- The Washington Times - Thursday, December 5, 2002

Supreme Court justices used a 1986 abortion case to debate the limits of political protests yesterday, professing skepticism as to whether protests that shut down a business could be called extortion.
At issue was Joseph Scheidler v. National Organization for Women (NOW), in which a jury found two pro-life groups and three individuals guilty of using extortion to shut down abortion clinics.
The case has taken on larger free-speech implications because of how it allows the Racketeer Influenced and Corrupt Organizations (RICO) Act a statute originally passed to combat organized crime to be applied to any social or political protests. A decision, which could have huge implications for protesters, is expected by June.
Yesterday's hearing split the usual left-right political axis, with civil liberties groups, animal rights organizations, anti-war activists, and liberal actor Martin Sheen supporting pro-life groups in their right to protest.
Justices spent most of their time discussing whether demonstrations that limited access to a business and interfered with a customer's freedom to obtain services there could be defined as extortion. They frequently brought up one famous example: the civil rights activists whose sit-in protests at Woolworth's lunch counters in 1960 focused national attention on racial segregation.
Unlike the 1960s protests, argued Fay Clayton, attorney for NOW, abortion protests are a premeditated attempt to control a local business. That, she said, makes them guilty of violating RICO and the Hobbs Anti Racketeering Act, which defines extortion has having acquired another's property or control over that property.
"Miss Clayton concedes that classic protests in American history can be called extortion," said Roy Englert, attorney for Operation Rescue and pro-life leaders. "Civil rights boycotts of white merchants certainly affected people's right to use their property. Was that extortion?"
Justice Sandra Day O'Connor interjected, "We're not talking about conduct that is lawful."
"But," Mr. Englert responded, "we are talking about conduct that could be punished less severely." Even if there is violence during pro-life demonstrations, he said, that is not the same as extortion.
Justices debated whether a sit-in would constitute extortion and whether abortion protesters could be said to be "obtaining property," which constitutes extortion under the Hobbs Act.
In the case of abortion clinics, "it's not property that's obtained," said Justice David H. Souter, "it's a service."
"Control is not property," Mr. Englert said. "Property is property."
The Bush administration partially supported Miss Clayton, arguing that the Hobbs Act but not the RICO statute could be applied to clinic protesters.
U.S. Solicitor General Theodore Olson assured justices yesterday that labor picketing would not be construed as extortion, but Justice Antonin Scalia questioned that argument.
"Why would you separate collective-bargaining demands from other demands?" he asked. "You're getting this language out of nowhere."
Justice O'Connor said the Hobbs Act does not seem to protect abortion access.
"If we agree with your definition of property as controlling a business asset, it doesn't control obtaining services in a clinic," she told Mr. Olson.
Miss Clayton said clinics have the right to control their property, women have the right to spend their money there and both parties have a right to enter into a contract with each other.
"So, a woman's right to seek services is property?" Justice Stephen G. Breyer asked.
"She's not just going shopping," Miss Clayton said. "She has made an appointment. If I am going to have a biopsy, I have a property right to that."
"Then," said Justice Scalia, "everything becomes property. If I say to you, 'Don't use that pen or I will do something unlawful,' does that mean I've obtained your pen?"
Miss Clayton said his action would have to involve force or violence to constitute extortion.
"If my client, the National Organization for Women, went up to the Augusta golf course to tear up the greens, that'd be extortion," she said, referring to current protests against the all-male Augusta National Golf Club in Georgia.
"It'd be a crime," Judge Scalia retorted, "but not extortion."

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