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Future of nonviolent protest said to hinge on appeal to high court


An appeal is being pressed before the U.S. Supreme Court to overturn a 1998 lower court decision that threatens the future of nonviolent protest in the United States.

If the appeal is lost, it means the nonviolent protests that marked the social transformations achieved by Dr. Martin Luther King Jr., by Dorothy Day or by César Chávez -- or, for example, the demonstrations by protesters at the School of the Americas -- could be classified as racketeering and punished with triple damage suits.

Many who oppose what they see as Bush administration inroads into civil liberties have paid scant attention to this case, however, because the case’s starting point -- in 1986 -- centers on nonviolent antiabortion protests outside abortion clinics.

Those concerned about the consequences of the 1998 lower court decision in National Organization of Women v. Joseph Scheidler et al include such activist groups as the Seamless Garment Network, the Southern Christian Leadership Conference, Catholic Worker houses and Sojourners, an evangelical-inspired community in Washington.

More than 40 individuals and two-dozen organizations have joined the case as amici curiae, “friends of the court.” The Supreme Court justices have not yet said whether they will hear an appeal.

The Scheidler in the case is Joseph Scheidler, a nonviolent activist and Chicago-based executive director of the Pro-Life Action League. He, Timothy Murphy and Andrew Scholberg, plus the Pro-Life Action League and Operation Rescue, were accused in a 1986 class-action suit led by the National Organization of Women, NOW, with violating the 1970 Racketeer-Influenced Corrupt Organizations law, called RICO, by using forcible blockades and the threat of violence to close down abortion clinics nationwide.

NOW’s argument was that blockading clinic doors and harassing women using the clinics was a national conspiracy.

Quite simply, NOW wanted to force Scheidler, the Pro-Life Action League and Operation Rescue out of business by bankrupting them. RICO’s use in the case was upheld in 1994 by the Supreme Court, and, in April 1998, a six-person jury in Chicago federal court found for NOW, with damages of $83,000. That amount quickly became $258,000 (including interest) as RICO laws permit tripling of damages. More than 1,000 U.S. abortion clinics could make claims against the defendants.

Following the 1998 decision, Chicago’s Cardinal Francis George commented, “If the courts had been used to stop organized sit-ins at lunch counters through the South in the ’60s there would have been no civil rights movement.”

To date not a penny has been paid because the Chicago ruling has been in abeyance during appeal. Tom Brejcha, the lawyer for Scheidler and the other defendants, said with appeal papers now filed, the clerks to the Supreme Court justices will provide a memoranda “as to whether this case is worthy of review.” Some time in late April or early May, “the justices might vote it up or down, or they might ask the administration to file a brief,” said Brejcha. If four justices vote to hear it, a briefing schedule and oral argument dates would be set, carrying the issue over into the next Supreme Court term.

If, however, the justices vote down the appeal, a petition for rehearing can be filed. Beyond that, he said, the courts would enforce the earlier verdict and the security, “the Scheidlers’ home and cash,” would be forfeited, “and they’d capture all the assets owned by the league and by individuals.”

Many commentators see the RICO law application in this case as blurring the line between protest covered by the First Amendment and criminal activity. The Chicago cardinal said, “The decision effectively equates freedom of speech with racketeering.”

In joining the current appeal as an amicus, the Peter Maurin Center in Washington, (Maurin with Day was a cofounder of the Catholic Worker Movement), said the “misapplication of the law in this way permits the government to single out and criminalize movements for social change virtually at will. Affording the government power of this nature renders democratic practices timid and superficial -- and essentially disempowers the people in the political process.”

The center stated that these RICO law consequences need to be nullified to “protect popular, and especially unpopular, political expression.”

Scheidler himself, in his current brief, said of his pro-life work, “I have carried on my crusade right out in the open. I’ve not been subtle, I’ve been blunt, direct and very likely -- at times, at least -- abrasive.”

But, he continued, “My methods have always been nonviolent. Yes,” said Scheidler, “I have praised the motives and zeal of those who attempted to end abortion by resorting to violence, but while praising their motives I have decried, denounced and disparaged their methods. I have urged them and all others to pursue nonviolent means [by arguing] that violence is counterproductive.”

Lawyer Brejcha, a graduate of Notre Dame and the New York University Law School who in early civil rights work defended Black Panthers, later worked on mainstream business law cases such as antitrust suits. In 1997, after handling the Scheidler case for 10 years, he resigned from his law firm to found The Thomas More Law Center and concentrate on the Scheidler appeal.

Arthur Jones is NCR editor at large. His e-mail address is AJones96@aol.com

National Catholic Reporter, March 22, 2002