Inc. v. Scheidler National Organization for Women

Not only was it unanimous, the Court's opinion in Scheidler was remarkably short--only eight pages, including footnotes. This belied the complexity of the free-speech issues it raised, issues addressed briefly by Justice Souter in a concurring opinion joined by Justice Kennedy. Quoting from Lucas v. Alexander (1929), Souter noted that "a law `must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity." In this particular case, Souter noted, the language of the statute was unambiguous, and therefore it was pointless to challenge RICO on that basis. And even if RICO's meaning were debatable, this would not mean that an economic motive requirement should be written into the statute, "since such a requirement would correspond only poorly to free speech patterns."

Finally, the economic requirement would be unnecessary, Souter suggested, because it would make more sense to challenge RICO on the basis of free speech. In fact, he all but invited future petitioners to do so: "Accordingly," he wrote, "it is important to stress that nothing in the Court's opinion precludes a RICO defendant from raising the First Amendment in its defense in a particular case." In National Association for the Advancement of Colored People v. Claiborne Hardware Co. (1982), for instance, the Court had ruled that a state law prohibiting interference with business could not constitutionally be allied to a civil rights boycott of white merchants. Justice Souter concluded by warning that "I think it prudent to notice that RICO actions could deter protected advocacy, and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake."

Feminists and pro-choice advocates were exultant over the decision, as van Biema noted in Time soon afterward. Judith Lichtman of the Women's Legal Defense Fund called it "a victory for women . . . By this decision, the Court rightly recognized the danger that this national conspiracy of harassment, stalkings, bombings, shootings and chemical attacks poses to women and health care providers." Such a statement, van Biema observed, offered a too-broad interpretation of what was in fact a narrow Court opinion--and, incidentally, a too-broad interpretation of the constituency it benefited. Regarding the characterization of Scheidler as "a victory for women," van Biema wrote that this "may depend on whether a woman is for or against abortion rights." The ruling seemed a solution to the tragic situation surrounding abortion clinics, which was symbolized by the shooting of Dr. David Gunn in Alabama in March of 1993 by an anti-abortion zealot. Clearly the extremist fringes of the pro-life movement had created a threat to personal safety and individual liberty, but the Scheidler decision offered protection against such incidents with a ruling that introduced the potential for a chilling effect on free speech. Randell Terry, a leader in the Operation Rescue organization, called the decision "A vulgar betrayal of over 200 years of tolerance toward protest." Scheidler, Terry's one-time mentor, viewed with disdain attempts to obtain treble damages from him: "You can't get blood from a turnip," he said.

One individual who expressed deep concern about the ruling- -and high hopes for the next round of legal battles, the federal civil trial--was G. Robert Blakey. In the present case, he was the lawyer for Scheidler and other respondents; but 23 years before, he had held a role that gave him special insight on RICO. Blakey, it turns out, was the individual who drafted the statute as chief counsel to the Senate Judiciary Subcommittee on Criminal Laws. At the time, he said, Senator Edward Kennedy expressed fears that President Richard M. Nixon would use the statute against anti-war protesters. Therefore Blakey and Kennedy sat down in the Monocle Restaurant in Washington, D.C. one day to alter the bill's language. Later, after the federal civil trial that followed Scheidler, Blakey decried the methods used to criminalize forms of free speech and protest: "This ruling," he said, "makes the Boston Tea Party a RICO [violation]."