- The Washington Times - Tuesday, April 23, 2002

The Supreme Court yesterday agreed to decide whether federal racketeering laws allowed huge fines against pro-life activists for staging protests that emulated tactics pioneered by civil-rights groups, unions and the anti-war movement.
On the case's third trip to the Supreme Court in 15 years, the justices were expected to resolve the fairness of a $258,000 triple-damages award that the Pro-Life Action League and Operation Rescue were ordered to pay to the Delaware and Summit Women's Health Organizations.
At issue now is whether the federal Racketeer Influenced and Corrupt Organization (RICO) statute may be applied to the Illinois abortion protesters using what their attorneys call time-tested tactics.
"From the burning or hanging of effigies in Colonial times to the civil rights and anti-war sit-ins of the 1960s and 1970s, demonstrations, even illegal ones, have been both an outlet for dissent and an instrument for social and legal change," said the appeal for Operation Rescue filed by Jay Alan Sekulow, of the American Center for Law & Justice.
Washington lawyer Alan Untereiner, representing Joseph Scheidler and the Pro-Life Action League, said applying federal laws designed for interstate robbery and extortion to pro-life protests "criminalizes the activities of political protesters who engage in sit-ins and demonstrations."
Smothered under federal extortion law, the court turned away the separate question of whether RICO enforcement must take First Amendment rights into account.
"The court doesn't like to take too many issues at one time," Mr. Untereiner said. The extortion-law "question gives rise to serious First Amendment concerns as well."
Along with the Summit and Delaware organizations, Fay Clayton, the Chicago lawyer representing the National Organization for Women (NOW), objected to comparisons with civil-rights groups that blocked service at whites-only lunch counters and other Southern establishments.
"The folks who hate abortion and would stoop to any means to end them call what they do civil rights," Ms. Clayton said. "Protest should always be protected, but not when the tools are force, violence or fear."
A Chicago-based federal appeals court said abortion protesters chained themselves in doorways to block access to clinics, destroyed medical equipment and "physically assaulted clinic staff and patients."
The high court underscored the range of protests the case involved by permitting three outside groups to file friend-of-the-court briefs over Ms. Clayton's objections.
Such friend-of-the-court briefs usually are allowed by both sides without protest. Yesterday, the court overruled NOW's objections to filings by People for the Ethical Treatment of Animals, Seamless Garment Network and Life Legal Defense Foundation.
The Catholic Conference of Illinois and the state of Alabama filed by mutual consent in support of protesters.
Although the American Civil Liberties Union did not file papers in this round, it said earlier in this case that the same safeguards provided for Mississippi NAACP boycotters should be extended to abortion protesters as well.
The appeals accepted yesterday, for hearing in the fall term before Christmas, sought to reverse NOW's victory in getting lower courts to define protests as extortion on the theory that "social and political protesters interfered with the operation of clinics."
Mr. Sekulow said the appeal provides a chance "to remove a cloud that has been hanging over those who wish to express their opposition to abortion" peacefully and without violence.
"Social protest has a long and revered history in this nation," he said. "To equate a sit-in with criminal extortion and racketeering is an insult to the civil rights movement, the anti-war movement and just about any other serious social protest movement in this nation's history."
That issue deeply divides civil libertarians who support abortion but are conflicted about penalties assessed against protesters under the RICO law.
The "force, violence or fear" phrase Ms. Clayton used came from a Mississippi Supreme Court decision upholding the victories of 17 businesses that sought payment for losses during a seven-year boycott by the National Association for the Advancement of Colored People and NAACP field representative Charles Evers.
However, the 1982 U.S. Supreme Court case NAACP v. Claiborne Hardware reversed that decision and said violence during a group protest could be blamed on only those who committed it.

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