Defining extortion: RICO, Hobbs, and statutory interpretation in Scheidler v. National Organization for Women, Inc., 123 S. Ct. 1057 (2003).

• Author: Kelly, Daniel B.

1. FACTS & PROCEDURAL HISTORY 955 A. NOW v. Scheidler: Round One 956 B. NOW v. Scheidler: Round Two 957 II. THE SUPREME COURT DECISION 958 III. COMMENT 963 A. Defining Extortion: What Constitutes "Obtaining"? 964 B. What is RICO's Purpose Anyway? 966 C. Catching the Court in a Contradiction? 969 IV. CONCLUSION 971 The Racketeer Influenced and Corrupt Organizations Act (RICO) (1) has recently become the preferred legal weapon for establishing criminal and civil liability in a panoply of situations involving allegedly extortionate conduct. (2) Prosecutions for extortion under RICO originally targeted so-called "organized crime enterprises" that intimidate legitimate business owners for money. Increasingly, RICO has been applied more expansively, most notably as a tool for alleging extortion against pro-life protesters who block access to abortion clinics. (4) As a result, many organizations, representing perspectives from the entire political spectrum, have become alarmed that the threat of civil RICO litigation might inhibit their ability to engage in political and social protest. (5) Some jurists have even worried that it would seem to follow logically from this expansive interpretation of extortion under RICO that the protesting of invidious racial discrimination and segregated restaurants using "sit-down" demonstrations during the Civil Rights Movement would have constituted extortion. (6) Addressing this ambiguity regarding the definition of extortion, the Supreme Court, in Scheidler v. National Organization for Women, Inc., (7) held that petitioners, Joseph Scheidler and a coalition of pro-life activists, did not commit extortion because they did not obtain property from respondents as required by the Hobbs Act. (8) That is, an extortionate act cannot occur unless the offending party actually acquires the victim's property. (9) In clarifying the definition of extortion, the Supreme Court ensured that the legal system will be able to draw a reasonable distinction between organized criminals who acquire money by force and civil rights leaders, pro-life activists, and future protesters whose objectives are not profit but the promulgation of their political messages.

1. FACTS & PROCEDURAL HISTORY

   The Supreme Court's decision in Scheidler is the final battle of a tumultuous seventeen-year litigation war waged between the National Organization for Women (NOW) and pro-life activists. The case, initiated in 1986 in the United States District Court for the Northern District of Illinois, first reached the Supreme Court in 1994. The case was remanded to the trial court, which awarded treble damages of over $257,000 (10) and granted a nationwide injunction against the protesters. (11) The Seventh Circuit Court of Appeals affirmed the trial court's decision in favor of NOW, and the case was again appealed to the United States Supreme Court in 2002.

   U.S. 1057 (2003). See also Matthew C. Blickensderfer, Note, Unleashing RICO, 17 HARV. J.L. & PUB. POL'Y 867, 886 n.104 (1994) ("Had RICO ... been conceived in the 1960s, it is possible that RICO could have been used against the civil rights movement."). For a sample of cases during the Civil Rights Movement in which "sit-in" protesters were eventually exonerated but might have been convicted for extortion under RICO, see e.g., Bell v. Maryland, 378 U.S. 226 (1964) (vacating judgment against students arrested for criminal trespass after "sit-in" demonstration at privately-owned restaurant that refused to serve members of their race); Lombard v. Louisiana, 373 U.S. 267 (1963) (reversing criminal convictions of students who refused to leave having been denied service at refreshment counter); Garner v. Louisiana, 368 U.S. 157 (1961) (reversing defendants' convictions for engaging in "sit-in" and refusing to leave lunch counters that were reserved for people of another race). Cf. NAACP v. Claiborne, 458 U.S. 886 (1982) (holding that state common-law prohibition on malicious interference with business could not be constitutionally applied to civil-rights boycott of white merchants).

   1. NOW v. Scheidler: Round One

      The plaintiffs--NOW and two abortion clinics--brought class actions (12) alleging that the defendants--individual anti-abortion activists including Joseph Scheidler and several antiabortion organizations--engaged in a conspiracy to close all abortion clinics through a pattern of illegal activity. The plaintiffs alleged that the defendants violated the Sherman Antitrust Act and RICO, as well as several pendent state-law claims. (14) NOW later amended its complaint, (15) claiming that the defendants were "members of a nationwide conspiracy to shut down abortion clinics through a pattern of racketeering activity," (16) including Hobbs Act extortion, (17) a predicate offense under RICO. (18) The defendants filed a motion to dismiss.

      The United States District Court for the Northern District of Illinois, dismissing NOW's claims, held that liability under RICO could not be imposed against abortion protesters when neither the alleged enterprise nor the racketeering acts were economically motivated. (19) The Seventh Circuit, affirming the dismissal, agreed that there is an economic motive requirement implicit in RICO's "enterprise" element. (20) NOW and the abortion clinics appealed, and the Supreme Court unanimously reversed. (21) The Court held that RICO requires no economic motive. (22) The Court remanded the case to the district court for trial of the RICO claims.

   2. NOW v. Scheidler: Round Two

      During a seven-week trial in 1998, NOW introduced evidence of various acts, which it contended constituted predicate acts under RICO. (23) These alleged predicate acts included violations of federal extortion law (the Hobbs Act), state extortion law, the federal Travel Act, and conspiracy to violate these laws. (24) The jury found for the plaintiffs and awarded treble damages of over $257,000; additionally, the district court issued a permanent, nationwide injunction against the protesters. (25)

      The Seventh Circuit Court of Appeals affirmed. Scheidler and the defendants contended that the Hobbs Act did not apply to their conduct because the things that plaintiffs claimed were "obtained"--the women's rights to seek reproductive services, the clinic doctors' rights to perform their jobs, and the clinics' rights to provide reproductive services--could not be considered "property" as required by the Hobbs Act. (26) Rejecting this argument, the Circuit concluded that "intangible property such as the right to conduct a business can be considered 'property' under the Hobbs Act." (27) Likewise, the Seventh Circuit rejected the defendants' assertion that even if property were involved, the defendants did not obtain that property because they merely forced the plaintiffs to part with it. (28) The Court stated that "an extortionist can violate the Hobbs Act without either seeking or receiving money or anything else. A loss to, or interference with the rights of, the victim is all that is required." (29) Joseph Scheidler and the defendants petitioned the Supreme Court, which granted certiorari; (30) for the second time in ten years, the case was headed to the highest court in the land.

2. THE SUPREME COURT DECISION

   In an eight-to-one decision written by Chief Justice Rehnquist, the Supreme Court reversed. (31) The Court held that, because the petitioners did not obtain or attempt to obtain property from NOW and the clinics, there was no basis to find that they committed extortion under the Hobbs Act, the statutory language of which requires "the obtaining of property from another." (32)

   Before the Court, Scheidler and his fellow petitioners contended that upholding the verdict would represent an unacceptable expansion of extortion under the Hobbs Act. (33) They claimed that the Seventh Circuit had "rea[d] the requirement of 'obtaining' completely out of the statute." (34) On the other hand, NOW and the respondents shifted the thrust of their earlier theory (35) and asserted that petitioners violated the Hobbs Act by "seeking to get control of the use and disposition of respondents property." (36) They argued that, because the right to control the use of an asset is property, the protesters, who interfered with the ability of the clinics to function, "obtained or attempted to obtain respondents' property." (37)

   The statutory language of the Hobbs Act requires that property must be "obtained" in order for extortion to occur: "The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." (38) The principal objective of the Supreme Court was to determine what constitutes "obtaining" property. In Scheidler, the Court asserted that under both the Field Code (39) and the Penal Code of New York (40) (from which Congress formulated the Hobbs Act),41 extortion required that property must be "obtained" in the sense that one party is deprived of the property and another party acquires the property. Chief Justice Rehnquist also pointed out that in an earlier case the Supreme Court itself recognized that the "obtaining" requirement of extortion under New York law "entailed both a deprivation and acquisition of property." (43) Indeed, the Court has construed the relevant extortion provision of the Hobbs Act "to require not only the deprivation but also the acquisition of property." Thus, the Court concluded that extortion requires obtaining property, and to "obtain" property one must "acquire" property from another party. (45)

   Applying this definition of extortion, the Court concluded in Scheidler that even when the protesters' acts of interference and disruption achieved their ultimate goal of "shutting down" a clinic that performed abortions, these acts did not constitute extortion because the protesters did not obtain the respondents' property. (46) While they may...