of the cause or objective of the demonstrators.

The court found that the interpretation of the Hobbs Act being argued by both the plaintiffs and the government was too radical a departure from historical precedent, and therefore contrary to the legislative history of the act: Whatever the outer boundaries may be, the effort to characterize the [pro-life] petitioners’ actions here as obtaining of property from’ respondents is well beyond them. Such a result would be an unwarranted expansion of the meaning of that phrase.

The court found, moreover, that in these demonstrations no property was actually obtained by the protestors:

 

There is no dispute in these cases that petitioners interfered with, disrupted, and in some instances completely deprived respondents of their ability to exercise their property rights. Likewise, petitioners’ counsel readily acknowledged at oral argument that aspects of his clients’ conduct were criminal [that acts of trespass had occurred]. But even when their acts of interference and disruption achieved their ultimate goal of shutting down a clinic that performed abortions, such acts did not constitute extortion because petitioners did not obtain respondents’ property. Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received something of value from respondents that they could exercise, transfer, or sell. To conclude that such actions constituted extortion would effectively discard the statutory requirement that property must be obtained from another, replacing it instead with the notion that merely interfering with or depriving someone of property is sufficient to constitute extortion.

 

The court, however, characterized the conduct of the pro-life demonstratorsconduct involving threats and acts of force and violence to dictate and restrict the actions and decisions of othersas being acts of coercion, but acts of coercion were not encompassed in the Hobbs Act. Congress, in fact, had rejected including coercion in the list of the unlawful means required to be used to commit extortion. Some states, like New York, have both a criminal coercion statute and a criminal extortion statute. The question of whether the pro-life demonstrators violated New York State’s criminal coercion statute in any of the pro-life demonstrations that took place in that state was never part of the case and, as a consequence, remains unanswered. The First Amendment, however, provides broad constitutional protection for peaceful assembly and public demonstrations. If such events are meant to bring about change, to stop some lawful activity for moral, environmental or political reasons, they would be inherently coercive. Public opinion and public pressure are coercive in nature, intending to bring about a change that the target of the demonstration would not otherwise implement. For example, a group of women, led by Alice Paul, picketed the White House in 1917 and intentionally blocked traffic to protest the fact that women did not have the right to vote. Ninety-six of the protestors were arrested. Two years later Congress passed the 19th Amendment, which gave them this right. The amendment was ratified by the states the next year.

As a society, we have not only tolerated such public-protest activities, but have also benefited immensely from them. Peaceful protest activities and demonstrations should not be criminalized. If crimes like larceny or destruction of property are committed by demonstrators or protestors, it should be sufficient to punish the particular criminal act. As a result of the decision in Scheidler v. NOW, many types of disruptive civil rights demonstrations (including sit-ins and similar tactics by racial, gender and antiwar protests) remain, as before, liable to ordinary civil remedies and criminal penalties, but not to the extraordinary punishments inflicted by the Racketeering and Corrupt Organizations Act. The practical difference for protest movements is enormous. The threat of ruinous RICO sanctions under existing federal and state law has been removed

Richard P. Caro specializes in trials and appeals in federal courts. He was one of the attorneys who represented the Scheidler defendants in the trial court and in the U.S. Court of Appeals for the Seventh Circuit.