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RICO Expanded by Supreme Court

On January 24, 1994 the U.S. Supreme Court unanimously ruled that the Racketeering Influenced Corrupt Organizations (RICO) law does not require proof of economic motive, National Organization of Women, et. al. v. Joseph Scheidler, et. al. The court's decision clears the way for NOW to continue its RICO civil suit in the lower courts.

NOW, a liberal feminist organization, was joined and supported in its petition to the court by the U.S. Department of Justice. Besides Scheidler, the targets of the suit include numerous anti-abortion organizations, with Operation Rescue being the most prominent. The NOW suit alleges that Operation Rescue, etc. are trying to shut down health clinics that provide reproductive services to women, including safe, legal abortion, and that their tactics include blockades, threats, etc. to dissuade women from using these clinics. What interest the Justice Dept. has in this case can only be presumed, but it's doubtful that their motivation has much to do with assisting NOW in their struggle to protect women's' access to abortion clinics.

The narrow legal issue decided by the court was whether RICO requires proof that a group is motivated by an economic purpose--as many district and appellate courts have held. The U.S. Supreme Court ruled that RICO requires no economic motive.

No economic motive in a law designed to prosecute organized crime, racketeering and corruption? How RICO arrived at this point, and the implications of such a ruling merit closer examination.

RICO came on line in 1970 as a law enforcement tool designed to be used against organized crime. It's stated purpose was to combat the infiltration of "legitimate" business by organized crime. Federal courts quickly expanded the meaning and mandate of RICO, and broadened police powers. For example, in Turkette, no allegation of organized crime need be established. Any union or group of individuals--any "association in fact"--will do. In RICO terminology this is referred to as an "enterprise."

Key elements of RICO are that individuals be engaged in a "pattern of racketeering", and that they conduct or participate--directly or indirectly--in an enterprise through a pattern of racketeering activity. Only two acts are necessary to establish a pattern. A racketeering act is defined as any act or threat indictable under 50 or so state and federal laws (e.g. obstruction of justice, interference with commerce, arson, etc.). The U.S. Congress has and surely will continue to amend this law to include other acts indictable under RICO.

There are two RICO criminal laws: (1) Participation in a Racketeering Enterprise, with its requisite two acts, and (2) Racketeering Conspiracy. RICO's conspiracy provision casts a much broader net as an individual need not be involved in the commission of the alleged acts. It is proof enough that you engaged in a "conspiracy" to do so. Conspiracy is not limited to a formal agreement. It can be established by a wide range of circumstantial evidence and be as subtle as a nod of the head.

The stakes are high. Each RICO count carries a maximum 20 years imprisonment as well as fines.

Civil remedy is the focus of the NOW v. Operation Rescue case. NOW initiated a RICO civil suit. Who can litigate such a suit? (1) Anyone who claims injury in business or property as a result of a RICO violation. (2) The U.S. Department of Justice. (3) Any U.S. District Court. Also important to note is that RICO civil action comes with enormous subpoena powers to compel testimony and seize documents The court can issue injunctions against the target of the suit.

And, at the court's discretion, the court can order RICO civil proceedings closed to the public. Within this Star Chamber the standard of proof required of a civil action is considerably less than that found in criminal proceedings.

The potential pot of gold for the successful plaintiff is enormous because RICO provides for monetary awards of triple the amount of damages claimed.

It's been a long time coming, but we're now hearing some of the liberal left making noises about the potential abuse inherent in the ever-expanding RICO laws. The Nation editorialized against this latest expansion. The Progressive states RICO is dangerous. Anti-nukers and campus activists worry that they may be next. They are concerned that next time they stop business as usual at a military facility, campus building, government agency, or factory gate, they may be subjected to the full prosecution of the RICO laws. The concern is that a political or economic boycott, or militant occupation and picket lines will be defined as a pattern of racketeering. Think about the legendary Rosa Parks and the Montgomery bus boycott. Such "prohibited activity" would certainly come under the shadow of RICO, had it existed then. And Rosa Parks would have had lots of co-defendants because RICO focuses on the prosecution of groups rather than on the individual.

In the NOW case, judge Souter filed a concurring but separate opinion warning, "I think it prudent to notice that RICO actions could deter protected advocacy...." Recently a New York Times op-ed piece hailed the court's decision as "a decisive new weapon against terrorism." Be forewarned.

These aren't the first warnings. In 1987 the FBI issued a statement of intent to apply RICO to "terrorist" activity. Prosecutorial guidelines issued by the Department of Justice stated that RICO establish that a group have an "economic or other identifiable goal." For the purpose of establishing an "enterprise", it merely must have "a common shared purpose." In the early 80's the government initiated its first RICO prosecution against a political group--right wing Croations. In 1994 the first RICO civil suit against a political group is against the right wing Operation Rescue, etc. It didn't and won't remain this way.

After prosecuting the Croations, the government did a 180 degree political turn and began prosecuting leftists: twenty-eight in 3 cases ("Brinks"; New York 8+; Ohio 7+). I was a defendant in one of these trials where we were charged with membership in a revolutionary organization and participation in acts--directly or indirectly--"to further our political goals."

The indictment alleged certain "manner and means" used to further the goals of the criminal "enterprise." Among them: (1) Procured and carried false identification. (2) Used a network of apartments and homes ("safehouses"). (3) Used mail drops and telephones to avoid detection. (4) Practice in the use of firearms. (5) Conducted meetings to discuss the purpose of the enterprise.

These are not illegal, per se, but constitute the web like components of a RICO Conspiracy.

Those targeted throughout these trials (and the parallel grand jury investigations) repeatedly warned of the dangerous political precedent being enforced through RICO. If they come for us in the middle of the night, they'll come for you some fine morning or afternoon. We were largely ignored by those engaged in passive resistance, boycotts, and publishing.

The so-called strict constructionists of the Supreme Court apply a very narrow interpretation of the Constitution when it comes to the rights of the oppressed. Business and property interests come first, along with the expanded police powers to protect those interests. The U.S. Department of Justice doesn't prosecute crime and corruption at the highest levels of government--where it is most pervasive. They didn't use RICO against Oliver North and the Iran-Contra "enterprise" (the very word used by North to describe the network of war criminals masquerading as patriots). They don't RICO prosecute corporations that destroy limbs and lungs of workers, or police departments that brutalize and kill.

NOW's RICO suit demonstrates the natural fault line of liberalism when it becomes overly dependent on the law, courts, and government enforcement. Allied with government prosecutors, NOW stands to gain something in the short run, but it comes with steep and protracted political costs. Virtually every progressive and radical group in the country--if its activity merits more than a few parking tickets--is now a standing target for a RICO civil suit. You can be sure the government didn't join NOW in its suit to conduct a broad search and destroy mission against the right wing. They are undoubtedly using this case as a whetting stone to hone the edge of their broad sword of RICO.

It took liberals and litigation to snatch a victory being won in the streets by pro-choice activists, and turn it into a loser for the entire left. Just as there's no such thing as being "a little bit pregnant", there is no expanding the scope of RICO "a little bit" without increasing the potential for future political repression.

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Related legal case

National Organization of Women v. Scheidler

National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (U.S. 01/24/1994)


[2] No. 92-780

[3] 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99, 1994

[4] decided: January 24, 1994.



[7] Rehnquist, C. J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Kennedy, J., joined.

[8] Author: Rehnquist

[9] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

[10] We are required once again to interpret the provisions of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970 (OCCA), Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U.S.C. §§ 1961-1968 (1988 ed. and Supp. IV). Section 1962(c) prohibits any person associated with an enterprise from conducting its affairs through a pattern of racketeering activity. We granted certiorari to determine whether RICO requires proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose. We hold that RICO requires no such economic motive.

[11] I

[12] Petitioner National Organization For Women, Inc. is a national nonprofit organization that supports the legal availability of abortion; petitioners Delaware Women's Health Organization, Inc. (DWHO) and Summit Women's Health Organization, Inc. (SWHO) are health care centers that perform abortions and other medical procedures. Respondents are a coalition of antiabortion groups called the Pro-Life Action Network (PLAN), Joseph Scheidler and other individuals and organizations that oppose legal abortion, and a medical laboratory that formerly provided services to the two petitioner health care centers.*fn1

[13] Petitioners sued respondents in the United States District Court for the Northern District of Illinois, alleging violations of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 et seq., and RICO's §§ 1962(a), (c), and (d), as well as several pendent state-law claims stemming from the activities of antiabortion protesters at the clinics. According to respondent Scheidler's congressional testimony, these protesters aim to shut down the clinics and persuade women not to have abortions. See, e. g., Abortion Clinic Violence, Oversight Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 99th Cong., 1st and 2d Sess., 55 (1987) (statement of Joseph M. Scheidler, Executive Director, Pro-Life Action League). Petitioners sought injunctive relief, along with treble damages, costs, and attorneys' fees. They later amended their complaint, and pursuant to local rules, filed a "RICO Case Statement" that further detailed the enterprise, the pattern of racketeering, the victims of the racketeering activity, and the participants involved.

[14] The amended complaint alleged that respondents were members of a nationwide conspiracy to shut down abortion clinics through a pattern of racketeering activity including extortion in violation of the Hobbs Act, 18 U.S.C. § 1951.*fn2 Section 1951(b)(2) defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Petitioners alleged that respondents conspired to use threatened or actual force, violence or fear to induce clinic employees, doctors, and patients to give up their jobs, give up their economic right to practice medicine, and give up their right to obtain medical services at the clinics. App. 66, Second Amended complaint P 97. Petitioners claimed that this conspiracy "has injured the business and/or property interests of the [petitioners]." Id., at 72, P 104. According to the amended complaint, PLAN constitutes the alleged racketeering "enterprise" for purposes of § 1962(c). Id., at 72-73, P P 107-109.

[15] The District Court dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(6). Citing Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), it held that since the activities alleged "involved political opponents, not commercial competitors, and political objectives, not marketplace goals," the Sherman Act did not apply. 765 F. Supp. 937, 941 (ND Ill. 1991). It dismissed petitioners' RICO claims under § 1962(a) because the "income" alleged by petitioners consisted of voluntary donations from persons opposed to abortion which "in no way were derived from the pattern of racketeering alleged in the complaint." Ibid. The District Court then concluded that petitioners failed to state a claim under § 1962(c) since "an economic motive requirement exists to the extent that some profit-generating purpose must be alleged in order to state a RICO claim." Id., at 943. Finally, it dismissed petitioners' RICO conspiracy claim under § 1962(d) since petitioners' other RICO claims could not stand.

[16] The Court of Appeals affirmed. 968 F.2d 612 (CA7 1992). As to the RICO counts, it agreed with the District Court that the voluntary contributions received by respondents did not constitute income derived from racketeering activities for purposes of § 1962(a). Id., at 625. It adopted the analysis of the Court of Appeals for the Second Circuit in United States v. Ivic, 700 F.2d 51 (CA2 1983), which found an "economic motive" requirement implicit in the "enterprise" element of the offense. The Court of Appeals determined that "non-economic crimes committed in furtherance of non-economic motives are not within the ambit of RICO." 968 F.2d, at 629. Consequently, petitioners failed to state a claim under § 1962(c). The Court of Appeals also affirmed dismissal of the RICO conspiracy claim under § 1962(d).

[17] We granted certiorari, 508 U.S. (1993), to resolve a conflict among the courts of appeals on the putative economic motive requirement of 18 U.S.C. § 1962(c) and (d). Compare United States v. Ivic, supra, and United States v. Flynn, 852 F.2d 1045, 1052 (CA8), ("For purposes of RICO, an enterprise must be directed toward an economic goal"), cert. denied, 488 U.S. 974 (1988), with Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342 (CA3), cert. denied, 493 U.S. 901 (1989) (because the predicate offense does not require economic motive, RICO requires no additional economic motive).

[18] II

[19] We first address the threshold question raised by respondents of whether petitioners have standing to bring their claim. Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation. Bender v. Williamsport Area School Dist., 475 U.S. 534, 546-547 (1986). Respondents are correct that only DWHO and SWHO, and not NOW, have sued under RICO.*fn3 Despite the fact that the clinics attempted to bring the RICO claim as class actions, DWHO and SWHO must themselves have standing. Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40, n. 20 (1976) citing Warth v. Seldin, 422 U.S. 490, 502 (1975). Respondents are wrong, however, in asserting that the complaint alleges no "injury" to DWHO and SWHO "fairly traceable to the defendant's allegedly unlawful conduct." Allen v. Wright, 468 U.S. 737, 751 (1984).

[20] We have held that "at the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Lujan v. Defenders of Wildlife, 504 U.S. , (1992) (Slip Op., at 5 (citations omitted). The District Court dismissed petitioners' claim at the pleading stage pursuant to Federal Rule of Civil Procedure 12(b)(6), so their complaint must be sustained if relief could be granted "under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). DWHO and SWHO alleged in their complaint that the respondents conspired to use force to induce clinic staff and patients to stop working and obtain medical services elsewhere. App. 66, Second Amended Complaint P 97. Petitioners claimed that this conspiracy "has injured the business and/or property interests of the [petitioners]." Id., at 72, P 104. In addition, petitioners claimed that respondent Scheidler threatened DWHO's clinic administrator with reprisals if she refused to quit her job at the clinic. Id., at 68, P 98(g). Paragraphs 106 and 110 of petitioners' complaint incorporate these allegations into the § 1962(c) claim. Id., at 72, 73. Nothing more is needed to confer standing on DWHO and SWHO at the pleading stage.

[21] III

[22] We turn to the question of whether the racketeering enterprise or the racketeering predicate acts must be accompanied by an underlying economic motive. Section 1962(c) makes it unlawful "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, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." Section 1961(1) defines "pattern of racketeering activity" to include conduct that is "chargeable" or "indictable" under a host of state and federal laws.*fn4 RICO broadly defines "enterprise" in § 1961(4) to "include any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." Nowhere in either § 1962(c), or in the RICO definitions in § 1961, is there any indication that an economic motive is required.

[23] The phrase "any enterprise engaged in, or the activities of which affect, interstate or foreign commerce" comes the closest of any language in subsection (c) to suggesting a need for an economic motive. Arguably an enterprise engaged in interstate or foreign commerce would have a profit-seeking motive, but the language in § 1962(c) does not stop there; it includes enterprises whose activities "affect" interstate or foreign commerce. Webster's Third New International Dictionary 35 (1969) defines "affect" as "to have a detrimental influence on -- used especially in the phrase affecting commerce." An enterprise surely can have a detrimental influence on interstate or foreign commerce without having its own profit-seeking motives.

[24] The Court of Appeals thought that the use of the term "enterprise" in §§ 1962(a) and (b), where it is arguably more tied in with economic motivation, should be applied to restrict the breadth of use of that term in § 1962(c). 968 F.2d, at 629. Respondents agree, and point to our comment in Sedima, S. P. R. L. v. Imrex Co., 473 U.S. 479, 489 (1985), regarding the term "violation," that "we should not lightly infer that Congress intended the term [violation] to have wholly different meanings in neighboring subsections."

[25] We do not believe that the usage of the term "enterprise" in subsections (a) and (b) leads to the inference that an economic motive is required in subsection (c). The term "enterprise" in subsections (a) and (b) plays a different role in the structure of those subsections than it does in subsection (c). Section 1962(a) provides that it "shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity . . . to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce." Correspondingly, § 1962(b) states that it "shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce." The "enterprise" referred to in subsections (a) and (b) is thus something acquired through the use of illegal activities or by money obtained from illegal activities. The enterprise in these subsections is the victim of unlawful activity and may very well be a "profit-seeking" entity that represents a property interest and may be acquired. But the statutory language in subsections (a) and (b) does not mandate that the enterprise be a "profit-seeking" entity; it simply requires that the enterprise be an entity that was acquired through illegal activity or the money generated from illegal activity.

[26] By contrast, the "enterprise" in subsection (c) connotes generally the vehicle through which the unlawful pattern of racketeering activity is committed, rather than the victim of that activity. Subsection (c) makes it unlawful for "any person employed by or associated with any enterprise . . . to conduct or participate . . . in the conduct of such enterprise's affairs through a pattern of racketeering activity. . . ." Consequently, since the enterprise in subsection (c) is not being acquired, it need not have a property interest that can be acquired nor an economic motive for engaging in illegal activity; it need only be an association in fact that engages in a pattern of racketeering activity.*fn5 Nothing in subsections (a) and (b) directs us to a contrary conclusion.

[27] The Court of Appeals also relied on the reasoning of United States v. Bagaric, 706 F.2d 42 (CA2), cert. denied, 464 U.S. 840 (1983), to support its conclusion that subsection (c) requires an economic motive. In upholding the dismissal of a RICO claim against a political terrorist group, the Bagaric court relied in part on the congressional statement of findings which prefaces RICO and refers to the activities of groups that "'drain[] billions of dollars from America's economy by unlawful conduct and the illegal use of force, fraud, and corruption.'" 706 F.2d, at 57, n. 13 (quoting OCCA, 84 Stat. 922). The Court of Appeals for the Second Circuit decided that the sort of activity thus condemned required an economic motive.

[28] We do not think this is so. Respondents and the two courts of appeals, we think, overlook the fact that predicate acts, such as the alleged extortion, may not benefit the protestors financially but still may drain money from the economy by harming businesses such as the clinics which are petitioners in this case.

[29] We also think that the quoted statement of congressional findings is a rather thin reed upon which to base a requirement of economic motive neither expressed nor, we think, fairly implied in the operative sections of the Act. As we said in H. J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 248 (1989), "the occasion for Congress' action was the perceived need to combat organized crime. But Congress for cogent reasons chose to enact a more general statute, one which, although it had organized crime as its focus, was not limited in application to organized crime."

[30] In United States v. Turkette, 452 U.S. 576 (1981), we faced the analogous question of whether "enterprise" as used in § 1961(4) should be confined to "legitimate" enterprises. Looking to the statutory language, we found that "there is no restriction upon the associations embraced by the definition: an enterprise includes any union or group of individuals associated in fact." Id., at 580. Accordingly, we resolved that § 1961(4)'s definition of enterprise "appears to include both legitimate and illegitimate enterprises within its scope; it no more excludes criminal enterprises than it does legitimate ones." Id., at 580-581. We noted that Congress could easily have narrowed the sweep of the term "enterprise" by inserting a single word, "legitimate." Id., at 581. Instead, Congress did nothing to indicate that "enterprise" should exclude those entities whose sole purpose was criminal.

[31] The parallel to the present case is apparent. Congress has not, either in the definitional section or in the operative language, required that an "enterprise" in § 1962(c) have an economic motive.

[32] The Court of Appeals also found persuasive guidelines for RICO prosecutions issued by the Department of Justice in 1981. The guidelines provided that a RICO indictment should not charge an association as an enterprise, unless the association exists "'for the purpose of maintaining operations directed toward an economic goal . . . .'" The Second Circuit, in United States v. I vic, supra, believed these guidelines were entitled to deference under administrative law principles. See 700 F.2d, at 64. Whatever may be the appropriate deference afforded to such internal rules, see, e. g., Crandon v. United States, 494 U.S. 152, 177 (1990) (SCALIA, J., concurring in judgment), for our purposes we need note only that the Department of Justice amended its guidelines in 1984. The amended guidelines provide that an association-in-fact enterprise must be "directed toward an economic or other identifiable goal." U.S. Dept. of Justice, United States Attorney's Manual § 9-110.360 (Mar. 9, 1984) (emphasis added).

[33] Both parties rely on legislative history to support their positions. We believe the statutory language is unambiguous, and find in the parties' submissions respecting legislative history no such "clearly expressed legislative intent to the contrary" that would warrant a different construction. Reves v. Ernst & Young, 507 U.S. , (1993), citing United States v. Turkette, 452 U.S. 576, 580 (1981), quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

[34] Respondents finally argue that the result here should be controlled by the rule of lenity in criminal cases. But the rule of lenity applies only when an ambiguity is present; "it is not used to beget one. . . . The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Turkette, supra, at 587-588, n. 10 (quoting Callanan v. United States, 364 U.S. 587, 596 (1961) (footnote omitted)). We simply do not think there is an ambiguity here which would suffice to invoke the rule of lenity. "The fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth." Sedima, 473 U.S., at 499 (quoting Haroco, Inc. v. American Nat. Bank & Trust Co. of Chicago, 747 F.2d 384, 398 (CA7 1984)).*fn6

[35] We therefore hold that petitioners may maintain this action if respondents conducted the enterprise through a pattern of racketeering activity. The questions of whether the respondents committed the requisite predicate acts, and whether the commission of these acts fell into a pattern, are not before us. We hold only that RICO contains no economic motive requirement.

[36] The judgment of the Court of Appeals is accordingly

[37] Reversed.

[38] Disposition

[39] 968 F.2d 612, reversed.

[40] JUSTICE SOUTER, with whom JUSTICE KENNEDY joins, concurring.

[41] I join the Court's opinion and write separately to explain why the First Amendment does not require reading an economic-motive requirement into the RICO, and to stress that the Court's opinion does not bar First Amendment challenges to RICO's application in particular cases.

[42] Several respondents and amici argue that we should avoid the First Amendment issues that could arise from allowing RICO to be applied to protest organizations by construing the statute to require economic motivation, just as we have previously interpreted other generally applicable statutes so as to avoid First Amendment problems. See, e. g., Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138 (1961) (holding that antitrust laws do not apply to businesses combining to lobby the government, even where such conduct has an anticompetitive purpose and an anticompetitive effect, because the alternative "would raise important constitutional questions" under the First Amendment); see also Lucas v. Alexander, 279 U.S. 573, 577 (1929) (a law "must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity"). The argument is meritless in this case, though, for this principle of statutory construction applies only when the meaning of a statute is in doubt, see Noerr, supra, and here "the statutory language is unambiguous," ante, at 11.

[43] Even if the meaning of RICO were open to debate, however, it would not follow that the statute ought to be read to include an economic-motive requirement, since such a requirement would correspond only poorly to free-speech concerns. Respondents and amici complain that, unless so limited, the statute permits an ideological organization's opponents to label its vigorous expression as RICO predicate acts, thereby availing themselves of powerful remedial provisions that could destroy the organization. But an economic-motive requirement would protect too much with respect to First Amendment interests, since it would keep RICO from reaching ideological entities whose members commit acts of violence we need not fear chilling. An economic-motive requirement might also prove to be underprotective, in that entities engaging in vigorous but fully protected expression might fail the proposed economic-motive test (for even protest movements need money) and so be left exposed to harassing RICO suits.

[44] An economic-motive requirement is, finally, unnecessary, because legitimate free-speech claims may be raised and addressed in individual RICO cases as they arise. Accordingly, it is important to stress that nothing in the Court's opinion precludes a RICO defendant from raising the First Amendment in its defense in a particular case. Conduct alleged to amount to Hobbs Act extortion, for example, or one of the other, somewhat elastic RICO predicate acts may turn out to be fully protected First Amendment activity, entitling the defendant to dismissal on that basis. See NAACP v. Claiborne Hardware, Co., 458 U.S. 886, 917 (1982) (holding that a state common-law prohibition on malicious interference with business could not, under the circumstances, be constitutionally applied to a civil-rights boycott of white merchants). And even in a case where a RICO violation has been validly established, the First Amendment may limit the relief that can be granted against an organization otherwise engaging in protected expression. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (invalidating under the First Amendment a court order compelling production of the NAACP's membership lists, issued to enforce Alabama's requirements for out-of-state corporations doing business in the State). See also NAACP v. Claiborne Hardware, Co., supra, at 930-932 (discussing First Amendment limits on the assessment of derivative liability against ideological organizations); Oregon Natural Resources Council v. Mohla, 944 F.2d 531 (CA9 1991) (applying a heightened pleading standard to a complaint based on presumptively protected First Amendment conduct).

[45] This is not the place to catalog the speech issues that could arise in a RICO action against a protest group, and I express no view on the possibility of a First Amendment claim by the respondents in this case (since, as the Court observes, such claims are outside the question presented, see ante, at 12, n. 6). But I think it prudent to notice that RICO actions could deter protected advocacy and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake.


Opinion Footnotes


[46] *fn1 The other respondents named in the complaint include the following: John Patrick Ryan, Randall A. Terry, Andrew Scholberg, Conrad Wojnar, Timothy Murphy, Monica Migliorino, Vital-Med Laboratories, Inc., Pro-Life Action League, Inc. (PLAL), Pro-Life Direct Action League, Inc. (PDAL), Operation Rescue, and Project Life.

[47] *fn2 The Hobbs Act, 18 U.S.C. § 1951(a) provides: "Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both." Respondents contend that petitioners are unable to show that their actions violated the Hobbs Act. We do not reach that issue, and express no opinion upon it.

[48] *fn3 NOW sought class certification for itself, its women members who use or may use the targeted health centers, and other women who use or may use the services of such centers. The District Court did not certify the class, apparently deferring its ruling until resolution of the motions to dismiss. All pending motions were dismissed as moot when the court granted respondents' motion to dismiss. 765 F. Supp. 937, 945 (ND Ill. 1991).

[49] *fn4 Section 1961(1) provides: "'racketeering activity' means (A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1029 (relating to fraud and related activity in connection with access devices), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to financial institution fraud), sections 1461-1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering) . . . (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), or (D) any offense involving fraud connected with a case under title 11, fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States."

[50] *fn5 One commentator uses the terms "prize," "instrument," "victim," and "perpetrator" to describe the four separate roles the enterprise may play in section 1962. See Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 Notre Dame L. Rev. 237, 307-325 (1982).

[51] *fn6 Several of the respondents, and several amici argue that application of RICO to antiabortion protesters could chill legitimate expression protected by the First Amendment. However, the question presented for review asked simply whether the Court should create an unwritten requirement limiting RICO to cases where either the enterprise or racketeering activity has an overriding economic motive. None of the respondents made a constitutional argument as to the proper construction of RICO in the Court of Appeals, and their constitutional argument here is directed almost entirely to the nature of their activities, rather than to the construction of RICO. We therefore decline to address the First Amendment question argued by respondents and the amici.