Asymmetrical Information

Thank goodness. One can disagree with Operation Rescue and like minded pro-life groups without resorting to government intimidation and prosecution. RICO law itself is bad enough but to make an attempt to apply it to a political opponent is disgusting.

When lefties bitch about free speech zones, they should remember the origins and for what purpose these buffer zones were created. The left seems very comfortable with silencing opinions they disagree with. They seem comfortable with handing the government more and more power, provided the government does not use it against them. And these are the same people who fear a fascist government yet cannot see that power given up by the people to government is never returned.

Can someone tell me again how the left stands for free speech beyond blaming America for the world's woes, questionable art and pornography? Will they ever make a stand for those they disagree with?

"Can someone tell me again how the left stands for free speech beyond blaming America for the world's woes, questionable art and pornography? Will they ever make a stand for those they disagree with?"

Try the ACLU defending the rights of Nazis to speak. Just one example.

Tell me again how much the right respects open debate. Will they ever do anything but accuse those they disagree with of treason?

"Try the ACLU defending the rights of Nazis to speak. Just one example."

An admission that the ACLU is actually a leftist organization as opposed to a non-partisan group interested in the bill of rights sans the 2nd amendment? I'm shocked! And while I applauded the ACLU for standing up for unpopular speech, their personal crusade against nativity scenes has soured me on them.

But as Jake and Elwood taught us we can still hate the Nazis from Skokie ;-)

"Tell me again how much the right respects open debate. Will they ever do anything but accuse those they disagree with of treason?"

Touche' I had fallen into the trap that some elements speak for a group as a whole. Sometimes the need to vent overrides rational thought. I hope the above statement was to point out my mistake and not repeating it.

I fail to see why RICO prosecutions of groups like Operation Rescue are any more reprehensible than other forms of RICO prosecutions. Operation Rescue was an ongoing criminal conspiracy using illegal actions to deprive other people of rights and property.

Just to be clear -- I think that all RICO prosecutions are wrong. I'm just not sure why I should think that the Operation Rescue people should be treated differently than any other criminal organization.

"When lefties bitch about free speech zones, they should remember the origins and for what purpose these buffer zones were created."

I remember when America was a free speech zone.

this is a bad decision on the facts

violent protest and intimidation should be met with harsh penalties, especially when it is nationally or interantionally co-ordinated

this will be a serious blow to dealing with islamists, earth firsters, ELF, and ALF (amongst others)

violent protest and intimidation isn't speech, it's battery and assault (respectively), but the US and the west won't defend itself

I will agree that RICO charges are not a good way to deal with these people... violent protests = rioting (and frequently trespassing) and should be met with a 12 guage!

"Operation Rescue was an ongoing criminal conspiracy using illegal actions to deprive other people of rights and property."

There are times when ideological zealots of any stripe deserve arrest and prosecution. I have, for instance, no problem with the authorities arresting pro-lifers who block access to an abortion clinic. Still, there is no justification whatsoever in employing the RICO statutes. This was an obvious step on the proverbial slippery slope endangering the rights of all Americans. Why did it take the U.S. Supreme Court to put a stop to such nonsense? Where were the lower courts when we needed them?

Ryan,

"I hope the above statement was to point out my mistake and not repeating it. "

Touche too. Yes I was overgeneralizing a bit .

Still, I don't see anything done by prominent Democrats quite as sleazy as the questioning of opponents' patriotism being done by "uniter not divider" Bush.

I guess perspective matters, though.

On another matter:

Whether the ACLU is "leftist"or not, it is clear that the right regards it as leftist, so to the extent it defends those who disagree with it it meets your test.

Liberals, I'm sure, are breathing a sigh of relief. The fear was, with the precedence set, that a Republican administration would use RICO to go after liberal activists. It was bad policy to use such a law in the first place.

Bernard,

"Still, I don't see anything done by prominent Democrats quite as sleazy as the questioning of opponents' patriotism being done by "uniter not divider" Bush."

I can certainly agree with that with the caveat that prominent Dems are still learning the ropes as the minority party and it is killing them. You saw it with the vote on the Iraqi resolution last year that now is treated like the plague. Both parties have shown time and again, that they care less about the Aemrican people than they do in maintaining their own power. Dems hope the economy doesn't recover or Bush is defeated in relation to the going to war. This is not out of some kindness in their heart but rather to bolster their chnaces in the next election cycle. Quite a few GOPers have used unAmerican and unpatriotic so loosely it has started to lose any meaning. Dems are Americans too even if I fiercely disagree with them. There are some elements of the left that I do consider unAmerican and unpatriotic but the Dem party is not one of them...well maybe Hillary ;-)

"I guess perspective matters, though."

Always.

"On another matter:

Whether the ACLU is "leftist"or not, it is clear that the right regards it as leftist, so to the extent it defends those who disagree with it it meets your test."

Naahhh that was just a tweak of the nose to your rebuttal about the left standing for free speech. I have issues with the ACLU bent on trivial matters such as nativity scenes and bible clubs but for the most part they are excellent on free speech issues. Are they leftist? More like left leaning than outright lefty. I was just initially shocked that the ACLU was the example you called up in response to my original challenge.

Take care.

Unfortunately for "Libertarian Uber Alles," the decision was correct on the facts. Here are the points on which the Supreme Court decided the matter:

1) RICO actions require the proof of one or more of a particular list of crimes.

2) The particular crime charged in this case was extortion.

3) "Extortion," for RICO purposes, does not mean whatever a State legislature (or State court, or jury) is pleased to call it; what it means under Federal law is controlling.

4) The crime of extortion, in Federal law, requires that the victim lose, and that the perpetrator obtain, something of value.

5) That element was not present in this case.

6) "Coercion" is also a crime, and amply covers the facts here.

7) Federal law antecedent to the Hobbs Act (the violation of which was the underpinning criminality which supposedly justified the application of RICO) mentioned both "extortion" and "coercion" for special treatment.

8) In redrafting Federal law in the Hobbs Act, Congress explicitly retained "extortion," and dropped "coercion."

9) Congress' explicit intention, in crafting the Hobbs Act, was to clarify the list of crimes vulnerable to special prosecution strategies when dealing with organized crime.

10) The Hobbs Act is a criminal statute.

11) Criminal statutes should be construed strictly, in the light most favorable to the defendant.

12) "Coercion" cannot be construed into "extortion" under the Hobbs Act.

13) The abortion protesters were not guilty of violating the Hobbs Act.

14) The RICO action predicated upon conviction for such violation, therefore, could not stand.

15) The ten-year injunction issued as part of that proceeding could not stand.

I recommend point #11 to his special attention.

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Unfortunately for Jane, the Supreme Court did not say anything about the applicability of RICO actions to abortion-clinic protesters (see above). It shot down the RICO case against these protesters, that is all. Future litigants are still free to try out new RICO theories predicated upon other facts and/or other underlying crimes.

"Still, I don't see anything done by prominent Democrats quite as sleazy as the questioning of opponents' patriotism being done by "uniter not divider" Bush. "

No? How about the not so subtle suggestion that Bush wants a war to help his reelection chances? Where does such a charge rank on the old sleazy scale? Or the charge that Republicans oppose affirmative action because they are racists at heart? Or that Republicans want to pollute the environment (because who wants clean water?), throw old folks onto the street, and starve school children?

I think an honest observer would have to agree there are scurrilous charges being made by both sides. Still, if someone keeps pointing out America's faults and only grudgingly, if ever, admits America has at times been a force for good, it does not seem beyond the pale to wonder just how much affection for our country such a person has.

Ooooh! Wait! I know!

How about "Bush wants to put arsenic into your drinking water"? That one was always good for a backslap and a chuckle. Course, we were laughing at you. Maybe that's part and parcel of the "not respecting open debate" thing.

4) The crime of extortion, in Federal law, requires that the victim lose, and that the perpetrator obtain, something of value.

5) That element was not present in this case.

See, this it the problem I have: does shutting down a clinic have no value? I guess this case doesn't matter that much specifically, as Congress passed a similar clinic access law in the 1990s, but I'm curious what sort of ramifications this is going to have on RICO on general.

To both Davids,

Point taken. There are scurrilous things said on both sides, and I doubt we could ever get our respective sleaze meters calibrated the same way.

In response to David W, I would say two things:

First that this sort of tactic has a long history in the Republican party.

Second, that the most conspicuous, and enraging, recent cases of the Bush statements I was criticizing were during the last election, when they were aimed at Democratic candidates across the board. This included, outrageously, Max Cleland. Indefensible.

David P.,

Yes. The arsenic issue, as I understand it, was totally phoney.

Everyone who cares about their rights is breathing a sigh of relief over this one, not just liberals.

And, as to the other contention, sorry, but this case was most certainly right on its facts. No-one denied that the clinic being open has value - but, as was pointed out above - that value was never "obtained" by the defendants. Had the plaintiffs prosecuted the protestors for "coercion", they'd have won. Of course, "coercion" doesn't get you the same measure of civil liability or the right to do it in Federal court under Federal law - without which there's no nationwide injunction (talk about suppressing dissent!).

A precedent allowing the use of RICO to beat back protestors would have been bad enough. Undermining the rule of construction requiring criminal statutes to be construed strictly and ambuiguities resolved in the manner most favourable to the defendant would have been even worse. And decidedly illiberal.

Ryan wrote:

"An admission that the ACLU is actually a leftist organization as opposed to a non-partisan group interested in the bill of rights sans the 2nd amendment? I'm shocked!"

They've also been noticably silent on the takings clause of the 5th Amendment, the seperation of powers under the 10th Amendment, and on the wrong side of the 14th Amendment's "equal protection" clause when it comes to racist policies like affirmative action.

Dan wrote:

"Operation Rescue was an ongoing criminal conspiracy using illegal actions to deprive other people of rights and property."

Then by that standard a number of environmentalist, labor union, and so-called "antiwar groups" could be labled as a "criminal conspiracy."

"They've also been noticably silent on the takings clause"

A random ACLU brief:

"Idaho state officials and their amici urge the Court to adopt a real property exception to Ex Parte Young. They claim that, at least in the real property context, principles of federalism outweigh the rights of individuals to litigate federal constitutional or statutory deprivations in federal court. In essence, the state officials and their amici ask the Court to rule that some federal rights are more supreme, and consequently, more worthy of protection than others. Their arguments should be rejected. The Constitution does not prioritize protected rights; neither should the Court. The right to protect real property from unconstitutional takings or takings that violate federal statutory rights should not be relegated to second-class status."

"This Court previously has refused to create such a hierarchy of rights. See, e.g., Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972)(citing interdependence between right to liberty and right to property), Dolan v. City of Tigard, 512 U.S. , 114 S.Ct. 2309, 2320 (1994)(acknowledging that the Takings Clause of the Fifth Amendment is as much a part of the Bill of Rights as the First and Fourteenth Amendments). It should not do so now."

I'm not particularly sure how the 10th amendment is a "civil liberty," though.

"See, this it the problem I have: does shutting down a clinic have no value?"

For the act to be extortion under Federal law, one would have to show, not only that the victim lost something of value, but that the perpetrator gained that thing.

Again, I emphasize point #11. Prosecutors are not free to shoehorn whatever acts they please into a criminal statute by forced construction.

"For the act to be extortion under Federal law, one would have to show, not only that the victim lost something of value, but that the perpetrator gained that thing."

Do they have to be precisely the same thing? That's pretty restrictive. The clinic wants to operate - the ability to do so has value to the operators. The protestors want it not to operate. That has value to them. (The protestors would, presumably, pay to have the clinic closed). That looks pretty close to the "same thing."

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