APOCALYPSE NOT: SOME REFLECTIONS ON RICO, LABOR DISPUTES, AND THE FIRST AMENDMENT. Len Niehoff Butzel Long, P.C. Ann Arbor, Michigan

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1 APOCALYPSE NOT: SOME REFLECTIONS ON RICO, LABOR DISPUTES, AND THE FIRST AMENDMENT Len Niehoff Butzel Long, P.C. Ann Arbor, Michigan In the last few years, a number of commentators and advocates have bemoaned the impact they believe the Racketeer Influenced and Corrupt Organizations Act (RICO) has had upon First Amendment rights and jurisprudence. For example, one law review author has described RICO as a dangerous weapon in fact, a bludgeon of First Amendment freedoms. In a call to action, that author has declared: [I]f Americans are to continue to enjoy the constitutional freedom to protest that was so dear to this nation s founders, action must be taken swiftly to vindicate those freedoms. 1 When RICO is applied to speech and association in the labor context, the rhetoric escalates still further. The barbarians are at the gates, we are told; and they have come armed with allegations of predicate acts and enterprises. In this article, I would like to suggest a somewhat more temperate analysis of the issues. My starting point for this analysis is a brief meditation on the importance of starting points. Our perception of danger relates directly to our perception of the thing endangered. And, so, if you believe that the First Amendment protects almost everything, then you will also believe that infringements of almost anything will violate 1 Note, Protesters, Extortion, and Coercion: Preventing RICO from Chilling First Amendment Freedoms, 75 Notre Dame L. Rev. 691, (1999).

2 the First Amendment. This type of thinking has infected some of the criticisms of the relationship between RICO and the First Amendment. In one labor-related RICO case that our firm litigated, the Defendants filed a Motion to Dismiss that contained the following sentence: Under the First Amendment, speech and associational activities simply cannot be unlawful acts, pursuant to the various subsections of RICO or otherwise. 2 This is, of course, a dazzlingly silly sentence. Many speech and associational activities qualify as unlawful acts, and our society harshly punishes them without violating the First Amendment or otherwise disturbing the peaceful slumber of our Founding Fathers. We punish the robber who tells the bank clerk to fill a bag with small bills; we punish criminal conspirators; we punish the prostitute who does nothing more than extend a verbal offer; we punish the jilted paramour who sends a blackmail note to the married lover; we punish the zealot who makes threatening telephone calls to his congressman; we punish the lawyer who makes contemptuous remarks to the court; we punish those who libel, and slander, and cast others in a false light, and so on. And perhaps most importantly for purposes of RICO we have long punished those who commit extortion, the villains who threaten us or our families in order to gain some advantage for themselves, the folks who make us offers that we can t refuse (or else). Moreover, even protected and lawful speech can serve as evidence of unprotected and unlawful conduct. Surely everyone would agree that my written pamphlet inviting people to join a demonstration at a particular place and time deserves 2 This sentence was followed by an even more peculiar sentence: It is well-settled that civil liability cannot be premised on Constitutionally protected speech or conduct The point seems to be that speech which is protected cannot be punished, which seems akin to a declaration that dogs who can t

3 protection under the First Amendment. But surely everyone would also agree that this pamphlet might be used as evidence against me if I were being prosecuted for violent acts that occurred at the demonstration, and I denied planning, attending, or knowing anything about it. Surely everyone would agree that I have a First Amendment right to tell my friends that I hate my barber. But surely everyone would also agree that these statements might be used against me if he turns up with a pair of scissors stuck between his ribs. Accordingly, contrary to the way some have framed the issue, there isn t anything startling or disturbing about the fact that RICO may penalize some speech or association, or may rely upon speech or association as evidence of unlawful conduct. Feigning amazement and concern about such a prospect does not serve as a rational starting point. Instead, we have to start by asking whether RICO threatens to penalize speech or association that courts have previously viewed as protected. My own view is that it does not. In my experience, those who have argued that RICO threatens protected speech have pointed to a small number of cases. The following are the cases that I have routinely seen cited and discussed. I will attempt to show that those cases do not lead where the opponents of RICO would follow them. Letter Carriers v. Austin, 418 U.S. 264 (1974) is often cited for the proposition that statements made in the context of heated labor disagreements cannot serve as a basis for liability because of protection afforded by the First Amendment and federal law. Therefore, the argument goes, RICO cannot be used to punish threatening bark cannot be heard barking. As Ernest Hemingway is supposed to have said to Gertrude Stein, A tautology is a tautology is a tautology.

4 statements made on picket lines, in newsletters or fliers, and so on. But this is simply a gross over-reading, indeed misreading, of Letter Carriers. Letter Carriers was a libel case in which a union newsletter identified the plaintiff as a scab and provided an abusive definition of that term. The Supreme Court simply held that Plaintiff could not maintain a defamation action because he was, indeed, a scab as that term is commonly defined, and because the abusive printed definition was merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members toward those who refuse to join. The case did not involve and had nothing to do with personal threats, extortions, violent picket lines, or any of the other kinds of incidents to which RICO has been applied. Letter Carriers does not stand for the absurd proposition that you can threaten the lives and safety of a worker and their family unless they support a strike, and then defend yourself by contending you were just indulging in lusty and imaginative expression. Another case that is often cited is NAACP v. Claiborne Hardware, 458 U.S. 886 (1981). In one brief I recently reviewed, the RICO defendants invoked this case in support of the proposition that conduct at rallies is protected by the First Amendment and therefore cannot provide a basis for liability This is mystifying. Claiborne Hardware arose from a seven-year boycott of white businesses by black individuals, during which there were marches, picketing, threats, and several significant acts of violence. The Mississippi courts imposed substantial damages upon a number of individuals and organizations for boycott-related injuries. It is certainly true that the United States Supreme Court afforded First Amendment protection to some strong language, firmly upheld the right to protest, held damages could not be awarded for the

5 consequences of nonviolent and protected activity, and cautioned that the First Amendment restricts the ability of a State to impose liability on an individual solely because of his association with another. But it is also certainly true that the Supreme Court recognized that [t]he First Amendment does not protect violence No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and threats of violence. And it is also certainly true that the Supreme Court recognized that fighting words those that provoke immediate violence are not protected by the First Amendment, and that words that create an immediate panic are not entitled to constitutional protection. Surely, there are many things including many ugly and unpleasant things -- that happen at rallies and demonstrations that the First Amendment insulates from criminal and civil actions, and rightly so. Nevertheless, Claiborne Hardware does not stand for the proposition that such events create magical zones in which laws prohibiting extortion, assaults, and violence no longer apply because of the First Amendment. Finally, there is a collection of cases related to abortion protests that have received considerable attention, the most recent (and most directly relevant) of which is Planned Parenthood v. American Coalition of Life Activists, 244 F.3d 1007 (9 th Cir. 2001). In that case, anti-abortion activists intimidated abortion providers by publishing their names and addresses. A variety of organizations and physicians brought actions pursuant to the Freedom of Access to Clinic Entrances Act of 1994 and RICO. A jury awarded more than $100 million in actual and punitive damages against the activists, and the district court enjoined the speech. The Ninth Circuit vacated and remanded, finding the result below inconsistent with the First Amendment.

6 The case should offer some reassurance to those who believe that RICO is running amok through First Amendment jurisprudence. The case reflects a very strong some might argue too strong endorsement of the values of public speech on matters of heated controversy. The case should, however, offer no reassurance to those who believe that the First Amendment insulates extortion and threats from RICO liability. This is so for several reasons. First, this was not a case that involved a clear threat. As the Court noted [n]either the posters nor the website [where the information appeared] contained any explicit threats against the doctors. In fact, the Court observed that none of the statements [defendant] is accused of making mention violence at all. Of course, this is not simply a matter of literalism; the Court emphasized that the words actually used are not dispositive, because a threat may be inferred from the context in which the statements are made. Second, the Court clearly recognized that the First Amendment does not protect threats and extortion. The Court pointed out that [t]he jury would be entitled to hold defendants liable if it understood the statements as expressing their intention to assault the doctors Indeed, the Court underscored that such threats are unprotected by the First Amendment, regardless of whether the activists had the means or intent to carry out the threats So long as they should have foreseen that the doctors would take the threats seriously, the speech is unlawful. Finally, the Court stressed the remoteness of the statements from their subjects. The Court noted that [t]he doctors do not claim that [defendant s] speech amounted to incitement, the statements were made far away from the doctors, and the statements were in fact not followed by acts of violence. Needless to say, this holding offers little consolation to a

7 striker on a picket line who is shouting threats in the face of someone passing through and hitting their car with a sign. In this response to RICO s critics I do not mean to be entirely dismissive of the concerns articulated. There is, of course, heightened sensitivity whenever we punish speech or association. There are, of course, nagging definitional issues about what constitutes a threat, where the line rests between persuasion and extortion, what constitutes speech as opposed to conduct, and what it takes to turn a meeting or conversation into a conspiracy. But these concerns existed long before RICO, and they will continue to exist regardless of what becomes of RICO. And, if there is convincing evidence that RICO has heightened these concerns, then I do not think I have seen it. RICO is a complex statute that results in complex litigation and raises complex questions, and reasonable people can disagree about it. Reasonable people cannot, however, condemn RICO for depriving them of First Amendment protections that do not exist.

8 Len Niehoff is a litigator with the Michigan firm of Butzel Long. He has handled a number of cases involving First Amendment issues and RICO, is the author of more than 100 publications, and has taught law school courses in the First Amendment. He is listed in Who s Who in America and a variety of other publications.