U.S. Supreme Court
NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S.
NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S.
NATIONAL ORGANIZATION FOR WOMEN, INC., ETC., ET AL.,
PETITIONERS v. JOSEPH
SCHEIDLER ET AL.
CERTIORARI TO THE UNITED STATES OF APPEALS FOR THE SEVENTH CIRCUIT
Argued December 8, 1993
Decided January 24, 1994
In this action, petitioner health care clinics alleged, among other things,
that respondents, a coalition of antiabortion groups called the Pro-Life Action
Network (PLAN) and others, were members of a nationwide conspiracy to shut down
abortion clinics through a pattern of racketeering activity - including
extortion under the Hobbs Act - in violation of the Racketeer Influenced and
Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970,
18 U.S.C. 1961-1968. They claimed that respondents conspired to use threatened
or actual force, violence, or fear to induce clinic employees, doctors, and
patients to give up their jobs, their right to practice medicine, and their
right to obtain clinic services; that the conspiracy injured the clinics'
business and property interests; and that PLAN is a racketeering enterprise. The
District Court dismissed the case pursuant to Federal Rule of Civil Procedure
12(b)(6). It found that the clinics failed to state a claim under 1962(c) -
which 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 . . . in the conduct of such enterprise's
affairs through a pattern of racketeering activity or collection of unlawful
debt" - because they did not allege a profit-generating purpose in the activity
or enterprise. It also dismissed their conspiracy claim under 1962(d) on the
ground that the 1962(c) and other RICO claims they made could not stand. The
Court of Appeals affirmed, agreeing that there is an economic motive requirement
implicit in 1962(c)'s enterprise element. Page II
1. The clinics have standing to bring their claim. Since their
complaint was dismissed at the pleading stage, the 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. Nothing more than the complaint's extortion and injury allegations
are needed to confer standing at this stage. Pp. 3-6.
2. RICO does not require proof that either the racketeering enterprise or
the predicate acts of racketeering in 1962(c) were motivated by an economic
purpose. Nowhere in either 1962(c) or in 1961's definitions of "enterprise"
and "pattern of racketeering activity" is there any indication that such a
motive is required. While arguably an enterprise engaged in interstate or
foreign commerce would have a profit-seeking motive, 1962(c)'s language also
includes enterprises whose activities "affect" such commerce. Webster's
Third New International Dictionary defines "affect" as "to have a
detrimental influence on"; and an enterprise surely can have such an
influence on commerce without having its own profit-seeking motives. The use
of the term "enterprise" in subsections (a) and (b), where it is arguably
more tied in with economic motivation, also does not lead to the inference
of an economic motive requirement in subsection (c). In subsections (a) and
(b), an "enterprise" is an entity acquired through illegal activity or the
money generated from illegal activity: the victim of the activity. By
contrast, the "enterprise" in subsection (c) connotes generally the vehicle
through which the unlawful pattern of racketeering activity is committed.
Since it 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. Nor is an economic motive requirement supported by
the congressional statement of findings that prefaces RICO and refers to
activities that drain billions of dollars from America's economy. Predicate
acts, such as the alleged extortion here, may not benefit the protestors
financially, but they still may drain money from the economy by harming
businesses such as the clinics. Moreover, a statement of congressional
findings is a rather thin reed upon which to base a requirement neither
expressed nor fairly implied from the Act's operative sections. Cf. United
States v. Turkette, 452 U.S. 576. The Department of Justice's 1981
guidelines on RICO prosecutions are also unpersuasive, since 1984 amendments
broadened the focus of RICO prosecutions from those association-in-fact
enterprises that exist "for the purpose of maintaining Page III operations
directed toward an economic goal" to those that are "directed toward an
economic or other identifiable goal." In addition, the statutory language is
unambiguous, and there is no clearly expressed intent to the contrary in the
legislative history that would warrant a different construction. Nor is
there an ambiguity in RICO that would suffice to invoke the rule of lenity.
See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499. Pp. 6-12.
968 F.2d 612, reversed.
REHNQUIST, C.J., delivered the opinion for a unanimous Court. SOUTER, J.,
filed a concurring opinion, in which KENNEDY, J., joined.
[ NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 1]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
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.
Petitioner National Organization For Women, Inc. (NOW) 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),
[ NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 2]
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.1
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
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. 1951.2 Section 1951(b)(2) defines extortion as [ NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER,
___ U.S. ___ (1994) , 3] "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 _ 97. Petitioners claimed that
this conspiracy "has injured the business and/or property interests of the
[petitioners]." Id., at 72, _ 104. According to the amended complaint, PLAN
constitutes the alleged racketeering "enterprise" for purposes of 1962(c). Id.,
at 72-73, __ 107-109.
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
"involve[d] 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 [ NATIONAL ORGANIZATION FOR WOMEN, INC.
v. SCHEIDLER, ___ U.S. ___ (1994) , 4] 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.
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
"noneconomic crimes committed in furtherance of noneconomic 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).
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, 886 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).
We first address the threshold question raised by respondents
of whether petitioners have standing to bring their claim. Standing represents a
jurisdictional requirement [ NATIONAL
ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 5] 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.3
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
We have held that, "[a]t 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 [ NATIONAL
ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 6]
working and obtain medical services elsewhere. App. 66, Second Amended Complaint
_ 97. Petitioners claimed that this conspiracy "has injured the business and/or
property interests of the [petitioners]." Id., at 72, _ 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, _ 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.
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.4
RICO broadly defines [ NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER,
___ U.S. ___ (1994) , 7] "enterprise" in 1961(4) to "includ[e] 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.
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 [ NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER,
___ U.S. ___ (1994) , 8] interstate or foreign commerce without having
its own profit-seeking motives.
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 "[w]e should
not lightly infer that Congress intended the term [violation] to have wholly
different meanings in neighboring subsections."
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
[ NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 9]
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.
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.5 Nothing in subsections (a) and (b)
directs us to a contrary conclusion.
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).
[ NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 10]
The Court of Appeals for the Second Circuit decided that the sort of activity
thus condemned required an economic motive.
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
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),
"[t]he 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."
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
"[t]here 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. [
NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 11]
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.
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. Ivic, 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).
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).
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 [ NATIONAL
ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 12]
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. "[T]he 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)).6
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.
The judgment of the Court of Appeals is accordingly
[Footnote 1] The other respondents named
in the complaint include the following: John Patrick Ryan, Randall A. Terry,
Andrew Scholberg, Conrad Wojnar, Timothy Murphy, Monica Migliorino, VitalMed
Laboratories, Inc., Pro-Life Action League, Inc. (PLAL), Pro-Life Direct Action
League, Inc. (PDAL), Operation Rescue, and Project Life.
[Footnote 2] The Hobbs Act, 18 U.S.C.
1951(a) provides: "Whoever in any way or degree obstructs, delays, or affects
commerce or the movement [ NATIONAL ORGANIZATION
FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 3] 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.
[Footnote 3] 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).
[Footnote 4] 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 [ NATIONAL ORGANIZATION FOR WOMEN, INC. v.
SCHEIDLER, ___ U.S. ___ (1994) , 7] (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."
[Footnote 5] 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).
[Footnote 6] 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. [ NATIONAL
ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 1]
JUSTICE SOUTER, with whom JUSTICE KENNEDY joins, concurring.
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.
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 [ NATIONAL
ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER, ___ U.S. ___ (1994) , 2] 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.
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.
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 [ NATIONAL ORGANIZATION FOR WOMEN, INC. v. SCHEIDLER,
___ U.S. ___ (1994) , 3] 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).
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. Page I
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