[Congressional Record Volume 144, Number 141 (Friday, October 9, 1998)]
[Senate]
[Pages S12179-S12181]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. COATS:
  S. 2614. A bill to amend chapter 96 of title 18, United States Code, 
to enhance the protection of first amendment rights; to the Committee 
on the Judiciary.


                the first amendment freedoms act of 1998

  Mr. COATS. Mr. President, in 1970, Congress passed provisions known 
as the Racketeer Influenced and Corrupt Organization Act, or RICO, as 
part of the larger Organized Crime Control Act of 1970. The bill was 
designed to help law enforcement officials better address the plague of 
organized crime, and has been a valuable tool in this effort.
  During drafting of this legislation, concerns were raised by several 
members of this body, including my colleague from Massachusetts, 
Senator Kennedy, that the bill was written so broadly that it might be 
used against organized civil disobedience, including anti-war 
demonstrators. This was at the height of the Vietnam War, and anti-war 
demonstrations were taking place across the country. Senator Kennedy, 
along with Senator Hart of Michigan, submitted their views as part of 
the Senate Judiciary Committee Report on the Organized Crime Control 
Act of 1969.
  I think their words deserve our attention today. They recognized 
that, and I quote: ``To combat organized crime, as distinguished from 
other forms of criminal activity, requires procedures specifically 
designed for that purpose.'' They continued, ``The reach of this bill 
goes beyond organized criminal activity. Most of its features propose 
substantial changes in the general body of criminal procedures. 
Finally, their statement notes that, ``Amended to restrict its scope 
solely to organized criminal activity and to assure the protection of 
individual rights, the bill could contribute important and useful means 
of eradicating organized crime.'' Mr. President, I ask that a copy of 
this statement from the Judiciary Committee Report be included in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Individual Views of Messrs. Hart and Kennedy

       To combat organized crime, as distinguished from other 
     forms of criminal activity, requires procedures specifically 
     designed for that purpose.

[[Page S12180]]

       S. 30, the Organized Crime Control Act of 1969, is billed 
     as a means of providing the procedures necessary to eradicate 
     the disease of organized crime and its serious threat to our 
     national security.
       But the reach of this bill goes beyond organized criminal 
     activity. Most of its features propose substantial changes in 
     the general body of criminal procedures.
       New rules of evidence and procedure applicable to all 
     criminal jurisprudence are established.
       Amended to restrict its scope solely to organized criminal 
     activity and to assure the protection of individual rights, 
     the bill could contribute important and useful means of 
     eradicating organized crime.
       Mr. Coats, in direct response to the legitimate concerns 
     raised by Senator Kennedy, Senator Hart, the ACLU, and 
     others, the language of the Organized Crime Control Act was 
     modified to narrow the definition of racketeering activity. 
     These modifications were seen as adequate, and debate moved 
     on to other issues. It is clear from the record of 
     congressional debate that nobody--not the bill's author, 
     Senator McClellan, not the Judiciary Committee, not the House 
     of Representatives, not my colleague from Massachusetts--
     nobody was interested in prosecuting civil disobedience as 
     organized crime.
       Mr. President, our country has a long and distinguished 
     history of political free speech under the First Amendment. 
     At times, political and social protesters have seen civil 
     disobedience as the best manner to bring the message home. 
     From abolitionists of the 18th and 19th centuries to the 
     civil rights demonstrations of Dr. Martin Luther King, non-
     violent civil disobedience has played a major role in shaping 
     this nation. While civil disobedience is inherently 
     ``disobedient'' to the law, and while such violations of the 
     law have consequences, there is a vast difference between 
     organized crime and organized political protest.
       Today, this difference is becoming much less noticeable As 
     many of us know, on April 20, 1998, a U.S. District Court 
     jury ruled that anti-abortion leaders had violated federal 
     anti-racketeering statutes by engineering a nationwide 
     conspiracy that involved 21 acts of extortion, mostly the 
     formation of barricades that prevented the use of clinics 
     performing abortions. The defendants were ordered to pay 
     nearly $86,000 in damages. That penalty was automatically 
     tripled under RICO. We are not talking about abortion 
     protesters being charged with political violence--murder, 
     bombing of abortion clinics, or physical violence against 
     patients or employees of the clinics involved. Rather, we are 
     talking about these protesters being charged as racketeers 
     for non-violent forms of civil disobedience.
       This is not an isolated decision, but rather followed on 
     the heels of a 1994 Supreme Court opinion regarding the scope 
     of RICO. In the case of NOW v. Scheidler, the Supreme Court 
     ruled that the National Orgnaization for Women could bring 
     suit under RICO against a coalition of anti-abortion groups, 
     alleging the defendants were members of a nationwide 
     conspiracy to shut down abortion clinics through a pattern of 
     racketeering activity. Both the U.S. District Court and Court 
     of Appeals had dismissed the suit on grounds that RICO 
     implied an ``economic motive'' for the racketeering activity. 
     The Supreme Court reversed the lower court decisions in 
     finding that the letter of the law in RICO did not require 
     proof that either racketeering enterprise or predicate acts 
     of racketeering be motivated by economic purpose. The Supreme 
     Court then remanded the case to the District Court.
       The Supreme Court ruling and the subsequent U.S. District 
     Court decision have radically expanded the scope of federal 
     anti-racketeering statues in direct contradiction to the 
     clear intent of Congress in the creation of RICO. The result 
     of the rulings is that civil disobedience is now open to 
     prosecution as organized crime. This is already having a 
     chilling effect on free speech in this country.
       Mr. President, before going further on this matter, let me 
     make several things very clear. First, this is not an 
     abortion issue. The Senate must continue to wrestle with the 
     morality of the legality of abortion in this country, and my 
     colleagues are well aware of my deep convictions on this 
     matter, but that is not what I am here to discuss. The 
     application of federal anti-racketeering statues to political 
     protest and civil disobedience is not an abortion issue--it 
     is a First Amendment issue. While the catalyst for the 
     expansion of RICO was its application to pro-life 
     demonstrators, the case could just as easily could have 
     involved civil rights advocates, animal rights activities, 
     anti-war demonstrators, or AIDS activists. The issue is not 
     abortion, it is political speech.
       Let me also make clear that the issue is not whether civil 
     disobedience should be punished: it is, and it should be. 
     This country has a proud history of both the rule of law and 
     the practice of civil disobedience. In a nation under the 
     rule of law, civil disobedience has legal consequences. I am 
     not here to debate whether abortion protesters, AIDS 
     activists, or animal rights demonstrators should abide by the 
     law, or, when they break the law, they should be accountable. 
     There are federal and state laws on the books dealing with 
     trespassing, vandalism, and many other crimes commonly 
     associated with civil disobedience. However, the punishment 
     ought to fit the crime. What we have, in the expansion of 
     RICO, is the application of the heavy rod intended for 
     organized crime, being turned against organized political 
     protest.
       Finally, let me emphasize that I am not here to debate 
     political violence. Murder, arson, death threats, physical 
     harm--these are not acts of civil disobedience, but of 
     terrorism, and RICO specifically applies to a pattern of such 
     activities. I am not concerned with protecting these actions, 
     whether engaged in by anti-abortion demonstrators or 
     environmental activists.
       What does concern me deeply, is the prosecution of non-
     violent civil disobedience as racketeering activity. Under 
     RICO, whoever participates in a commercial ``enterprise'' or 
     an ``enterprise'' which has an impact on commerce, through a 
     pattern of specific criminal ``racketeering'' activity, can 
     be penalized. Typical ``racketeering'' activity includes 
     murder, kidnapping, robbery, arson, bribery, loan-sharking, 
     mail fraud, wire fraud, obstruction of justice, witness 
     retaliation, or extortion. Also included as racketeering 
     activity is violation of the Hobbs Act, which modified the 
     Anti-Racketeering Act of 1934. The Hobbs Act includes a 
     provision which prohibits affecting commerce by ``extortion'' 
     using ``wrongful or threatened force, violence, or fear.''
       It is this final provision which has been expanded by the 
     Courts to apply to those engaged in civil disobedience. While 
     under common law understanding, ``extortion'' requires the 
     actual trespatory taking of property, the term is now being 
     interpreted as ``coercion,'' which involves compulsion of 
     action. Political and social protest by its very nature 
     attempts to compel a change of actions, whether it be the 
     actions of a logging company cutting old growth forests, a 
     restaurant that will not serve minorities, a business that 
     will not promote women, or a health clinic performing 
     abortions. Such organized efforts to compel action, inherent 
     in civil disobedience, are now captured in the net of RICO.
       As I stated earlier, Congress did not envision, and could 
     not conceive, of this application of the law, especially in 
     the wake of the modifications undertaken at the time. In its 
     original draft, RICO specified, and I quote, ``any act 
     dangerous to life, limb, or property,'' as predicate 
     offenses. In direct response to concerns raised by several 
     members of Congress, including the Senator from 
     Massachusetts, that this wording could put civil 
     disobedience into jeopardy, the language was redrafted to 
     clearly define RICO's predicate offenses, specifying 
     particular state and federal offenses. No offense remotely 
     related to rioting, trespass, vandalism, or any other 
     aspect of a demonstration that might stray beyond 
     constitutional limits was included as racketeering 
     activity. While state and federal law continues to apply 
     to many of these violations, these were intentionally 
     excluded from the scope of anti-racketeering laws and the 
     increased punishments these entailed.
       Mr. President, in response to recent Court rulings which 
     have grossly expanded the scope of federal anti-racketeering 
     laws to cover non-violent political protest, I am introducing 
     the First Amendment Freedoms Act today. This legislation 
     restores RICO to its originally intended application of 
     organized criminal activity, and codifies Supreme court 
     opinion regarding the protection of First Amendment rights.
       Specifically, the bill does two things. First, it narrows 
     the judicially expanded definition of ``extortion'' under 
     RICO, which has allowed for the erroneous prosecution of 
     civil disobedience under this statute. Second, it assures 
     that, in any civil action brought under RICO or any other 
     legal theory, the litigation is conducted consistent with the 
     First Amendment guidelines of the Supreme Court.

[[Page S12181]]

       Our nation has a long and distinguished history of non-
     violent civil disobedience as a legitimate form of political 
     and social protest. Such activity has legal consequences. 
     However, such activity is not the equivalent of organized 
     crime. The prosecution of political and social protest under 
     federal anti-racketeering statutes is entirely contrary to 
     anything Congress foresaw in enacting RICO. Congress should 
     act expeditiously to correct this obvious misapplication of 
     the law.
       Martin Luther king, Jr., in his acceptance of the Nobel 
     Peace Prize in 1964, said that: ``Nonviolence is the answer 
     to the crucial political and moral questions of our time; the 
     need for man to overcome oppression and violence without 
     resorting to oppression and violence.'' Those who engage in 
     non-violent civil disobedience should not, and it was never 
     the intent of Congress that they would be, prosecuted as 
     criminal racketeers. If the current interpretation of the law 
     had been in effect in the 1950's and 60's, the civil rights 
     movement could easily have been quashed. I trust that 
     Congress will take steps to address this matter in a timely 
     manner.
  Mr. President, I send my bill to the desk, and I yield the floor.
                                 ______