Protest is not Extortion

by Jay Johansen

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The Supreme Court has ruled that pro-life protests against an abortion center are not "extortion", even if they cost the abortionist money. See Scheidler v. Now.

The law defines "extortion" as "obtaining something of value" by force or threats of force. In the late 70's Congress passed the "Racketeering In Corrupt Organizations Act", RICO for short, with harsh penalties for extortion. It was targeted at gangsters attempting to take over legitimate businesses. At the time, the Vietnam War was still underway, and liberals in Congress questioned whether RICO might not be used against anti-war protestors. They were assured that it would not, that RICO was targeted at gangsters, not protestors.

Then in 1992, the National Organization for Women and two abortion centers sued the Pro-Life Action League under RICO. They claimed that protests at these abortion centers amounted to extortion, because by interfering with the operation of the abortion business, protestors took away the right of women to obtain abortions, the right of abortionists to do their jobs, and the right of the owners to profit from abortions.

PLAN replied that the only "force" they ever used was blocking the entrance to the building with their bodies, which they admitted was illegal, but such trespassing is normally considered a misdemeanor, and not the felony with penalties of hundreds of thousands of dollars being sought here. The abortionists came up with a long list of acts of violence and threats which they claimed were committed by people at these protests. They admitted that none of these alleged acts of violence were actually done by the defendants, but the jury agreed that PLAN was responsible for them because they organized the protests. PLAN later found evidence calling the testimony of the anonymous witnesses who testified to the violence into question, such as videotapes of protests showing that claimed acts never happened, contradictions in testimony, etc, but the courts refused to look at this new evidence on the grounds that it was submitted too late.

PLAN's second line of argument was that they could not be guilty of extortion because they never sought to gain anything of monetary value. In the past, to be found guilty of extortion you had to take something from the victim: cash, buildings, something. But in this case the abortionists argued that what was "obtained" was their "intangible property rights". The court agreed that property did not have to be tangible. In the past courts have ruled that things like the ability to seek out new customers is "property". But the court held that the defendant must have "obtained" the property in some real sense, and not simply deprived the victim of its use. That might be a crime, but it's not extortion.

It was surely not surprising that many pro-life groups urged the court to rule in favor of PLAN. But many other social action groups also came out on PLAN's side, including the Southern Christian Leadership Conference (an anti-racism group), People for the Ethical Treatment of Animals, even the American Civil Liberties Union, not normally a friend of pro-lifers. All were worried that if this reasoning was upheld, all sorts of peaceful protest would become a crime. Boycott the Dixie Chicks because you don't like their anti-war statements? You've cost them money: you're now an extortionist and a gangster.

In an equally surprising twist, the Department of Justice, under the leadership of John Ashcroft, urged the court to uphold the extortion convictions. When Ashcroft was nominated he instantly became the target of harsh attacks because of his pro-life views, with senators grilling him on whether he would enforce pro-abortion laws despite his personal beliefs. He assured them that he would. Apparently he kept his word and then some.

Justice Ginsburg gave a two-part argument why she voted in favor of the pro-lifers in this case: First, there is another law on the books, the Freedom of Access to Clinic Entrances Act, that could be used to prosecute anti-abortion protestors, and so RICO is not needed. Second, a decisive point for her was when a witness testifying in favor of calling this "extortion" conceded that, if his interpretation of the law won, "civil rights sit-ins" could be declared extortion.


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Posted 4 May 2003.

Copyright 2003 by Pregnant Pause
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