civil disobedience

December 4, 2002 12:57 PM

National Organization for Women v. Scheidler Is being heard by SCOTUS today. The case may decide whether non-violent civil disobedience can be prosecuted under federal RICO laws. Here's the ACLU's amicus brief. And comments from NRO's Rod Dreher.
posted by Ty Webb (26 comments total)

non-violent civil disobedience

uh, no, that's not what this is about. let's try again without the misrepresentation:

"The complaint sets forth a long list of illegal and/or harassing activities allegedly committed in furtherance of defendants' goal of closing down abortion clinics around the country. Those activities include:

" extortion; physical and verbal intimidation and threats directed at health center personnel and patients; trespass upon and damage to center property; blockades of centers; destruction of center advertising; telephone campaigns designed to tie up center phone lines; false appointments to prevent legitimate patients from making them; and direct interference with centers' business relationships with landlords, patients, personnel, and medical laboratories.


"The Seventh Circuit, apparently, did not see the complaint as presenting the same threat to First Amendment interests that defendants perceive. In the Seventh Circuit's view:

" the complaint does not attempt to bar all anti-abortion activities. Peaceful picketing, debate, meetings, prayers, and a host of other forms of peaceful protest are protected by the First Amendment. The complaint seeks relief from criminal and tortious activities such as trespass, clinic invasion, vandalism, extortion, and tortious interference with business relationships."
posted by badstone at 1:41 PM on December 4, 2002

badstone- relax, I wasn't trying to misrepresent anything. As Dreher (someone who I usually consistently disagree with) points out, in NOW's view, blocking a clinic doorway (and, by extension, staging a sit-in at a segregated lunch counter) is an act of violence, and a "direct interference" in a "business relationship". The gist of the ACLU's argument is that clear standards should be drawn between violent and non-violent protest, which this case does not.
posted by Ty Webb at 1:50 PM on December 4, 2002

I agree that any violent (or even threatening to be violent) forms of protest should be prosecuted with the harshest means possible if it puts people at risk.

That said, Scheidler doesn't necessarily control those who would make threats, physically indimidate/harass clinic workers, tie up phone lines, and vandalize clinics.

There are, IMHO, clear differences between anti-abortion protesters and the black civil rights protesters who sat down at "whites-only" lunch counters (after all, in Georgia, had the Woolworth's simply served those sitting at the lunch counter, nothing would have happened. Instead they called the police). The anti-abortion protesters aren't getting arrested for trying to make the clinic serve them, they're getting arrested for trying to shut down the clinic.

That said, if even a hint of overlap between standard non-violent civil-disobedience and the anti-abortion protester tactics was used to file RICO charges against the former, as well as the latter, it will be a great defeat for people everywhere. There are, no doubt, a fair number of insidious individuals within the pro-life movement, but I wouldn't want the full force of the anti-mafia laws to even have the opportunity to come down hard on your run-of-the-mill protestors.
posted by deanc at 2:00 PM on December 4, 2002

There's a world of difference between passively occupying a space and aggressively threatening a person. I might have been less suspect of your presentation if you'd included NOW's side of things or at least used the ACLU's independent review as your primary link rather than a link to the pro-lifers.
posted by badstone at 2:01 PM on December 4, 2002

I agree that any violent (or even threatening to be violent) forms of protest should be prosecuted with the harshest means possible if it puts people at risk. That said, Scheidler doesn't necessarily control those who would make threats, physically indimidate/harass clinic workers, tie up phone lines, and vandalize clinics.

There are, IMHO, clear differences between anti-abortion protesters and the black civil rights protesters who sat down at "whites-only" lunch counters (after all, in Georgia, had the Woolworth's simply served those sitting at the lunch counter, nothing would have happened. Instead they called the police). The anti-abortion protesters aren't getting arrested for trying to make the clinic serve them, they're getting arrested for trying to shut down the clinic.

That said, if even a hint of overlap between standard non-violent civil-disobedience and the anti-abortion protester tactics was used to file RICO charges against the former, as well as the latter, it will be a great defeat for people everywhere. There are, no doubt, a fair number of insidious individuals within the pro-life movement, but I wouldn't want the full force of the anti-mafia laws to even have the opportunity to come down hard on your run-of-the-mill protestors.
posted by deanc at 2:02 PM on December 4, 2002

There's a world of difference between passively occupying a space and aggressively threatening a person.

Agreed, and that's a distinction that this case doesn't seem to make.

I might have been less suspect of your presentation if you'd included NOW's side of things or at least used the ACLU's independent review as your primary link rather than a link to the pro-lifers.

Yeah, okay, so next time just make your point without imputing motives, okey dokey?
posted by Ty Webb at 2:07 PM on December 4, 2002

Ty Webb, when it comes to politically-oriented FPPs on MeFi, it's all about imptuing motives on the part of the original poster. Where have you been over the past few days? :)
posted by deanc at 2:19 PM on December 4, 2002

that's a distinction that this case doesn't seem to make.

You're kidding right? This is exactly my point. If you look at NOW's side, or even read the ACLU presentation, you'll see that is exactly what this case is about. I'll try again:

"The complaint sets forth a long list of illegal and/or harassing activities allegedly committed in furtherance of defendants' goal of closing down abortion clinics around the country. Those activities include:

extortion; physical and verbal intimidation and threats directed at health center personnel and patients; trespass upon and damage to center property; blockades of centers; destruction of center advertising; telephone campaigns designed to tie up center phone lines; false appointments to prevent legitimate patients from making them; and direct interference with centers' business relationships with landlords, patients, personnel, and medical laboratories."

More form NOW here.
The letter to the Sun Times and the statement from Patricia Ireland express their point.
posted by badstone at 2:27 PM on December 4, 2002

Deanc, were you trying to passively-protest something by posting the same large comment twice? Just trying to impute your motive! ;)
posted by Pollomacho at 2:27 PM on December 4, 2002

He was just making a point about how political/social discussion works on MeFi.
posted by Yelling At Nothing at 2:31 PM on December 4, 2002

It is good to know that our Supreme Court will use their good judgement once again. I have not much faith in that court any longer. But there is a precedent: separate but equal facilities for blacks is (was) fair and just at one time.
posted by Postroad at 2:31 PM on December 4, 2002

Much as I disagree with the so-called right-to-life people, I have to admit that if you look at it from the perspective of the organization they're trying to shut down, it looks the same - "We're just trying to get some business done, but these goddam [x] keep trying to get us shut down." Discrimination against blacks was legal back then (Jim Crow laws and such) which is why the protest was happening in the first place, so what would they have thought if pro-segregation people tried to get black civil rights protestors busted on racketeering charges? Today, abortion is legal, and people that believe that abortion is as bad now as segregation was then are trying to do something about it. I don't agree with them, but what about the next group of people practicing civil disobedience, the ones I do agree with? It's a slippery slope.
posted by RylandDotNet at 2:32 PM on December 4, 2002

One more time - it's not a slippery slope, it's not about Free Speech, it's not about peaceful acts of civil disobedience. It's about organized acts of violence and threats of violence. To equate the behavior of the civil rights movement with PLAN's behavior is an insult.
posted by badstone at 2:40 PM on December 4, 2002

deanc: as an aside, RICO can now only be called "anti-Mafia" ironically. Properly it should be called the "law-enforcement corruption act", in that it encourages police at all levels to first consider the profitability of their actions, with arrest of people secondary to the seizure of money and other valuables.
posted by kablam at 2:43 PM on December 4, 2002

To me, the ACLU's approach seems the most sensible. Obviously, the protesters ought to be free to protest their hearts out. Protesters who become violent or push beyond the bounds of protected First Amendment speech ought to be smacked down, but using RICO to do it is a poor choice of tactic. RICO is already overreaching and draconian legislation and doesn't need its influence expanded by the Supreme Court. Since there are clearly illegal behaviors in question (threatening physical harm, etc.), it's not really necessary. And since organizations like PLAN and Operation Rescue have no profit motive, having their assets forfeited really isn't going to stop them.

For NOW to refer to Scheider and his ilk as "mobsters" is disingenuous. Whatever anti-abortion activists are, they clearly aren't mobsters. Using these sorts of tactics is only going to lessen NOW's support from moderates in the long run. And it certainly isn't going to make the religious right go away.
posted by vraxoin at 3:07 PM on December 4, 2002

To equate the behavior of the civil rights movement with PLAN's behavior is an insult.

badstone- Leave aside your righteous indignation for a moment: can you make a distinction between equating and comparing? Much of NOW's case is built upon the claim that the protesters were interfering in a business transaction (that is, the getting of an abortion), an approach which could have been used by Woolworth's against civil rights demonstrators had RICO been in affect at the time. Am I equating the cause of civil rights with the anti-abortion cause? Not at all, but I am saying that one legal avenue which NOW has unfortunately chosen could conceivably have been used against those civil rights protesters.
posted by Ty Webb at 3:15 PM on December 4, 2002

...but I am saying that one legal avenue which NOW has unfortunately chosen could conceivably have been used against those civil rights protesters.

And more importantly, against future civil rights protestors, thus the idea of "slippery slope".
posted by RylandDotNet at 3:20 PM on December 4, 2002

Am I equating the cause of civil rights with the anti-abortion cause?

I didn't say 'cause', I said 'behavior', as in methodology. PLAN uses violence and threats as part of their protests, MLK did not.

Re: the "PLAN are not mobsters" statement - they are mobsters in the sense that this is organized crime. PLAN is an organization that orchestrates violent assaults, threats, and terror campaigns against women and their doctors.

RICO is being invoked here because NOW wants more than just reparations for individual assaults, they want to take down the organization of criminals that orchestrated those assaults.
posted by badstone at 3:50 PM on December 4, 2002

RICO is being invoked here because NOW wants more than just reparations for individual assaults, they want to take down the organization of criminals that orchestrated those assaults.

That's fine, but beside the point. NOW is also pursuing charges of "interference" in a "business relationship," which, if successful, could be used against legitimate non-violent protests, such as sit-ins and marches.
posted by Ty Webb at 4:34 PM on December 4, 2002

Only to the extent that the "interference" goes beyond what the first amendment protects. the first amendment protects the methods you mention, but it doesn't protect violence, and it certainly isn't NOW's aim to attack free speech.

If I distort what the newspapers are saying to the extent that they are distorting what NOW is saying, you could make this extreme (and extremely lame) 9-11 type analogy: If what PLAN does constitutes "free speech," then the twin towers and pentagon attacks should be protected by the first amendment as well. (Unfortunately, I think people actually are making that analogy already...)

Somewhere there is a line between speech and violence, and this case may find it.
posted by badstone at 5:15 PM on December 4, 2002

If you wanted to ask me. (Which nobody did. But I'll chime in anyway.)

I don't think that it's possible to protest when what it is that is being protested is a cornerstone of the establishment under which both anti-abortion protester and American citizen with A Choice live under. With or without the anti-abortion protesters in attendance, the patient, her doctors, the doctor's staff all live with some semblance of fear, not only from what may befall them at the hands of rabid right wing christians, but a perceived tenuousness of the upholding of the Constitution itself. By which I mean, there are many holding public office (read establishment) who are opposed to a "woman's right to choose". In fact, those very representatives will more or less control the future of the Constitution come January. Yet in light of all this, the protesters persist. Why? The rightist establishment has always sided with them, if not actually creating the environment in which the bored, under-utilized christian-soldier, with nothing to do (read "shut-in" or "outreach" in your church bulletin) can astir his idle hands for the good work of the LORD.

In other words, these aren't real protesters. They're bored people running errands for the christian-right political/economic establishment. They have for decades harrassed individuals for the sake of an establishment that rewards them with nothing. True protesters protest the establishment and seek to include the individual in their fight not the other way around. These people are true-believing soldiers and nothing else.

It's a shame this topic comes up now in these discriminatingly conservative days, as protests against the establishment are urgently necessary to preserve our Constitutional rights.
posted by crasspastor at 6:52 PM on December 4, 2002

Yeah, okay, so next time just make your point without imputing motives, okey dokey?

Actually Ty, for whatever it's worth, I'm not certain what badstone was talking about - seemed as though the general views of the issue (in broad strokes) were in the links, and the comment itself had absolutely none of the snarkiness so many political FPP's lead with. (Only saying this because I complain a lot about legitimate issues of discussion being turned into horrible threads simply because they are introduced with terrible, one-sided, initial posts - and it seemed worth it to praise something that was done right).

I personally don't know the answer to this question. On the one hand, something has to be done about the sometimes militant edge that protests occasionally reach - where life, limb, and property are threatened. On the other hand if NOW wins, the precedent will likely hurt NOW and some of it's affiliated groups worse than those they are winning against.

This is a bad issue to simply polarize into left and right - because regardless of what is decided, it is likely to both help and hurt people on both the left and the right.

I personally am somewhat vehemently pro-choice, have served on the boards of clinics, and have seen really nasty emotional scars left by protesters who scream and women comning into clinics. I also, however, think NOW is, in this instance (and many others), doing considerably more harm than good.
posted by MidasMulligan at 7:16 PM on December 4, 2002

I'm not particularly enthusiastic about the right to abortion (although not rabidly pro-life either) but I can kind of where NOW is coming from here. Under the current version of the Constitution, abortion is a fundamental right protected under the 14th amendment. The protestors are exercising another fundamental right -- free speech -- specifically to make it difficult for women to exercise their right to have an abortion. Yes, they are alleged to have done other stuff that seems clearly illegal, but let's put that aside for a moment. Huge, bellicose anti-abortion demonstrations near clinics are likely to intimidate, and thus unfairly deter, many reasonable women from exercising their right to abortion even if the protesters stay well within Constitutionally-protected limits. Basically, the two rights cannot fully co-exist with each other and I think that to the extent that they can't coexist, speech rights have to yield to the right to undergo perfectly legal medical procedures.

If the argument that rights to bodily autonomy should trump speech rights don't float your boat, one could also argue that the fact that the 14th amendment came later in time means that it trumps the 1st to the extent that they conflict.

I think one could distinguish limitations on free speech here from a more traditional protest against, say, Wal-Mart, by limiting this sort of balancing to cases where there is a constitutionally protected right on the other side. Wal-Mart doesn't have a constitutional right to sell stuff and consumers don't have a constitutional right to buy stuff from Wal-Mart, so there would be no balancing between the free speech rights of the protesters and the disruption to Wal-Mart's business. Protesters win automatically, as long as they don't do anything illegal.
posted by boltman at 8:38 PM on December 4, 2002

BTW, yes, Mefi lawyers, I know that there is no state action when private protestors interfere with constitutional rights, so, obviously, implicit in my idea is the reworking of the state action doctrine to make the government liable for failure to protect rights as well as positive violations. But it's not really that far-fetched.
posted by boltman at 8:45 PM on December 4, 2002

I think it should be remembered that those who were involved in the civil rights protests went to jail. Those sit-ins were illegally disrupting business, and they were prosecuted under existing laws (although we now see the laws as being discriminatory).

Civil disobedience has a long history, and is a valid form of protest. However, it does mean breaking laws. It seems many protesters today (of all political stripes) think that because they are protesting they should be absolved of all crimes committed.
posted by infinity-bound at 7:37 AM on December 5, 2002

But, there's a difference between protest (for example, expressing disagreement or outrage over something by gathering and yelling) and interference (expressing that outrage by having a mob camp outside a doctor's house, block the door of his or her business, or lay down in the parking lot to prevent vehicles coming in or out.)

Civil disobedience has its place - with the understanding, as infinity-bound pointed out, of the consequences of such disobedience. On the flip side of this discussion, however, is the right to protest. You can arrest protestors, even peaceful ones, on anything from loitering and littering to resisting arrest, and make it stick. Permits are useless; it's an amusing concept to make folks ask permission to disagree.

Using RICO as a mechanism for dealing with interference is like shooting ducks with a howitzer. IMHO, more time should be spent defining the differences between protest and interference (or whatever terms you'd like to use.) Once that's done, interference is easily handled using existing laws, and both civil disobedience and peaceful protest are preserved.

But, as usual, I could be oversimplifying the issue. Life vs. choice almost shouldn't enter into the argument. There are a lot of other, similarly diametrically opposed groups with much less emotional and social baggage that could be used as test cases for the discussion; it's just that the abortion fracas has become, once again, front page news.

(BTW, I'm obviously pro-choice - I'm also a militant agnostic, and pro-life forces beliefs on people who may not want them. Besides, you don't see pro-choice demonstrators shooting priests or barricading churches.)
posted by FormlessOne at 8:33 AM on December 5, 2002