Supremes Uphold FACE

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 16, 2001

Answers

Let's see if the Supreme Court further erodes free speech when they hear the "Nuremburg Trials" web site appeal from the 9th Circuit.

-- The shadow (know@gain.com), April 16, 2001.

Are you saying that FACE infringes on free speech?

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 16, 2001.

From Reason Online

"Mouths Sued Shut

By Jacob Sullum

May 6, 1998

Tendentious terminology has always been a problem in the abortion debate. People who support restrictions, for example, call themselves "pro-life," implying that their opponents are "pro-death."

Now a federal jury in Chicago has resolved this semantic difficulty. The correct term for anti-abortion activists, it turns out, is "racketeers"--or, if you prefer, "extortionists."

That was the upshot of a class action lawsuit filed 12 years ago by two abortion clinics and the National Organization for Women. NOW argued that Joseph Scheidler of the Chicago-based Pro-Life Action League and three other prominent activists had violated the Racketeer Influenced and Corrupt Organizations Act (RICO) by encouraging abortion protests.

Under RICO, Scheidler et al. are liable for triple damages, and abortion clinics around the country are expected to demand compensation (mostly for extra security costs) in the wake of NOW's victory. If the verdict is upheld and other groups copy NOW's strategy, many forms of political activism could become prohibitively expensive.

Since RICO was intended to fight organized crime, applying it to anti- abortion activism required some creative definitions. According to my dictionary, "extort" means "to wrest or wring (money, information, etc.) from a person by violence, intimidation, or abuse of authority." Yet NOW maintained that abortion protesters were guilty of extortion, a "predicate act" under RICO, when they blocked the entrances of clinics. Exactly what they wrested is a little hazy.

Similarly, my dictionary defines "racket" as "an organized illegal activity, such as bootlegging or the extortion of money from legitimate business people by threat or violence." On the face of it, abortion protests don't fit into this category very well.

But Susan Hill, owner of the two clinics that sued Scheidler and his colleagues, explained that appearances can be deceiving: "In our case, they weren't coming for the bag of money--but to force us to close down by blockades or threats. For us, working in the clinics, it was racketeering."

In 1994 that argument got a boost from the U.S. Supreme Court, which unanimously ruled that an "enterprise" can be subject to RICO even if it's not aimed at making money. But in a concurring opinion, Justice David Souter said courts should "bear in mind the First Amendment interests that could be at stake," since "RICO actions could deter protected advocacy."

In fact, RICO actions against political groups are intended to deter advocacy. Protesters who use force to prevent abortion--whether through blockades, vandalism, or violence--have always been subject to arrest under state law. Four years ago, just in case the existing prohibitions against trespassing, disorderly conduct, and assault were inadequate, Congress passed the Federal Access to Clinic Entrances Act.

So RICO is not needed to punish activists who violate other people's rights. RICO is needed to punish activists, like Scheidler, who don't commit crimes but who plan and participate in protests where other people do.

NOW argued that Scheidler's writings and public comments implicitly condoned illegal behavior. But any vigorous condemnation of abortion-- say, equating it with murder--could be said to encourage lawlessness.

Ann Rose, a women's health consultant who maintains the Web site Abortion Clinics Online (www.gynpages.com), reports receiving the following message: "I think anyone that promots [sic] the destruction and death of human life does not deserve their own life. Get your crap off the web."

Though Rose calls this a "death threat," it seems more like a strongly worded protest. Still, some people have killed for this cause, so activists might reasonably worry that expressing such opinions would invite a RICO lawsuit.

Since every protest movement includes hotheads who get carried away or extremists who are prepared to break the law, NOW's successful use of RICO has sweeping implications. The law could be used against animal rights activists, environmentalists, union members, supporters of racial preferences--even feminists.

No less an authority than G. Robert Blakely, the Notre Dame law professor who wrote RICO, warns that applying it to protesters will have a chilling effect on speech. "Everybody who loves the First Amendment has got to sleep uneasily tonight," he said after the verdict.

Even the people who brought the lawsuit seem to have qualms about it. "I don't like RICO; I think it's a terrible statute," NOW attorney Fay Clayton told The National Law Journal during the trial. "But as long as it's there, we should use it." Given RICO's potential for suppressing dissent, that sort of moral reasoning is not exactly reassuring.

© Copyright 1998 by Creators Syndicate Inc."

Also from Sullum

"...Crist, four other doctors, and two clinics are suing two anti- abortion groups and 14 activists. The lead defendant, the American Coalition of Life Activists, produced the Crist poster and helped put together "The Nuremberg Files."

The suit, which seeks $200 million in damages and an injunction to silence the activists, charges them with violating the Federal Access to Clinic Entrances Act by using threats of violence to interfere with abortion services. The difficulty is that, while the activists clearly do not wish abortionists well, they never explicitly threatened anyone.

Furthermore, their rhetoric, harsh and scary though it may be, goes to the heart of the debate over abortion. In other words, it is just the sort of speech the First Amendment is supposed to protect."

FACE is essentially "hate crime" legislation. It provides an extra layer of laws (and avenues for litigation) based on something other than the core criminal nature of an act or acts. I think it inevitable that using FACE or RICO statutes has a chilling effect on speech surrounding the abortion debate. Of course, you may disagree.

-- The shadow (know@gain.com), April 16, 2001.

I do disagree. An abortion protestor is free to say whatever s/he will as long as they do not prevent access to the clinic nor make terroristic threats. It's clearly not a violation of free speech. Would you like some cut and paste?

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 16, 2001.

Isn't a "terroristic threat" already against the law. The last time I checked, you could get arrested for your average death threat. Why create a separate body of law? And the "Nuremburg" web page was sued under the FACE legislation. Even if the Supreme Court upholds the 9th decision, there is still the issue of chilling effect. The pro- abortion forces will use FACE to deter protestors. Instead of facing the same law other citizens face when engaging in political protest, anti-abortion protestors get special legislation and the threat of a RICO conviction.

-- The shadow (knows@gain.com), April 16, 2001.

I'm getting the impression that you haven't really done any research on FACE. Although FACE stands for Free Access to Clinic Entrances, the act itself extends to ALL clinics (including anti-choice crisis pregnancy centers) and places of worship. It also applies equally to all viewpoints- just as you can't blockade a clinic entrance under FACE, I can't blockade a crisis pregnancy center. By the same token, someone who gets fired from working at a church and decides to firebomb can also be charged under FACE. Because FACE is limited to physical acts and threats, and not words, the courts have consistantly found that it does not limit free speech.

Not only is FACE not exclusive to anti-choice activists or reproductive issues, it isn't even unique. Congress long ago made it a felony to rob a bank but not to rob, say, a supermarket. See 18 USC section 2113. Congress has also seen fit to provide extra penalties for those who would use force or the threat of force to intimidate potential voters. In 1992, Congress enacted 18 USC section 43, the "Animal Enterprise Terrorism" act. This act was a response to animal rights andalism by making it illegal to damage the property of a business that makes money off animals, such as research laboratory, zoo, etc. Here's a link

Here's a link to the FACE act. Notice that

In US v. Bird, the 5th Circuit Court of appeals found that FACE is a legitimate use of interstate commerce laws because there is a significant interstate market for abortion services, that clinic violence constituted a nationwide problem regularly causing the disruption of abortion services, that this disruption was likely to cause women to travel to another state to gain uninterrupted access to abortion and "the proportionate increase in demand at unobstructed clinics . . . both increased (or was likely to increase) the cost of abortion services and reduced (or was likely to reduce) the availability of abortion services at the unobstructed clinics."

Let me know if you need a link.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 17, 2001.

How many "places of worship" attract crowds of protestors? This is like saying the Civil Rights Act exists to protect the rights of white male executives. FACE was passed to give federal authorities a club in dealing with abortion protestors, plain and simple. The language of 18 U.S.C.A. § 248 is not limited to actual physical acts, but includes "threats." One issue is at what point does free speech constitute a threat. This has been the critical point of the "Nuremburg" case, one that may yet be reviewed by the Supreme Court. Clearly, any abortion protestor must now more carefully consider if a particular writing or statement could be stretched into a "threat" and weigh the issue of cost of defense.

FACE is a federalization of an issue that ought to be governed by existing state or local laws. The PETA people can rally at the fur store and if they break a local law they will generally pay a small fine. If the abortion protestors break the law at a clinic, the punishment is much worse. FACE is nothing more than federal "hate crime" legislation for abortion protestors. Lest you think me inconsistent, I am opposed to all "hate crime" legislation and the federalization of the legal system that creates double or triple jeopardy for citizens. I also agree with the language of the dissent in Hill v. Colorado on the same first amendment concerns, though I respect Colorado's right to make a state law.

Imagine how federal prosecutors might have used a FACE-style law in dealing with student protests in the 60s. Some people I know would still be in prison.

-- The shadow (knows@gain.com), April 17, 2001.

Don't you have anything beyond your opinion, Shadow?

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 17, 2001.

Whoops, looks like I cut myself off.

How many "places of worship" attract crowds of protestors? This is like saying the Civil Rights Act exists to protect the rights of white male executives.

Actually, the Civil Rights Act exists to prevent discrimination based on race, including against white people. Here's a link to the text of Title VII. Nice red herring though.

FACE was passed to give federal authorities a club in dealing with abortion protestors, plain and simple.

FACE, like the Animal Enterprise Terrorism Act, was enacted to protect commerce from the effects of terrorism.

The language of 18 U.S.C.A. § 248 is not limited to actual physical acts, but includes "threats."

Did you read the actual text of the law? Section D says:

Rules of Construction. - Nothing in this section shall be construed - (1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution; (2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, occurring outside a facility, regardless of the point of view expressed, or to limit any existing legal remedies for such interference; (3) to provide exclusive criminal penalties or civil remedies with respect to the conduct prohibited by this section, or to preempt State or local laws that may provide such penalties or remedies; or (4) to interfere with the enforcement of State or local laws regulating the performance of abortions or other reproductive health services.

Section e point 3 says:

"(3) Intimidate. - The term ''intimidate'' means to place a person in reasonable apprehension of bodily harm to him- or herself or to another."

One issue is at what point does free speech constitute a threat. This has been the critical point of the "Nuremburg" case, one that may yet be reviewed by the Supreme Court. Clearly, any abortion protestor must now more carefully consider if a particular writing or statement could be stretched into a "threat" and weigh the issue of cost of defense.

And yet, despite the "chilling" effect of FACE, The Nuremberg files is back up on the web, with few changes (the wanted posters are gone). I wonder how that can be?

FACE is a federalization of an issue that ought to be governed by existing state or local laws. The PETA people can rally at the fur store and if they break a local law they will generally pay a small fine. If the abortion protestors break the law at a clinic, the punishment is much worse.

Now I KNOW you didn't read either of the laws. The Animal Rights Terrosim Act calls for major prison time and/or fines for violation. FACE has maximum penalties depending on the number of violations. An animal rights activist who engages in an act of terrorism has more to fear, and lose, under the law than the anti-choice activist.

FACE is nothing more than federal "hate crime" legislation for abortion protestors.

No, it's not. Hate crime laws only come into play when the perpetrator has a bias against the victim. FACE doesn't concern itself with the motivation behind the act, just the act itself.

Imagine how federal prosecutors might have used a FACE-style law in dealing with student protests in the 60s. Some people I know would still be in prison.

Imagine if student protestors in the 60's tried to use the First Amendment as a defense for arson, maiming, and murder. We might have had a FACE-type act that much sooner.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 17, 2001.

Off.

-- Tarzan the Tag Man (tarzan@swingingthroughthejunglewithoutaclosed.tag), April 17, 2001.

Gosh, Shadow, you're absolutely right. Tarzan didn't present a gosh- darned SCRAP of evidence. No links. No proof. No citations of anything. He didn't even QUOTE that lil' ol' law you two are arguing about.

How could I not see it, Shadow? You're absolutely right. Tarzan's posts are totally devoid of content. And of proof. And of evidence. And of facts. And of statistics.

-- Already Done Happened (oh.yeah@it.did.com), April 18, 2001.

"How many "places of worship" attract crowds of protestors? This is like saying the Civil Rights Act exists to protect the rights of white male executives."

The Church of Scientology gets protestors often, so do Nation of Islam mosques, and the Metropolitan Church of Christ, which accepts gays and lesbians.

-- A Fan of the Ape Man (afan@of.theape.man), April 18, 2001.

Good point, Fan. Fred Phelps, of godhatesfags.com, regularly pickets homes and places of business for gays and lesbians as well as funerals (he picketed Randy Schiltz' and Matthew Shepards funerals). I imagine he pickets churches too, though I could be wrong. Many anti-choice activists picket the churches of doctors who perform abortions as well. Of course, picketing is protected, it is only once they actively prevent people from entering, either through blockades or threats of physical violence, would FACE come into play.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 18, 2001.

Yes, Tarzan, we all know the wording of Civil Rights Act includes protection of white people. In practice, the Act is generally used to defend the rights of persons of color and other specific classes.

I disagree with the thin pretense of interstate commerce. The broader we interpret the ICC, the more sway Congress has to meddle in state and local affairs. On the same grounds, I disagree with the Animal Enterprise Terrorism Act.

Yes, I read Section D, and I also heard the concerns of the ACLU that this law is subject to prosecutorial excess. "Reasonable apprehension" is central to the "Nuremburg" case. Since the 9th overturned the judgement on appeal, the definition of "reasonable" is clearly open to interpretation.

"Nuremburg" is back on the web because it is behing hosted by a South African ISP that is relatively immune to domestic political pressures. Nuremburg lost multiples ISPs in the U.S. because of litigation fears.

My example of a furrier was poorly chosen if the furrier is protected under ARTA. I don't know because I honestly haven't read the ARTA. Let's use the corner drug store that sells condoms or pornographic magazines. I think political protestors should be treated equally regardless of what they are protesting and that criminal law should be developed at the state and local level unless there is an overwhelming case of evidence justifying intervention on grounds like the ICC.

Hey, FACE could have been much worse, but this whole slippery notion of "threat" opens a can worms. What is irrefutable is that FACE federalizes the issue. It opens the door wider for litigation and increases the stakes. Now, protesting an abortion clinic (or a hog farm) is treated differently than protesting a local bookstore.

Why not treat all political protests the same?

-- The shadow (knows@gain.com), April 18, 2001.

Yes, Tarzan, we all know the wording of Civil Rights Act includes protection of white people. In practice, the Act is generally used to defend the rights of persons of color and other specific classes.

This, of course, does not prove your point, that the law was intended to protect only people of a certain race, and not others. It could very well be that this law is invoked by people of color more often than people who are of European heritage because people of color face more discrimination. Without any data on this point, we simply don't know.

I disagree with the thin pretense of interstate commerce. The broader we interpret the ICC, the more sway Congress has to meddle in state and local affairs. On the same grounds, I disagree with the Animal Enterprise Terrorism Act.

What, exactly, do you mean by ICC? You are aware that the Interstate Commerce Committee was abolished in 1995 under the ICC Termination Act, aren't you?

If you're referring to the ICA (Interstate Commerce Act) and not the ICC, then I have to ask if you're referring to the act itself or creeping federalism. If the later, then who, exactly, do you think should be regulating and protecting interstate commerce?

Yes, I read Section D, and I also heard the concerns of the ACLU that this law is subject to prosecutorial excess. "Reasonable apprehension" is central to the "Nuremburg" case. Since the 9th overturned the judgement on appeal, the definition of "reasonable" is clearly open to interpretation.

Your point being?

"Nuremburg" is back on the web because it is behing hosted by a South African ISP that is relatively immune to domestic political pressures. Nuremburg lost multiples ISPs in the U.S. because of litigation fears.

The Nuremburg files is owned by a man named Neal Horsley who lives about forty miles away from me. His address is up on his website for all to see. Clearly he is not intimidated by FACE. Nor is the Army of God, the terrorist group to which Eric Rudolph belonged.

I challenge your assertation that the Nuremburg files page has lost multiple ISPs due to litigation fears. I did a quick search at whois.net, and found Neal Horsley as Technical and Administrative contact, with the same att.net address he uses on the website. The nameserver is through Webfever.net in Smyrna, GA.

My example of a furrier was poorly chosen if the furrier is protected under ARTA. I don't know because I honestly haven't read the ARTA. Let's use the corner drug store that sells condoms or pornographic magazines.

What do you mean by ARTA? Are you referring to the Animal Enterprise Terrorism Act? And if so, how can you disagree with an act whose text you haven't even read?

I think political protestors should be treated equally regardless of what they are protesting and that criminal law should be developed at the state and local level unless there is an overwhelming case of evidence justifying intervention on grounds like the ICC.

Anti-choice activists have demonstrated an overwhelming case for intervention.

Hey, FACE could have been much worse, but this whole slippery notion of "threat" opens a can worms. What is irrefutable is that FACE federalizes the issue. It opens the door wider for litigation and increases the stakes. Now, protesting an abortion clinic (or a hog farm) is treated differently than protesting a local bookstore.

This is a red-herring. Protesting in and of itself is perfectly legal under FACE and the Animal Enterprise Terrorism Act. However, arson, blockades, threats, and murder are illegal.

Why not treat all political protests the same?

Because they aren't all the same.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 18, 2001.

I feel you are being disingenuous. The legislative intent of the Civil Rights Act was to federalize the law around race primarily for the benefit of blacks living in the American south. You know full well that the law has been used to prosecute individuals where the federal government felt local or state justice was insufficient. The Act has been used to advance the cause of other protected classes of persons.

FACE was NOT passed because people were concerned about terrorism against "places of worship." The legislative intent was to federalize the protection of abortion clinics under the Interstate Commerce Clause. (Sorry about the confusion in my abbreviation.) The rest of the language in the Act seems like window dressing.

Don't be obtuse about my point. The meaning of "threat" is clearly up for interpretation. Find me a favorable jurisidiction and a sympathetic jury and you'd be amazed at how low the threshold of "threat" can become. This is why the ACLU filed an amicus brief in the Planned Parenthood case and why the 9th correctly overturned the verdit. I expect we'll see this go to the Supreme Court. If the Supreme Court upholds the "true threat" and "incitement" standards, I'll relax about FACE, but the fact remains that Planned Parenthood won the first round. Even if Planned Parenthood loses at the SC, the multimillion initial verdict sends a clear message. It also makes ISPs more nervous.

ISP sued for abortion site shutdown

http://abcnews.go.com/sections/tech/DailyNews/abortionwebsite990610.ht ml

I'm digging through my notes to find the quote about multiple sites, but I will retract this if I cannot find the note.

As a matter of general principle, I dislike federalization. There are laws against murder and terrorist acts. I don't see that murder or terrorist acts in specific circumstances warrant different treatment. Personally, Tarzan, if a man shoots and kills an abortion clinic worker I'm in favor of the death penalty. Did you have something more severe in mind?

By the way, how's the mobile home business?

-- The shadow (knows@gain.com), April 18, 2001.

I feel you are being disingenuous. The legislative intent of the Civil Rights Act was to federalize the law around race primarily for the benefit of blacks living in the American south.

In YOUR opinion. The law, however, provides equal protection for all people regardless of race, national origin, gender, or religion. In fact, it has been used successfully in so-called reverse discrimination cases. The point of all this is that intention of the law doesn't mean diddly squat. What's important is how the law is written. Just as a white person can successfully file a complaint of discrimination under Title VII, so a pro-life organization can use FACe to defend themselves.

FACE was NOT passed because people were concerned about terrorism against "places of worship."

In your opinion. Do you have anything beyond this?

Don't be obtuse about my point. The meaning of "threat" is clearly up for interpretation.

Who on earth said it wasn't?

Find me a favorable jurisidiction and a sympathetic jury and you'd be amazed at how low the threshold of "threat" can become.

Come on, Shadow. The definition of threat is a component of many laws. Why is it that you aren't so concerned about the threshold of threat from a mobster prosecuted under the RICO act?

If the Supreme Court upholds the "true threat" and "incitement" standards, I'll relax about FACE, but the fact remains that Planned Parenthood won the first round. Even if Planned Parenthood loses at the SC, the multimillion initial verdict sends a clear message. It also makes ISPs more nervous.

Yes. The verdict sends a clear message that those engaging in racketeering and terrorism will pay a heavy price. Don't get in the way of interstate commerce and you won't have to pay this price.

I'll be frank. I've certainly heard a lot of anti-choicers express concern over this law. But I have yet to hear of anyone alter their protest activities over this. YMMV, however, and you're welcome to produce documentation to that effect.

I'm digging through my notes to find the quote about multiple sites, but I will retract this if I cannot find the note.

Okay.

As a matter of general principle, I dislike federalization. There are laws against murder and terrorist acts. I don't see that murder or terrorist acts in specific circumstances warrant different treatment.

In the eyes of the law, they do. For instance, destruction of property warrants a different treatment if it's on a military base vs. a gas station. Likewise, a bank robber and the guy who hold up the liquor store are treated differently, and when someone engages in racketeering to effect interstate commerce they are treated differently than someone who commits simple arson on the local Winn- Dixie because their eggs were crushed at the bottom of the bag. Are you seriously saying that we should treat all crimes the same?

Personally, Tarzan, if a man shoots and kills an abortion clinic worker I'm in favor of the death penalty. Did you have something more severe in mind?

You know, clinic violence is much more than murder. For instance, though only seven people have been murdered by anti-choice terrorists, there have been over 163 incidents of arson, 40 bombings, and 680 blockades. Here's the stats for you.

You know, come to think of it, maybe FACE has had an affect on anti- choice groups. For instance, hate mail and picketing incidents have increased while vandalism and death threats are down.

By the way, how's the mobile home business?

How on earth would I know? I'm in IT.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 18, 2001.

Tarzan he's trying to say you're CPR. Shadow must be getting desperate since everyone knows CPR is pro-life.

-- ICU (ICU@yes.you), April 18, 2001.

Oh, well that's cute. Better luck next time!

I realized I had the wrong link for the stats. Here's the correct link for you. Notice that since 1994, picketing has risen steadily, going from 1,356 incidents in 1994 to 7,855 in 2000. Picketing increased by 2600 incidents from 1994 to 1995, and by almost 4000 from 1995 to 1996. In fact, 1999 to 2000 was the only year that saw a decline in picketing, by less than 1000 incidents. Picketing, is, of course, a lawful expression of free speech and does not violate FACE.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 18, 2001.

No, no, no.

Shadow is CPR and I believe that he is implying that Tarzan is the old Net Ghost. At least Net Ghost is the only IT person involved in the mobile home business that I recall posting at the old uncensored board and TB2000. I don't think Tarzan has ever stated he lived in Oregon though.

How about it Tarzan? You swinging through the jungle on the coast of Oregon?

-- Friendly Ghost (heain'tc@sper.com), April 18, 2001.

Come now, Tarzan, you know there is a difference between a law on its face and how it is applied. Take the evolution of RICO/CCE. RICO has been used to charge "terrorists, anti-abortion protesters, anti- obscenity picketers, video store owners and adult bookstore owners, major corporations and banks, Wall St. investment firms, the Chicago Mercantile Exchange (Gorman 1989), politicians, doctors, local and state law enforcement personnel, and husbands who have been sued by their ex-wives for defrauding them of marital property (Lynch 1987a, 1987b; U.S. House of Representatives 1987 169-170)" (Cecil Greek)

This goes well beyond the pursuit of traditional racketeering (or mobsters as you put it). RICO has been abused and serves as an excellent example of what can happen when Congress federalizes criminal law (and uses vague language).

Before FACE, there were laws against terrorism, arson and murder. If FACE were repealed tomorrow, these same laws would be on the books. These same laws apply to mobsters, terrorists and every other convicted criminal. Why create a federal statute?

I do not have a problem with federal jurisdiction when a crime occurs on or against a federal installation like a military base. There are legimate reasons for federal criminal statutes to exist where there is a clear and present federal issue. You feel that abortions are an issue of interstate commerce. Perhaps there are huge numbers of pregnant women moving throughout regions shopping for the best service and prices? How do you separate the economic impact of legal protests (some admittedly unpleasant) with that of illegal actions?

I'm not sold on the commerce angle. To me, it smells like a politically expedient justification to get the feds in the business of protecting abortion clinics. In ten or twenty years, we'll be able to see if FACE has been a good law or has gone the way of RICO.

The legal system does differentiate against crimes, and criminals. A white-collar criminal can walk with probation while a poor, minority thief does hard time. Our legal system, gotta love it.

-- The shadow (knows@gain.com), April 18, 2001.

shadow:

I too regard FACE as being superfluous. But just as you recognize that RICO has been stretched beyond the original intent, so you should recognize that abortion protestors' intent isn't to simply express disapproval of the rights enjoyed by others. Their intent is to *deprive* people of those rights by any means they can find. So the real intent of FACE is to escalate the effort to protect the rights of citizens against those who would stoop to terrorism and intimidation to accomplish by violence what they cannot achieve politically.

It's a shame that we end up passing laws like FACE because of the unwillingness of religious fanatics to play by the rules. What was that about godballs being willing to compromise?

-- Flint (flintc@mindspring.com), April 18, 2001.

Come now, Tarzan, you know there is a difference between a law on its face and how it is applied.

How a law is applied is a variable that can only be contolled by how a law is written or altered. This is an argument for writing better laws, or amending existing laws, but not for doing away with laws.

Take the evolution of RICO/CCE. RICO has been used to charge "terrorists, anti-abortion protesters, anti- obscenity picketers, video store owners and adult bookstore owners, major corporations and banks, Wall St. investment firms, the Chicago Mercantile Exchange (Gorman 1989), politicians, doctors, local and state law enforcement personnel, and husbands who have been sued by their ex-wives for defrauding them of marital property (Lynch 1987a, 1987b; U.S. House of Representatives 1987 169-170)" (Cecil Greek)

I appreciate the use of citation, however, without knowing which texts by Gorman, Lynch and Greek you are referring to, I can't comment on them.

RICO was intentionally written in a very broad fashion to facilitate the recovery of damages for those who've been injured by a pattern of criminal activity. RICO makes it illegal "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate ... in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." Here's a link to the act itself.

This goes well beyond the pursuit of traditional racketeering (or mobsters as you put it). RICO has been abused and serves as an excellent example of what can happen when Congress federalizes criminal law (and uses vague language).

As I said earlier, the intention behind the law means diddly-squat. What's important, in this case, is the way the law was written. Reading the bill, it's obvious that RICO clearly applies to organized anti-choice terrorism. It's a free country and reasonable people can disagree. However, if your basic issue lies with the enforcement of RICO, then your argument should lie with the root of your problem and not one of the Hydra's heads.

Before FACE, there were laws against terrorism, arson and murder. If FACE were repealed tomorrow, these same laws would be on the books. These same laws apply to mobsters, terrorists and every other convicted criminal. Why create a federal statute?

Because state and local laws were not enough to protect this interstate commerce activity. I refer you again to US v. Bird as well as NOW v. Scheidler (let me know if you want a link).

I do not have a problem with federal jurisdiction when a crime occurs on or against a federal installation like a military base.

Is a bank a federal installation?

You feel that abortions are an issue of interstate commerce. Perhaps there are huge numbers of pregnant women moving throughout regions shopping for the best service and prices?

There are large swaths of the country where abortion providers are non-existant. Somewhere I have a hyperlinked map of these areas if you're interested. Anyway, when a woman who wishes to have an abortion lives in an area with no access to abortion services, she often has no choice but to travel to another state. I regularly meet women from rural Alabama and Tennessee, for instance. Would you like a citation?

How do you separate the economic impact of legal protests (some admittedly unpleasant) with that of illegal actions?

FACE does it simply and elegantly. Where protestors confine themselves to trying to persuade women from having an abortion, praying, and carrying signs, they are not prosecutable under FACE. When they start beating people with their signs and threatening to kill the patients and the providers, they are in violation of the act.

I'm not sold on the commerce angle. To me, it smells like a politically expedient justification to get the feds in the business of protecting abortion clinics. In ten or twenty years, we'll be able to see if FACE has been a good law or has gone the way of RICO.

Okay.

The legal system does differentiate against crimes, and criminals. A white-collar criminal can walk with probation while a poor, minority thief does hard time. Our legal system, gotta love it.

Prejudices endemic in the system itself are not the fault of the laws.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 18, 2001.

The vast majority of religious persons decry the senseless acts of violence committed by extremists. But in your eyes, every believer is a "godball." Hey, it's an easy walk to looking at the violence of few black persons and thinking they're all "niggers." You're a bigot, Flint, with a bias against religious persons. I can understand with the condescending attitude that faith is just a bad synapse or a lingering childhood impression, but stereotypical name calling? I thought you knew better. Compelling analysis, by the way, "Those damn 'godballs' brought this on themselves." Why worry about the first amendment when it's just a bunch of religious nuts, eh?

I'm not sure I understand your logic, Tarzan. We can write better laws or improve existing laws, but we can't throw them out? I see a Congressional seat in your future.

Legislative intent does matter, and you would seem to enough about law to understand this. RICO was written too broadly and has been abused.

"Supreme Court Justice Thurgood Marshall called our attention to this problem as far back as 1985 when he explained that the civil RICO statute, quote, `virtually eliminates decades of legislative and judicial development of private civil remedies under the Federal securities laws.' Today's amendment seeks only to reform RICO in the area of securities legislation, but I should point out that this House under its previous control by today's minority, the Democrats, have previously passed wholesale RICO reform by an overwhelming margin." http://cox.house.gov/cr/1995/rico.html

From the same page:

"Chief Justice Rehnquist has observed:

Virtually everyone who has addressed the question agrees that civil RICO is now being used in ways that Congress never intended when it enacted the statute in 1970. Most of the civil suits filed under the statute have nothing to do with organized crime. (Rehnquist, Reforming Diversity Jurisdiction and Civil RICO, St. Mary's L.J. 5, 9 (1989) (originally presented at the Brookings Institution's Eleventh Seminar on the Administration of Justice, April 7, 1989).

`It is true that private civil actions under the statute are being brought almost solely against such defendants [respected and legitimate businesses], rather than against the archetypal, intimidating mobster. Yet this defect--if defect it is--is inherent in the statute as written, and its correction must lie with Congress.' The Supreme Court, Sedima, 105 S. Ct. at 3286-87.

`I have a feeling about RICO in the civil world * * * as being the most conspicuous case I know of legislation requiring Congressional attention to revision.'--Former U.S. District Court Judge Simon Rifkind of the Southern District of New York.

`An imaginative plaintiff could take virtually any illegal occurrence and point to acts preparatory to the occurrence, usually the use of the telephone or mails, as meeting the requirement of pattern.'--U.S. Circuit Court of Appeals for the 5th Circuit Judges Higginbotham, Politz, and Jolly (Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 424 (5th Cir. 1987)).

`Congress * * * may well have created a runaway treble damage bonanza for the already excessively litigious.'--Federal Circuit Court of Appeals for the 7th Circuit Judges Wood, Cummings, and Hoffman (Schacht v. Brown, 711 F2d, 1343, 1361 (7th Cir. 1983)).

`[O]ne of the proliferating developments in civil litigation has been the use of RICO * * * in civil claims, in routine commercial disputes, including those arising under the federal securities laws. I think that the proliferation of these claims and the use of a law that was designed to eliminate organized crime is a very bad influence on the commercial community.'--U.S. District Court Judge Milton Pollack of the Southern District of New York.

`McCarthy, though armed with substantial damage claims, with a requested ad damnum of $312,220 in compensatory and $1 million in punitive damages, obviously cannot resist the treble damages and attorneys' fees lure of RICO.'--Judge Shadur, U.S. District Court for the Northern District of Illinois (McCarthy Cattle Co. v. Paine Webber, Inc., 1985 WL 631 (N.D. Ill., April 11, 1985).

`[The plaintiff's complaint] demonstrates at least two facts of life in an urban district court in a litigation-prone society: * * * RICO's lure of treble damages and attorneys' fees draws litigants and lawyers * * * like lemmings to the sea.'--Judge Shadur (Wolin v. Hanley Dawson Cadillac, Inc., 636 F. Supp. 890, 891 (N.D. Ill. 1986). Just as RICO has been abused, FACE may, though only time will tell.

As to the sufficiency of state and local laws, we disagree, though I recognize the judiciary sees this your way not mine. People who have killed abortion doctors have gone on trial and been convicted. James Charles Kopp was indicted on state murder charges in NY State Court and violation of FACE. A conviction under FACE can impose no more punishment than Murder 2 and the other state charges Kopp faces (no pun intended)

Because you wondered, FACE does seem to have an impact: "Although the number of large-scale blockades declined after the enactment of FACE, serious violence and threats toward clinics have continued. In addition to the offenses described above, offenders in 1998 and 1999 employed sham anthrax threats and butyric acid attacks in an attempt to frighten clinic employees and interrupt operations and clinics nationwide." DOJ Web Page

I am not the only person who wondered about involving federal law enforcement. According to David Johnston, "Where the F.B.I. Fears to Tread," The New York Times November 15, 1998, the FBI is concerned as well. After the 60s, I am concerned about the FBI.

A bank is not a federal reservation and I imagine the law is left over from the 1920s or 30s. Personally, armed robbery is armed robbery. The whole idea of a bank needing special protection is humorous as we become more and more dependent on electronic payments. Willy Sutton's days are over.

{As a side note, I think you meant "nonexistent."}

Again, Tarzan, you oversimplify. If a protestor acts in a way that might construe a "threat," it is a violation of FACE. This is not only a protest at a clinic entrance, but any form of political protest. The "Nuremburg" web site was on the Internet, not at anyone's door. What if an environmental extremist posts old west- style wanted posters of local corporate CEOs? At what point does political protest became threat? Like RICO, the game can quickly become, "let's file the civil suit and roll the dice. Even if we lose, we can deter other people." This is where free speech can suffer.

-- The shadow (know@gain.com), April 19, 2001.

shadow:

[The vast majority of religious persons decry the senseless acts of violence committed by extremists.]

These are the people I've been referring to you.

["Those damn 'godballs' brought this on themselves." Why worry about the first amendment when it's just a bunch of religious nuts, eh?]

But by committing senseless acts of violence, the godballs HAVE brought this on themselves. I spoke of playing by the rules, and you carefully ignored it. We recognize limits on free speech, much as you seem to feel that the truly religious should suffer no such limits. Senseless violence, public humiliation, murder or providers, prevention of commerce, clear and present threats and intimidation, these are NOT first amendment rights. The first amendment guarantees that you can make your opinion heard, NOT that you can deprive others of their rights.

-- Flint (flintc@mindspring.com), April 19, 2001.

The vast majority of religious persons decry the senseless acts of violence committed by extremists.

I recognize this portion of your post isn't directed at me, but I can't fight the urge to stick my nose in. I think you're getting unnecessarily shrill here. Flint specifically referred to "the unwillingness of religious fanatics to play by the rules,". You refer to "the senseless acts of violence committed by extremists," It seems to me you are talking about one and the same thing.

Why worry about the first amendment when it's just a bunch of religious nuts, eh?

Actually, since FACE applies equally without regard to religion (or lack thereof) or even motivation, it's not "just a bunch of religious nuts". In fact, FACE has been found to not violate the first amendment in a variety of cases in a variety of venues. American Life League v. Reno (4th Circuit, 1995), Cheffer v. Reno, (11th Circuit 1995), United States v. Wilson (7th Circuit 1995), United States v. Dinwiddie (8th Circuit 1996), United States v. Soderna (7th Circuit 1996), United States v. Bird (5th Circuit 1997), Hoffman v. Hunt (4th Circuit 1997), Terry v. Reno, (D.C. Circuit 1996) Once again, acts of violence and threats do not consistute protected speech.

I noticed that you seized on Flint's alleged bigotry and negelected to address the rest of his post. I for one would like to see you address the main point that he raised.

I'm not sure I understand your logic, Tarzan. We can write better laws or improve existing laws, but we can't throw them out? I see a Congressional seat in your future.

You made an argument to write or alter existing laws, but not to overturn them.

Frankly, the insults detract from your argument.

RICO was written too broadly and has been abused.

I appreciate the citations and quotations, but they miss my point. It is becoming increasingly clear that your problem lies with RICO rather than FACE.

I think it's worth noting however that you've produced a quote from Justice Rehnquist expressing concern over the misuse of RICO. In NOW vs. Scheidler, Rehnquist, along with all the other justices, found that NOW could use RICO to go forward with a civil suit against anti- choice clinic blockaders. Clearly in this instance, Justice Rehnquist did not think this was a misuse of RICO. As to the sufficiency of state and local laws, we disagree, though I recognize the judiciary sees this your way not mine.

Which is why FACE was drafted and enacted.

People who have killed abortion doctors have gone on trial and been convicted. James Charles Kopp was indicted on state murder charges in NY State Court and violation of FACE. A conviction under FACE can impose no more punishment than Murder 2 and the other state charges Kopp faces (no pun intended)

Again, although murder is the most visible example of reproductive choice related violence, it is certainly not the definition of violence. As I said in an earlier post: You know, clinic violence is much more than murder. For instance, though only seven people have been murdered by anti-choice terrorists, there have been over 163 incidents of arson, 40 bombings, and 680 blockades.

Because you wondered, FACE does seem to have an impact: "Although the number of large-scale blockades declined after the enactment of FACE, serious violence and threats toward clinics have continued. In addition to the offenses described above, offenders in 1998 and 1999 employed sham anthrax threats and butyric acid attacks in an attempt to frighten clinic employees and interrupt operations and clinics nationwide."

Fortunately however, bombings, attempted bombings, invasions, and arson have all declined. This is a significant improvement .

I am not the only person who wondered about involving federal law enforcement. According to David Johnston, "Where the F.B.I. Fears to Tread," The New York Times November 15, 1998, the FBI is concerned as well. After the 60s, I am concerned about the FBI.

Odd. I did a search of the NYT archives and could find no such article on any date, let alone 11/15/98. Could you provide a citation of this article in another location? Also, have you managed to dig up the documentation on Horsley's webhosting?

A bank is not a federal reservation and I imagine the law is left over from the 1920s or 30s. Personally, armed robbery is armed robbery. The whole idea of a bank needing special protection is humorous as we become more and more dependent on electronic payments. Willy Sutton's days are over.

Whether you rob a bank or hack in electronically, you will face federal charges. Do you oppose these laws? If so, on what grounds do you oppose them?

Again, Tarzan, you oversimplify. If a protestor acts in a way that might construe a "threat," it is a violation of FACE. This is not only a protest at a clinic entrance, but any form of political protest.

No, it's not. FACE is specifically constructed to allow peaceful protest and picketing. Do I need to quote the law again?

The "Nuremburg" web site was on the Internet, not at anyone's door.

The Nuremburg website posted the names, personal addresses and phone numbers and other personal information on doctors, including where they attend church and where their children attend school. The site also posted "wanted" posters of abortion providers. They have since dropped the "wanted" posters but are still collecting information on providers. In posting the personal information of these doctors, Neal Horsley "brought it to their door".

Of course, the original court decision was struck down, which is actually an indictment against your position that FACE's anti- intimidation component will be used to violate the first amendment.

What if an environmental extremist posts old west- style wanted posters of local corporate CEOs? At what point does political protest became threat?

I'd say at the point where you suggest these people are wanted "Dead or Alive" and here's where you can find them.

Like RICO, the game can quickly become, "let's file the civil suit and roll the dice. Even if we lose, we can deter other people." This is where free speech can suffer.

No offense, but if the potential for abuse is the only thing that has you concerned about FACE, you shouldn't look too closely at any other laws.

-- Tarzan the Ape Man (tarzan@swingingthroughthejunglewithouta.net), April 19, 2001.

Sophistry, Flint. You've used the phrase "Godballs" like a Klan members uses the phrase "niggers." Perhaps you can offer the tired argument that you weren't referring to all "blacks," just the violent extremists. I don't suppose you understand that the phrase itself might offend reasonable persons of color (or faith).

During the 60s, some militant blacks were members of the Black Panthers. These groups were monitored by the FBI and infiltrated by COINTELPRO. You might remember the Panther 21 conspiracy case. Or how about the more recent release of black activist Elmo Pratt? Do you do see excesses in how the federal government treated the Black Panthers and other activists in the 60s. I do. The federal government had the agenda of shutting down militant black activism and used illegal methods to accomplish this end. This same potential exists with the federal agenda to shut down militant anti-abortion activism. Would you say, Flint, "by committing acts of senseless violence, the 'niggers' brought this on themselves?"

I have not once said or implied that any person has a right to engage in illegal behavior. I oppose federalization of criminal laws and see a long history of abuse of vague federal statutes like RICO. I think creating new criminal and civil penalties for certain types of political protestss is a slippery slope. Violent crimes should be punished and are by state and local courts. Legitimate threats should be punished. The punishments should be the same whether you threaten the CEO of an abortion clinic or a mink ranch or IBM. FACE says that when some types of political protests cross the line into criminal behavior the penalties should be more severe. Should we impose FACE penalties on environmentalists who blockade construction sites or spike trees or damage equipment? How about anti-nuclear protestors chaining themselves to gates? The issue here is that you and Tarzan don't mind FACE because it is directed at anti-abortion protestors, a group neither of you seem to like. My contention is that this kind of legislation can easily pop up and target political protests you might find sympathetic. Don't say I didn't warn you.

Even if FACE does not violate the first amendment, suits like "Nuremburg" cannot help but have a chilling effect. Litigation, even if unsuccessful, can still be an effective strategy.

My opposition to federal criminal law is primarily constitutional. I think the intent of the constitution was to create a minimalist central government. I also think the federal statutues create a de facto double jeopardy. If John Doe is acquitted of murder, he can still be tried on violating a person's civil rights.

I don't particularly like or trust the federal government. I have seen criminal laws used to target groups for political purposes. I have also seen civil litigation used by special interests to forward their agenda. Criminal behavior should be punished for the nature of the crime and with political considerations set aside.

-- The shadow (knows@gain.com), April 20, 2001.

shadow:

I'm not sure I follow you. You seem opposed to FACE on the grounds that the federal government might violate this law. And if it weren't a federal law, then they'd have nothing to violate.

If so, this strikes me as a weak constitutional argument. After all, you could oppose *any* law on the grounds that the authorities might violate it or misinterpret it.

[Perhaps you can offer the tired argument that you weren't referring to all "blacks," just the violent extremists. I don't suppose you understand that the phrase itself might offend reasonable persons of color (or faith).]

Well, earlier you offered this: "The vast majority of religious persons decry the senseless acts of violence committed by extremists." Is this a "tired argument" when you use it too, or just me? Or are you going to claim that religious people are not offended by what they decry?

The purpose of FACE is to assist in the process of preventing extremists from depriving others of their rights. This is a quite different issue from whether FACE will be misused in the future. As I said, I agree that FACE should be superfluous. However, in practice local authorities have had difficulty dealing with extremists. Extremists by their very nature do not limit themselves to what the constitution guarantees them.

Why can't you see that their goal isn't simply to state their opinion? If it were, there would be no motivation to create FACE or anything like it. When those with whom the extremists disagree legitimately fear for their lives, freedom of speech has been exceeded.

[Would you say, Flint, "by committing acts of senseless violence, the 'niggers' brought this on themselves?"]

You have a habit of creating parallels out of thin air. FACE is a direct response to systematic violations of the limits of legal protest. Had there been no such violations, there would be no response. Claiming this isn't so because the government allegedly engaged in illegal acts in an unrelated situation is frankly absurd. Stick to the topic.

[Even if FACE does not violate the first amendment, suits like "Nuremburg" cannot help but have a chilling effect. Litigation, even if unsuccessful, can still be an effective strategy.]

But Nuremburg itself is intended to have a chilling effect. Its goal is demonstrably to facilitate the process of killing those the extremists hate the most. This is beyond protected speech. In general, I see no great urgency to protect the rights of extremists (of ANY stripe) to inflict bodily harm, including murder, on those they disagree with, or to use such harm to lend immediate credibility to threats to do the same to others. This is going too far, whatever the cause.

[Criminal behavior should be punished for the nature of the crime and with political considerations set aside.]

Absolutely. The extremists in question are engaging in criminal behavior. Criminal behavior is illegal, and it's disengenuous to claim that IF you agree with the criminals' goals, THEN their acts are "really free speech" after all! FACE does not criminalize political protest, and criminal behavior is NOT protected free speech. And these don't become "poltical crimes" simply because of the shape of the extremists' dementia. These thugs should properly be preaching at their cell walls.

Legitimate protest is expressly protected. I believe your primary concern is that legitimate protest has been ineffective at denying other people rights you personally believe should be denied. And recognizing this, the extremists have escalated their efforts into criminal activity, leading to FACE. You oppose FACE not because of any hazy history of possible questionable use of RICO, but because FACE directly protects rights you want to see violated. The rest of your arguments are fatuous.

-- Flint (flintc@mindspring.com), April 20, 2001.