Hearing before the Subcommittee on Crime
Committee on the Judiciary
House of Representatives
Civil RICO Clarification Act of 1990
Testimony of Professor G. Robert Blakey
July 17, 1998
Rayburn House Office Building
Table of Contents
1. Disclosure Statement 2
2. Summary 3
3. Statement 4
4. Curriculum Vitae 14
5. Proposed Legislation 20
6. Appendix on "Extortion" 29
Consistent with House Rule XI, I have no disclosure to make of a federal grant, contract, or subcontract to me or any entity in connection with my activities at the Notre Dame Law School. Needless to say, the University of Notre Dame itself may be the recipient of unrelated federal grants, contracts or subcontracts of which I am unaware.
In 1970, Congress passed the Racketeer Influenced and Corrupt Organization Act. The legislative history of the Act shows that Congress did not intent that the statute be used to chill First Amendment protected activities. Court decisions now extend "extortion" within the statute beyond its common law meaning of "to get" to mean "to deprive". Those decisions should be reversed. In addition, legislative guidelines need to be set consistent within the First Amendment to assure that any litigation brought where First Amendment protected activity is present is tried consistent with that Amendment.
Should RICO, the federal Racketeer Influenced and Corrupt Organizations Statute (18 U.S.C. §1961 et.seq), be applied beyond a John Gotti, the gangster, or Charles Keating, the savings-and-loan kingpin, to a Mahatma Gandhi or a Dr. Martin Luther King Jr., those who engage in political or social protest? I thought not when, as counsel to Sen. John McClellan, D-Ark., RICO's chief sponsor in the Senate, I drafted the 1970 act. I also advocated as much before the Supreme Court in 1994, when I argued in behalf of the respondents in NOW v. Scheidler, 510 U.S. 249 (1994). My arguments, however, failed to persuade the Court. The untoward consequences of the Court's decision are now playing out in Chicago, where a jury just returned a civil verdict for $85,926 under RICO against Scheidler and two others, a verdict mistakenly applauded in an editorial by the New York Times on April 23, 1998, col 1, p.A20.
On April 11, 1986, three ministers and Joseph Scheidler, a former Benedictine monk, went to the Delaware Women's Health Organization in Wilmington, Delaware, to tell Cathy Connor, its administrator, that they would be demonstrating at the clinic the next day. Assuming from her Irish surname that Connor was a fallen away Catholic, Scheidler warned her, "Get out of the abortion business. Someday you will have to answer to Almighty God, who has a commandment: 'Thou shall not kill.'" To be sure, his comments were a "threat" of sorts, but hardly of this world, unless you are prepared to make God a coconspirator in an illicit plot. Following the protest, Scheidler was arrested, found guilty of second-degree trespass, not guilty of harassment, and was given a small fine, but commended by the judge for his non-violent approach. In the spring of 1987, Connor left her job with the clinic. The Chicago verdict is radically rewriting the 1986 result, a rewriting that does not bode well for free speech in America.
Not satisfied with the normal outcome of criminal process, the clinic, along with another from Milwaukee and the National Organization for Women, in a strategy devised by Ms. Patricia Ireland, then a Miami litigator, filed suit in federal court in Chicago, Illinois, under RICO. Scheidler was accused of masterminding a criminal conspiracy to shut down all abortion clinics in the United States. In particular, Scheidler was accused of threatening Connor and causing her to give up her job as part of that national conspiracy. The two abortion clinics sought an injunction, treble damages and attorneys fees, as RICO properly authorized against mobsters or swindlers. The target of the suit: all persons and organizations that demonstrate and allegedly commit acts of trespass and vandalism at clinics. (The suit also charged a conspiracy to murder, to kidnap, and to commit arson, charges that the federal judge in Chicago was to later dismiss as totally lacking in evidence.) The clinics alleged that the demonstrations constituted "extortion" because they "threatened" employees, doctors and patients "to give up" participating in or having abortions.
The District Court dismissed NOW's suit, explaining that "an economic motive [had to be charged, that is,] . . . some profit-generating purpose . . . [had to] be alleged in order to state a RICO claim." 765 F.Supp 937, 941 (N.D.Il. 1991). The Seventh Circuit Court of Appeals in Chicago affirmed. 968 F.2d 613 (7th Cir. 1992). The Supreme Court granted review and reversed, holding that RICO does not require proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose. 510 U.S. 249 (1994). The Court, however, declined to address First Amendment issues relating to the proper construction of RICO or to consider the scope of "extortion" as applied to demonstrations, though I vigorously argued both points. It left those issues until another day. 510 U.S. at 253 n2 and 262 n6. Sadly, that day is now upon us.
Congress enacted RICO as Title IX of the organized Crime Control Act of 1970; it was drafted to deal with "enterprise criminality," that is, patterns of specified kinds of violence (such as murder, extortion, arson and the like), the provision of illegal goods and services (such as gambling, drugs and prostitution), corruption in labor or management relations or in federal or state governments, and commercial fraud by, through or against various types of licit or illicit organizations -- in the "upper-world" or the underworld. On the criminal side, RICO authorizes up to 20 years' imprisonment -- or life imprisonment if death occurs -- substantial fines, and comprehensive criminal forfeitures; on the civil side, it authorizes governmental injunctive relief, private suits for injunctions, treble damages, and attorneys fees.
At first, the Department of Justice moved slowly to use RICO. Today, it is the prosecutor's tool of choice against sophisticated forms of crime. Roughly 39 percent of the Department's criminal prosecutions under RICO concern organized crime, while 48 percent concern white collar crime. Thirteen percent fall into other categories, like terrorist white-hate or anti-Semitic acts. The Department is also using civil RICO actions in an effort to break the hold that organized crime has on certain unions, including the Teamsters. RICO claims in private civil litigation began appearing around 1980; they are now filed at the rate of about 65 per month -- out of approximately 23,000 civil suits filed monthly in the federal courts. About 60 percent of these cases are filed in connection with other federal claims in the general area of commercial fraud.
Consistent with its current practice of avoiding broad pronouncements, the Supreme Court's opinion in Scheidler was narrowly focused. Because it concluded that RICO's statutory language was unambiguous, it refused to consider the legislative history that might have shed light on whether the law was intended to reach activities not economically motivated. Had the court followed the approach it followed in the year RICO was enacted -- by looking to both the text and its legislative context to ascertain congressional intent, and writing broadly to explain and give guidance in future cases -- the decision might well have gone the other way.
When Sen. McClellan proposed RICO in 1969, Sens. Philip Hart, D-Mich., and Edward Kennedy, D-Mass., objected to its application "beyond organized crime." They were concerned that the administration of President Richard M. Nixon would improperly use the statute against the demonstrators opposed to the Vietnam War. In particular, Kennedy pointed to the sit-ins at Army recruiting centers and draft-card burnings. The American Civil Liberties Union, too, objected, citing the "massive anti-war demonstrators at the Pentagon" and "the campus disorders which rocked Columbia University," each of which went far beyond constitutionally protected conduct. The senators deep concern was not simply to exclude from RICO constitutionally protected conduct, that could not be included in the bill in any event: They did not want RICO's severe criminal and civil sanctions to be used at all in the context of demonstrations--of any type. They focused on the breadth of state offenses that were then incorporated into the bill's definition of racketeering activity: "any act involving the danger of violence to life, limb, or property."
To meet their objections, McClellan told me to strike the generic definition and inserted a list of specific offenses. I did what I was told. No offense remotely related to trespass, vandalism or any other aspect of a civil disturbance that might stray beyond constitution limits was on the list that I drafted in the bill. "Extortion" was included, but its meaning is limited; the definition of "extortion" -- "obtaining property by fear" -- was first used in federal law in 1947; it was taken from New York law, drafted as part of the Field Code of 1865, which was, in turn, taken from the early English common law; it emphasized -- from its earliest beginnings -- "obtaining" property from someone ("to get"), not "depriving" someone of property ("to give up"). That meaning, too, was reflected in well-established New York and federal jurisprudence, of which I was fully aware as a former criminal law professor and federal prosecutor in the Kennedy Administration. I knew what I was doing. My view of "extortion", moreover, is not unique to me. See Craig M. Bradley, Now v Schieidler: RICO meets the First Amendment, Supreme Court Review 1994 129 (1995).
No knowledgeable statutory drafter in 1969 would have believed that "to protest" could be equated with "to extort." A world of legal difference exists, in short, between an organized-crime boss who uses a mob-dominated union to throw a picket line around a restaurant to extract an unlawful payoff from a hapless restaurateur and a college student who sits in a draft board office to protest the nation's unwise foreign policy. Similarly, such common-law offenses as "riot" ("an assemblage of three or more persons to do an unlawful act, when such act is done in a violent or tumultuous manner") and the modern statutory offense of "coercion" ("forcing another to act against his or her will") were consciously excluded from the list of federal and state offenses to preclude any possibility that RICO might be used against social or political demonstrations.
The ACLU acknowledged in a statement inserted in the Senate debates after McClellan had me narrow the bill to respond to Kennedy's objections, with which he was in complete agreement, that RICO's provisions had been "substantially revised so as to eliminate most of the previously objectionable features." While the ACLU continued to oppose the bill on other civil-liberties grounds, the Union no longer feared that RICO might be used against demonstrators. All of us who were closely involved in drafting the legislation -- even those opposing it -- believed that because of the changes I made at McClellan's directions, RICO posed no danger to demonstrators, even when they exceeded First Amendment-protected activity. Had anyone suggested that the bill might go that far -- say even to affect labor union strikes -- I know what would have happened to it; the bill would have been referred, not only to the Judiciary Committee, where I worked under McClellan, but also to the Labor Committee, and it would have never seen the light of the day. Nor would McClellan have sponsored it. Nor would I have drafted it.
Scheidler will, of course, appeal the Chicago verdict, attacking the lower courts unwise expansion of the concept of "extortion." The Times' editorial thought that the jury verdict against Scheidler had been handled "with great care." In fact, the jury, contrary to NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), was not required by the judge to differentiate increased security costs attributable to lawful as opposed to unlawful conduct by Scheidler as well as costs related to murders, kidnaping, or arson for which Scheidler was not responsible. The jury returned a lump sum-a practice that cannot be squared with The First Amendment. Until the applicability of RICO to protests is definitively decided, however, this kind of litigation will unconstitutionally chill political and social protests, of all types, not just anti-abortion demonstrations. The jury's verdict establishes no bright line for distinguishing when "protected picketing" crosses over into "unprotected pushing" or "protected yelling" turns into "unprotected threats." Obviously, few who desire to bring about meaningful social or political change will lightly risk their jobs, homes or pocketbooks to join a group of protesters if they may be named in a RICO suit based on "extortion", forced to submit to extensive civil discovery, and have to pay the huge attorneys fees and costs generated by aggressive litigators. Even if the protesters ultimately win, as they ought, the stakes are too high; given the vagaries of modern litigation, they might lose. Such a weapon of terror against First Amendment freedoms was not what I was told to design when I was counsel to McClellan. Had I been, I would have refused. It is a legal outrage that at the behest of NOW that the federal judiciary is rewriting RICO in a fashion that the Congress, after careful consideration, specifically refused in 1970.
Those who love the First Amendment ought not rest so easily at night in light of what NOW has so wrongly wrought.
Updated April 20, 1998
G. ROBERT BLAKEY
Present Address: 1341 East Wayne Street, North
South Bend, IN 46615
Telephone: Office: 219-631-5717
Birthdate: January 7, 1936
Birthplace: Burlington, North Carolina
Marital Status: Married, eight children
College: University of Notre Dame
Notre Dame, IN 46556
A.B. degree (with honors)
Law School: Notre Dame Law School
Notre Dame, IN 46556
J.D. degree, June 1960
SCHOLARSHIPS AND SELECTED AWARDS:
Dean's List: 1955, 1956, 1957
Recipient of John J. Cavanaugh Law Scholarship,
Notre Dame Law School, 1957.
Associate Editor, Law Review, 1959-60, Volume XXXV.
Rank in law school class: 2nd
Phi Beta Kappa
Order of the Coif
Employed, United States Department of Justice, Attorney General's Honor Program, 1960.
Special Attorney, Organized Crime and Racketeering section, Criminal Division, United States Department of Justice (August 1960 to June 1964).
Liaison with and direction of racket investigations by Federal Bureau of Investigation, Internal Revenue Service, and other federal investigative agencies; grand jury, trial and appellate work, legislative drafting and Congressional liaison.
(Upon leaving the Department, then Attorney General Robert F. Kennedy wrote Dean Joseph O'Meara of the Notre Dame Law School in my behalf:
"I have personally observed Bob at the many organized crime meetings I have held in my office and have noticed that he knows his cases and subjects thoroughly and approaches his job here with imagination, thoroughness and good judgment. Because of my interest in the Organized Crime Program I have tried to staff it with the best attorneys in the Department. Bob Blakey, in my judgment, fits this description."
My immediate supervisor, Mr. William G. Hundley, Chief of the Organized Crime and Racketeering Section, wrote Dean O'Meara:
"In my judgment, Mr. Blakey has perhaps the finest analytical mind of the some competent lawyers in this Section. He is a true legal scholar; he is diligent; he exercises sound judgment; he works well and easily with his associates and is a very fine person. I have been able to assign him some of the most important and complex cases and legal problems which we have to deal with in this section. He has executed all of these assignments in the most competent manner, exhibiting mature judgment far beyond his years.
"Mr. Blakey at work, socially and indeed at almost all times shows such a keen interest in the law and in discussing legal problems, which he does with clarity, conciseness and with a knack of getting right to the heart of the problem, that I am certain he would make an excellent teacher of the law.")
Assistant Professor of Law, Notre Dame Law School, June 1964; Professor since May 1967; on academic leave, January, 1969 to January 1971.
Professor of Law, Cornell University Law School, August 1973 to July 1980.
Professor of Law, Notre Dame Law School, August 1980.
William J. and Dorothy O'Neill Professor of Law, October, 1985.
SUBJECTS AND ACTIVITIES:
Criminal Law and Procedure
Seminar on Organized Crime
Federal Criminal Law
Federal Criminal Procedure
Special Consultant on Organized Crime, President's Commission for Law Enforcement and Administration of Justice (1966-67).
(Mr. James Vorenberg, now professor of law at the Harvard Law School, then Executive Director of the President's Crime Commission, wrote Dean O'Meara at the time of my appointment as full professor:
"As you probably know, Professor Blakey served as a consultant to this Commission's Organized Crime Task Force, particularly on the problems relating to electronic surveillance. He did an excellent job in carrying out the assignment he was given by the Task Force. His memorandum of a proposed statutory formulation is clear, powerful and imaginative exposition. Both on the basis of this memorandum and my many dealings with Professor Blakey in the last six months, I have been most favorably impressed by his ability and insight.")
Reporter, American Bar Association Project for Minimum Standards in Criminal Justice, Electronic Surveillance (1967-68).
Special consultant, Judiciary Committee, United States Senate, Title III, P.L. 90-351 "Omnibus Crime Control and Safe Streets Act of 1968." (1967-68)
(Senator John L. McClellan, in May of 1968, wrote me in reference to the passage of the Omnibus Crime Control and Safe Streets Act of 1968:
"The adoption of Title III (on electronic surveillance) by a vote of 68-12 was most gratifying to all who worked with us, and was due in no small measure to the tremendous contribution which you made. Your preliminary work in helping to draft Title III and your sound advice, counsel, and assistance, both in committee and on the floor of the Senate during our deliberations on the bill, proved invaluable.")
Special Consultant, National Commission on the Reform of the Federal Penal Law (1968) (conspiracy).
Counsel before the United States Supreme Court, Berger v. New York, 388 U.S. 44 (1967), for the Attorneys General of Massachusetts and Oregon and the National District Attorneys Association as Amici.
Member, National Commission on the Review of Federal and State Law Relating to Wiretapping and Electronic Surveillance, 1974-75.
Member, Task Force on Legalized Gambling, Twentieth Century Fund, 1974.
Special Consultant, Commission on the Review of National Policy Toward Gambling, 1974-75.
Member, Task Force on Organized Crime, National Advisory Committee on Criminal Justice Standards and Goals, 1976.
Counsel before the United States Supreme Court, Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985), for the Attorneys General of a number of States amici.
Counsel for Amicus before the United States Court. Agency Holding Co., 483 U.S. 143 (1987).
Counsel before the United States Supreme Court, Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1988), for the National Association of District Attorneys as amicus.
Counsel before the United States Supreme Court, H. J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), for the Attorneys General of a number of States as amici.
Counsel for Amicus before the United States Supreme Court, Tafflin v. Levitt, 493 U.S. 455 (1989).
Counsel before the United States Supreme Court, Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992).
Counsel for Amicus before the United States Supreme Court, Reves v. Ernest & Young, 507 U.S. 170 (1993).
Counsel before the United States Supreme Court, NOW v. Scheidler, 510 U.S. 249 (1994).
Chief Counsel, Subcommittee on Criminal Laws and Procedures, Committee on the Judiciary, United States Senate (January 1969 to September 1973). (Chairman: Senator John L. McClellan).
Chief Counsel and Staff Director, House Select Committee on Assassinations, U. S. House of Representatives (June 1977 to April 1979). (Chairman: Congressman Louis Stokes).
Special Staff Counsel, Judiciary Committee, United States Senate (June, 1985 to December, 1986). (Ranking Minority Member: Joseph R. Biden, Jr.)
Consultant, Judiciary Committee, United States House of Representatives (December, 1987 to December, 1988).
MAJOR LEGISLATION AND ACTIVITIES OF SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES:
P.L. 91-39, "National Commission on Reform of Federal Criminal Laws" (1969).
P.L. 91-452, "Organized Crime Control Act of 1970" (1970).
P.L. 91-664, "Omnibus Crime Control Act of 1970" (1970).
Hearings on recommendations of the National Commission on the Reform of Federal Criminal Laws (1971-72).
Introduction in the Senate of S.1, "The Codification, Revision and Reform Act of 1973."
P.L. 93-83, "Crime Control Act of 1973" (1973).
18 U.S.C. § 1346 (McNally v. United States, 483 U.S. 350 (1987) set aside).
P.L. 102-526, "President John F. Kennedy Assassination Records Collection Act of 1992" (1992).
"Welfare and Pension Plans Disclosure Act Amendments of 1962," 38 Notre Dame Law, 263 (1963).
"The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California" 112 U. of Pa. Law Rev. 499 (1964).
"Sex Pornography and Justice," 41 Notre Dame Law 1055 (1966).
"Aspects of the Evidence Gathering Process in Organized Crime Cases," 80 Task Force Report: Organized Crime, President's Commission on Law Enforcement and Administration of Justice (1967).
"Local Law Enforcement Response to the Challenge of Organized Crime Cases, President's Commission of Law Enforcement and Administration of Justice" (1967) (Restricted Publication).
"A Proposed State Electronic Surveillance Control Act," 43 Notre Dame Law, 657 (1968) (with Hancock).
"The Organized Crime Control Act (S.30) or Its Critics: Which Threatens Civil Liberties?" 46 Notre Dame Law 55 (1970) (with McClellan).
"Codification Reform and Revision: The Challenge of a Modern Federal Criminal Code," 1971 Duke Law Journal 663 (with McClellan).
"Criminal Redistribution of Stolen Property: The Need for Law Reform," 74 Mich. Law Rev. 1511 (1976) (with Goldsmith).
"The Federal Law of Gambling," 63 Cornell Law Rev. 923 (1978) (with Kurland).
"Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts - Criminal and Civil Remedies," 53 Temple Law Quarterly 1009 (1980) (with Gettings).
"The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg," 58 Notre Dame Law Rev. 237 (1982).
"Gaming, Lotteries, and Wagering: The Pre-Revolutionary Roots of the Law of Gambling," 16 Rutgers Law Journal 211 (1985).
"Equitable Relief Under Civil RICO: Reflection on Religious Technology Center v. Wallersheim: Will Civil RICO Be Effective Only Against White-Collar Crime?", 62 Notre Dame L. Rev. 526 (1987) (with Cessar).
"An Analysis of The Myths That Bolster Efforts to Rewrite RICO and The Various Proposals For Reform: "Mother of God--Is This The End of RICO?", 43 Vand. L. Rev. 851 (1990) (with Perry).
"Reflections on Reves v. Ernst & Young: Its Meaning and Impact on Substantive, Accessory, Aiding, Abetting and conspiracy Liability Under RICO," 33 Am. Crim. Law Rev. 1345 (1996) (with Roddy) (Special 25th Anniversary Issue).
The Development of the Law of Gambling: 1776-1976 (NILE, 1978).
Racket Bureaus: Investigation and Prosecution of Organized Crime (NILE, 1978) (with Goldstock and Rogovin).
Perspectives on the Investigation of Organized Crime, 3 vols. (1980).
The Plot to Kill the President (Times Books: New York, 1981) (with Billings) (reprinted as Fatal Hour (Berkely 1992)).
BAR AND PROFESSIONAL MEMBERSHIP:
North Carolina 1960
District of Columbia 1960
United States Supreme Court 1963
IN THE HOUSE OF REPRESENTATIVES
Mr. or Ms. [insert sponsor(s)] introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To amend chapter 96 (relating to racketeer influenced and corrupt organizations) of title 18, United States Code and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION I. SHORT TITLE.
This Act may be cited as the "First Amendment Freedoms Act of 1998."
SEC. 2. RICO AMENDMENTS.
Section 1961 of title 18, United States Code, is amended --
(1) by striking in paragraph (1) (A) "or threat involving" and inserting in lieu theirof "constituting a conspiracy, an endeavor, or the commission of" and
(2) by adding immediately before the ";" at the end there of the following--
"provided that, as incorporated herein, in paragraph (A) and in paragraph (B), sections 1951, 1952, 1956 and 1957 of 18, United States Code, "extortion" is limited, in addition to any element otherwise required by law, to the trespatory taking of property (tangible or intangible) of another, either for oneself or another".
SEC. 3. FIRST AMENDMENT DEMONSTRATIONS; PLEADING, DISCOVERY; EVIDENCE; APPEALS.
(a) Rule 9 of the Federal Rules of Civil Procedure is amended by adding at the end there of --
"(i) Constitutionally Protected Conduct. In any civil action or proceeding involving conduct that includes the protected exercise of freedom of religion, speech, press, peaceable assembly, or petition of government for redress of grievance, any averment of unprotected conduct of any natural person, its proximate consequences, the association, if any, of any natural person with another, the unlawful objective, if any, of the association, the state of mind of any natural person with regard to an unlawful objective of the association, and the evidence on which the averment of state of mind is based shall be stated, insofar as practicable, with particularity."
(b) Rule 26 of the Federal Rules of Civil Procedure is amended by adding at the end thereof --
"(h) Discovery may not be obtained that unduly interferes with the protected exercise of freedom of religion, speech, press, or peaceable assembly, or petition of government for redress of grievance."
(c) Rule 403 of the Federal Rules of Evidence is amended by --
(1) inserting before "Although" --
(2) adding at the end thereof --
"(b) Evidence may not be admitted that would unduly interfere with or unduly put in issue the protected exercise of freedom of religion, speech, press, or peaceable assembly, or petition of government for redress of grievance.".
(d) Section 1292(a) of title 28, United States Code, is amended --
(1) by striking the "." at the end of paragraph (3) and inserting --
(2) by adding after paragraph (3) the following --
"(4) Interlocutory orders of the district courts of the United States granting or enforcing discovery or admitting evidence that is claimed to unduly interfere with or unduly put in issue the protected exercise of freedom of religion, speech, press, or peaceable assembly, or petition of government for redress of grievance.".
SEC. 4 FIRST AMENDMENT DEMONSTRATIONS; LIABILITY LIMITATIONS.
(a) Part VI. Particular Proceedings of title 28, United States Code, is amended by inserting at the end thereof the following new chapter --
"Chapter 181. First Amendment Demonstrations and Related Litigation Limitations.
"Section 4001. First Amendment Demonstrations and Related Litigation.
"§ 4001. First Amendment Demonstrations and Related Litigation.
"(a) In any civil action or proceeding that involves conduct consisting of the protected exercise of freedom of religion, speech, press, or peaceable assembly, or petition of government for redress of grievance --
"(1) no natural person may be held liable in damages or for other relief --
"(i) for the consequences of his protected conduct, or
"(ii) for the consequences of his unprotected conduct,
except for those consequences established by clear and convincing evidence to be proximately caused by his unprotected conduct,
"(2) no natural person may be held liable in damages or for other relief because of his associations with another where another engages in unlawful conduct, unless it is established by clear and convincing evidence that the natural person intended, through his associations with the other proximately to cause or further the unlawful conduct;
"(3) no natural person may be held liable in damages or for other relief based on the conduct of another, unless the fact finder finds by clear and convincing evidence that the natural person authorized, requested, commanded, ratified, or recklessly tolerated the unlawful conduct of the other;
"(4) no natural person may be held liable in damages or for other relief, unless the fact finder makes particularized findings sufficient to permit full and complete review of the record, if any, of the conduct of the natural person; and
"(5) notwithstanding any other provision of law authorizing the recovery of costs, including attorney fees, the court may not award costs, including attorney fees, if such award would be unjust because of special circumstances, including the relevant disparate economic position of the parties or the disproportionate amount of the costs, including attorney fees, to the nature of the damage or other relief obtained.
"(b) For the purpose of this section, a natural person acts recklessly when he consciously disregards a substantial and unjustifiable risk, where his conduct is a gross deviation from the standard of conduct that a law-abiding natural person would observe in the situation of the natural person.".
(2) The Table of Chapter Headings and the beginning of title 28, United States Code, is amended by inserting immediately after the entry for chapter 181 the following --
"181. First Amendment Demonstrations and Related Litigation."
SEC. 5. SEPARABILITY.
If the provisions of any part of this Act, or the application thereof, to any person or circumstances be held invalid, the provisions of the other parts and their application to other persons or circumstances shall not be affected thereby.
SEC. 5 EFFECTIVE DATE.
(a) Except as provided in subsections (b) and (c) of this section, this Act shall be effective on enactment.
(b) The amendments made to Section 1961 of title 18, United States Code, insofar as they are incorporated into Section 1963 of title 18, United States Code, shall not be applicable conduct engaged in prior to the effective date of this Act.
(c) The amendments made to Section 1961 of Title 18, United States code, insofar as they are incorporated into Section 1964 of title 18, United States Code shall be applicable to conduct prior to and after the effective date of this Act unless such prior conduct has been the subject of a final judgment by a court of competent jurisdiction, where all avenues of appellate review have been fully exhausted.
COMMENT ON THE
FIRST AMENDMENT FREEDOMS ACT OF 1998
Section 1. creates a short title.
Section 2. amends RICO (18 U.S.C. § 1961 et. seq.) to clarify the scope of "extortion" in the state and federal offenses incorporated as "racketeering activity" under 18 U.S.C. §1961. Decisions of federal courts have conflated the common law offense of "extortion" ("obtaining property by fear"), an offense, like larceny and robbery, that focuses on the protection of property, and requires a trespatory taking, with the modern statutory offense of "coercion" ("forcing a person to act against his or her will"), an offense that focuses on the protection of autonomy, and does not require a trespatory taking, by interpreting "to obtain" to mean "to deprive".
This construction makes possible the improper use of RICO against social and political demonstrations, where they, in fact, exceed constitutional protections by minor acts of trespass or vandalism, or petty assault. See, e.g., Northeastern Women's Center v. McMonagle, 868 F.2d 1342, 1349-50 (3rd Cir.), cert. denied, 493 U.S. 901 (1989); National Organization For Women, Inc. et. al. v. Joseph M. Scheidler, 1997 U.S. Dist. Lexis 14854 *55-67 (N.D. Ill. 1997). This result is contrary to the carefully crafted compromises that were embodied in RICO in 1970 by the Congress. See generally 33 Am. Crim. L. Rev. 1657 -- 1675 (Appendix H (Extortion) (tracing the legislative history of the Act and its constitutional and common law background). Section 2 restores the law to its common law scope before these innovative views were adopted.
Section 3 requires particularity of pleading, limits discovery, circumscribes the admission of evidence, and provides for interlocutory appeal when First Amendments freedoms are enmeshed in litigation.
Section 4. codifies and extends the First Amendment limitations reflected in NAACP v. Claiborne 458 U.S. 886, 918-21 (1981) (any group sued and each individual member of it must be shown to possess a purpose to engage in unlawful activity, not engage in lawful activity, and only those damages that are proximately caused by the unlawful conduct, not the lawful conduct, may be remedied); it also raises the burden of persuasion in such matters from preponderance to clear and convincing evidence and limits the recovery of attorneys fees that would be unjust in the circumstances.
Section 5. provides for separability.
Section 6 provides that the effective date is on enactment. The provisions that amend RICO, however, are, while limited for criminal purposes to conduct after the effective date, apply for civil purposes to conduct before the effective date that is not yet the subject of a final judgment on which all avenues of appellate review have been exhausted.
Congress is, of course, free, consistent with Due Process, to modify statutorily created rights imposing liability by extinguishing that liability, even after conduct in violation of that standard has occurred, particularly where the legislation is curative of judicial interpretation of congressional intent. See, e.g., Battaglia v. General Motors Corp., 169 F.2d 254, 259 (2nd Cir. 1948) (upholding the Portal-to-Portal Act of 1947, which curtailed the scope of liability unexpected by imposed under the Fair Labor Standards Act in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)), cert. denied, 335 U.S. 887 (1948) (collecting Supreme Court decisions). Accord, Hammong v. United States, 786 F.2d 8, 10-12 (1st Cir. 1986) (upholding 42 U.S.C. §2212, which curtailed pending and future common law and state statutory claims for radiation injury.) (collecting Supreme Court decisions) The cases upholding such legislation are legion.