- The Washington Times - Sunday, February 10, 2002

The Supreme Court has been asked to hear a high-profile abortion-protest case that could decide if "pro-life" activists will be fined for emulating tactics used by civil rights groups and the anti-war movement.
"The folks who hate abortion and would stoop to any means to end them call what they do civil rights," said Fay Clayton, the Chicago lawyer defending victory by the National Organization for Women (NOW) in a legal fight that has lasted 16 years.
The question divides civil libertarians who support abortion rights and are conflicted about penalties assessed against protesters under the 1961 federal Racketeer Influenced and Corrupt Organizations Act (RICO).
"This important case involves the controversial use of civil RICO against individuals and organizations engaged in vigorous protests against abortion clinics," wrote Alan Untereiner, attorney for Joseph Scheidler and others in the Pro-Life Action League.
Mr. Untereiner's request to the court said a $258,000 triple-damages award against protesters penalizes free speech in violation of the First Amendment.
The appeal objects to NOW's success in defining protest as extortion and a lower court's applying federal racketeering laws "to social and political protesters whose demonstrations, sit-ins and speech interfered with the operation of clinics."
"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," said Jay Sekulow of the American Center for Law and Justice, who represents Operation Rescue in the same case.
"They've been saying that for 20 years," Miss Clayton said in an interview. "Protest should always be protected, but not when the tools are force, violence or fear."
Miss Clayton said NOW soon will file a response asking the high court to reject the appeal, which would let stand fines against the pro-life groups and end the case after 16 years of litigation.
She rejected comparisons to civil rights actions in the 1950s and 1960s, saying Martin Luther King was willing to be jailed for his dissent, which she said is not the stance of Operation Rescue's Randall Terry, who also has been jailed.
Both sides recalled sit-ins that blocked service at Woolworth's whites-only lunch counters, but Miss Clayton said abortion protests were different because they include threats of violence and economic pressures.
"Scheidler testified arson wasn't violent. He said bombings weren't violent," said Miss Clayton, who got him to testify that he discussed violence hours before it occurred. "When he says he didn't have anything to do with it, he's a liar, he's a bloody liar."
She likened pro-life groups in the case to September 11 terrorists and denied their actions have any justification.
"That's the same argument from those who would say we should have been nicer to Osama bin Laden that it's our own fault. I see the Pro-Life Action Network as very similar to those brutes. It's thuggery. To coddle them is not the right solution," Miss Clayton said.
The "force, violence or fear" phrase she used comes from a Mississippi Supreme Court decision upholding the victory by 17 businesses in Port Gibson, Miss. They 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, a 1982 U.S. Supreme Court decision in the case (NAACP v. Claiborne Hardware) reversed that decision and said any violence must be directly connected with those who agitate it, not blamed on everyone involved in an organization's protest.
"This RICO law would have applied to those sit-ins," Mr. Sekulow said. He said there were similarities in testimony of threats at the abortion protests and the NAACP business boycotts.
"I think so, except the threats of violence in Claiborne Hardware were accompanied by gunshots," Mr. Sekulow said.
In unanimously overturning fines for participants in the seven-year Mississippi boycott, the high court said the difference between legal and illegal action by protesters can be determined by whether their goal is legitimate.
The 8-0 opinion written by Justice John Paul Stevens said blacks in Port Gibson took part "out of sheer fear" and were bullied by "enforcers" to join the boycott, but that Charles Evers and the NAACP need not pay for it.
"At times the difference between lawful and unlawful collective action may be identified easily by reference to its purpose. In this case, however, [NAACP] objectives were unquestionably legitimate," Justice Stevens wrote in the 1982 opinion upholding the racial boycott.
Nine years ago, the American Civil Liberties Union argued in the earlier round of the Illinois abortion-clinic case that safeguards the justices ordered for Mississippi boycotters should be extended to abortion protesters, as well.
"Any effort to hold a RICO defendant vicariously liable for someone else's unlawful behavior in cases of this sort must also be judged against First Amendment standards," the ACLU said in its 1993 brief.

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