Free Speech and Rico

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In 1970, Congress enacted the organized crime control act, Title IX of which is known as the racketeer influenced and corrupt organizations act (RICO). RICO is enforced through criminal prosecutions and through private civil suits in which treble damages and awards of counsel fees are authorized. Organized crime, that is, groups such as the Mafia, gave rise to RICO, but it applies to conduct engaged in by "any person." For this reason, individuals have challenged RICO as a threat to freedom of speech. Objections are made to its vagueness, to its application to certain conduct, and to its administration by the courts.

Standards of guilt must be ascertainable, and yet vagueness is a question of degree. A statute is not vague merely because it is difficult to determine whether marginal or hypothetical cases fall within its terms; typically, too, a statute is judged "as applied" to the defendant's conduct. Only free speech challenges are "facial," that is, tested by looking to the text of the statute. Because RICO specifies " obscenity " and "extortion" within its prohibited conduct, RICO implicates free speech. RICO's application to obscenity was upheld in 1989 in Fort Wayne Books, Inc. v. Indiana. The Supreme Court found that because the term "obscenity" itself was not vague, RICO was not vague. Because RICO requires a "pattern" of "obscenity" violations in connection with an "enterprise," "RICO is inherently less vague than obscenity [by itself]." According to the Court, any "obscenity" prosecution induces self-censorship, but RICO's enhanced sanctions, by themselves, do not implicate vagueness concerns.

RICO's application to extortion was challenged in 1994 in National Organizations For Women, Inc. v. Scheidler.anti-abortion movement demonstrators argued that because RICO's legislative history indicated that Congress narrowed it in 1970 to avoid its application to antiwar protests it was improper to apply it to similar demonstrations today; courts, they argued, were turning "extortion" under RICO into "coercion." For example, the gay activists in 1988 who entered St. Patrick's Cathedral in New York City sought not the church's building, but a change in the church's policy. This raised the possibility that Dr. martin luther king, jr. , the civil rights advocate, could be equated with John Gotti, the Mafia don. Unfortunately, the Court held in Scheidler that this legislative history argument was inconclusive, so no per se objection existed to using RICO against political demonstrators. The Court did not reach the "extortion" argument. Courts, therefore, continue to use the "extortion/coercion" theory to attack political demonstrations where the protestor's conduct goes beyond picketing. Instead of a minor trespass, the conduct is escalated into "racketeering."

Sadly, RICO litigation today is also conducted contrary to the earlier free speech teachings of the Court in Watts v. United States (1969) and NAACP v. Claiborne Hardware Co. (1982). In Watts, the Court distinguished between "true threats" and "political hyperbole." An antidraft protestor in 1966 who "threatened" to shoot President lyndon b. johnson was found not guilty of threatening the President; his remarks were found to be "crude and offensive" but reflecting "political opposition," not "criminal intent." That distinction is ignored today when anti-abortion groups publish posters identifying abortionists as "war criminals." Here, too, there is a chilling effect on free speech.

Similarly, in Claiborne Hardware Co., the Court held that where violent and nonviolent conduct were mixed in a civil rights boycott, the nonviolent conduct was free speech and could not be made the basis of suit. Only damage caused by unprotected conduct could be remedied, and individual liability had to be based on individual, not group, conduct unless the individual joined the group with the intent to further its unlawful objectives. To protect free speech, the Court required pleading, instructions, and jury verdicts to separate protected from unprotected activity.

Nevertheless, when Scheidler was tried in 1998, the jury assessed $85,926 for the security costs of clinics for anti-abortion demonstrations. Scheidler was not connected by the court to any conspiracy to murder or commit arson. The jury was, however, permitted to make generic findings and return its verdict in a lump sum, despite Clairborne; it was not required to apportion the costs between Scheidler's protected and unprotected conduct, nor between his conduct and that of others who might murder doctors or burn clinics. Similarly, in Northeastern Women's Center v. McMonagle (1989), an earlier decision of a federal appellate court, although $887 of injury was done by an unidentified party to equipment during a sit-in, all of the defendants, who had engaged in picketing over nine years, were held liable under rico for treble damages ($2,661) and $65,000 in attorney's fees. such indiscriminate jury verdicts and awards of disproportionate legal fees chill free speech.

Heavy-handed litigation under RICO against protest movements was not what Congress had in mind in 1970. If this kind of litigation is to be allowed, it ought to be conducted with a scrupulous concern for free speech. If not, RICO threatens free speech.

G. Robert Blakey


Blakey, G. Robert and Roddy, Kevin P. 1996 Reflections on Reves v. Ernst & Young. American Criminal Law Review 33: 1345, 1657–1675.

La Fave, Wayne and Scott, Austin 1986 Criminal Law, 2nd ed. St. Paul, Minn.: West Publishing Co.

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Free Speech and Rico

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