Has the Supreme Court really turned RICO upside down?: an examination of NOW v. Scheidler.

AuthorVitiello, Michael
PositionG. Robert Blakey's criticisms of the decision

    According to disappointed advocate(1) G. Robert Blakey, in April, 1986, Joseph Scheidler, who "learned his strategy of protest from Martin Luther King, [Jr.]," told the administrator of a women's health clinic "to get out of the abortion business because some day she would have to answer to Almighty God."(2) The next day, Scheidler, a peaceful protester, was arrested and charged with trespassing and harassment for demonstrating at the clinic. He was eventually found guilty of trespass, but was not found guilty of harassment.(3)

    Thereafter, as part of what Blakey calls a strategy of intimidation,(4) the National Organization for Women (NOW) sued Scheidler, among others, alleging violations of RICO.(5) The federal district court dismissed the RICO claims because NOW did not allege an economic motive for the defendant's actions.(6) The United States Court of Appeals for the Seventh Circuit affirmed.(7) The United States Supreme Court reversed and found that the complaint did state a claim under RICO.(8)

    In a recent volume of a prominent conservative journal, Blakey, who represented Scheidler before the Supreme Court, excoriated the Court for its decision in National Organization for Women v. Scheidler.(9) The spirit of the article was captured in the evocative headlines: Perversion of Intent and Now that the RICO Law Has Been Turned Upside Down, Where is the ACLU?(10)

    Blakey's article does not focus specifically on the ACLU, but his message is clear. Blakey argues that liberal critics of RICO, like the ACLU,(11) abandoned their principles by not coming to the defense of peaceful anti-abortion demonstrators. According to Blakey, with its decision in Scheidler, the Supreme Court affirmed NOW's strategy of intimidating First Amendment rights of political and social protesters.(12) Blakey is critical of the Court's method as well. He accuses the Court of deciding Scheidler based on a "new judicial philosophy," the "New Textualism," focusing exclusively on textual language, ignoring congressional intent.(13) He suggests, too, that RICO is designed to criminalize Vito Corleone's extortionist tactics, but not Dr. Spock's protests at a draft center.(14)

    This essay examines those charges. It reviews Blakey's specific criticisms of the Court's decision.(15) It then analyzes each of those criticisms. This essay concludes that Blakey is crying wolf. Blakey is incorrect when he argues that the Supreme Court affirmed the intimidation of political and social protesters. In fact, the Court in Scheidler decided only a narrow question concerning the meaning of "enterprise"(16) and did not decide whether "non-violent" protest is chargeable as a RICO offense. This essay also examines Blakey's suggestion that RICO is available against extortionists like Don Corleone, but not protesters like Dr. Spock. Despite his suggestion in "The RICO Racket" that RICO is suitable for one class of criminals but not another, Professor Blakey has repeatedly argued that RICO applies to everyone who violates its broadly worded substantive provisions. Following Professor Blakey's lead, courts have taken an expansive view of RICO's legislative history and rejected efforts to limit RICO to a specific class of criminal defendants.(17) Further, in assessing Blakey's claim that Scheidler is symptomatic of the New Textualism, this essay examines the Supreme Court's decisions interpreting RICO's substantive provisions. Most of those decisions antedate the current Court's flirtation with the New Textualism. This examination shows that Blakey's claim that Scheidler represents a different approach to statutory construction is unfounded.(18)

    Finally, this essay compares the position Professor Blakey took on RICO in his past writings with the position he takes in "The Rico Racket." As RICO's primary draftsman, Blakey has been an influential commentator.(19) Throughout the RICO debate, Professor Blakey has been the primary advocate of reading RICO's terms broadly. His past writings have consistently criticized efforts to limit RICO,(20) and he has shown scorn for those who complain when their constituencies have been impaled on RICO.(21) By contrast, in "The RICO Racket," it is Advocate Blakey who has failed to demonstrate his high principles now that the tables have been turned and his client has felt the sting of RICO.(22)


    In "The RICO Racket," Blakey accuses the Supreme Court of coming "perilously close to equating demonstrators with 'racketeers.'"(23) Blakey argues that when RICO was originally proposed by Senator McClellan, Senators Phillip Hart and Ted Kennedy objected that it might be applied "beyond organized crime" to antiwar demonstrators.(24) To meet their objections and those of the ACLU, Senator McClellan told Blakey to strike the language that gave the senators concern. Blakey did so, and "[n]o offense relating to trespass or vandalism in the context of protests was included in the final version of RICO."(25) Hence, Blakey claims, RICO was intended to reach only "organized commercial exploitation,"(26) and posed no threat to First Amendment rights.

    In "The RICO Racket," Blakey implies that in rejecting the economic motive requirement for a RICO enterprise, the Supreme Court was wrong in deciding the case based on what he calls a "new judicial philosophy aptly termed the 'New Textualism.'"(27) He claims that the Court has allowd NOW to turn RICO into a "weapon of terror against First Amendment freedoms."(28)

    "The RICO Racket" argues that a person like Scheidler, a proponent of non-violence, is not an intended target of RICO. Blakey states that there is "[a] world of legal difference ... between a Vito Corleone who uses a mob-dominated union" to extort money from a restaurateur and "a Benjamin Spock who sits in a draft-board office to protest the war in Vietnam."(29) In context, Blakey may be arguing only that RICO should cover merely extortion and not non-violent protests. But it also suggests that only some defendants, "mobsters" or Mafiosi, are suitable targets of RICO.

    Thus, Blakey raises two or possibly three distinct and sharp objections to Scheidler. First, the Court endorsed a policy that allows harassment of non-violent protesters and the trampling of their First Amendment freedom; second, the decision in Scheidler allows the government to use RICO against unsuitable classes of defendants, like the Dr. Spocks of the world, instead of exclusively the Don Corleones; third, the Court ignored clear legislative history that would have produced a contrary result and deferred improperly to RICO's text.


    The Court's decision in Scheidler has obvious political overtones. It is one more battle in the abortion wars. In 1993, pro-choice forces were rebuffed by the Court when they attempted to use civil rights legislation to create a basis for federal law enforcement involvement against anti-abortion protesters.(30) The decision in Scheidler leaves open the possibility of federal involvement. But it is easy to overstate the case. The plaintiffs in Scheidler are far from succeeding at trial.(31) Rather, they merely withstood a motion to dismiss for a failure to state a claim for relief. As discussed below, as a tool against anti-abortion foes, RICO is fraught with difficulty. The 1994 legislation criminalizing specified conduct at abortion clinics will be a far more effective law enforcement tool.(32)

    Even if Scheidler is a victory for the pro-choice movement, it is certainly not a violent blow to First Amendment freedoms, as Blakey alleged. In Scheidler, the Court answered a very narrow question and did so in a rather non-controversial manner. In fact, abortion foe Chief Justice Rehnquist(33) wrote the opinion in Scheidler and did so for a unanimous court.(34)

    NOW's complaint alleged, among other things, three RICO violations.(35) The district court dismissed all three claims, largely because the plaintiffs failed to allege "some profit-generating purpose."(36) The Seventh Circuit affirmed that judgment.(37)

    The Supreme Court granted certiorari to resolve an inter-circuit conflict whether a RICO enterprise must have an economic motive.(38) The Supreme Court reversed the Seventh circuit.(39) Its analysis was straightforward. It examined RICO's definition of "enterprise" and found that the term was broadly defined and did not require that an enterprise have an economic motive.(40) The Court examined the requirement that the enterprise's activity affect interstate commerce and concluded, without discussion, that an enterprise can have such an effect "without having its own profit-seeking motives."(41)

    The strongest argument in favor of limiting RICO claims to profit-seeking activities is that [sections][sections] 1962(a)-(b) refer to enterprises run for profit and that "enterprise" in [sections] 1962(c) should be defined narrowly. The Court concluded that, while an "enterprise" in [sections][sections] 1962(a) and (b) will usually be a profit seeking entity, such enterprises may lack an economic motive.(42) Therefore, a subsection (c) enterprise also need not be profit-motivated.

    The Seventh Circuit concluded, as had the Second Circuit in United States v. Bagaric,(43) that the legislative history supported an economic motive element.(44) Specifically, the Second Circuit pointed to Congress' statement in its findings that criminal syndicates "drain[] billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud, and corruption."(45)

    The Supreme Court was unimpressed. First, the Court found that, even if the predicate offenses did not benefit the protesters, these offenses could have an effect on the economy by damaging the targeted businesses.(46) Second, the Supreme Court previously refused to limit RICO's application to the...

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