The Right to Choose Protest

Wall Street Journal, March 2, 2003 REVIEW & OUTLOOK

The First Amendment wins one in court--and Sen. Schumer loses.

The Supreme Court reminded everybody Wednesday that one of America's founding principles Is the right to nonviolent protest. In an 8-1 ruling that found A-list Hollywood liberals (Martin Sheen) and antiabortion advocates (Randall Terry) both praising the outcome, the Justices reaffirmed this nation's long and proud history of civil disobedience.

The New York Democrat has been thwarting bipartisan bankruptcy reform legislation by refusing to remove a controversial rider (which has nothing to do with bankruptcy) that singles out peaceful abortion protesters for severe penalties. In our reading the High Court has just indirectly exposed Mr. Schumer's poison pill as unconstitutional. But more on that later.

The encouraging news here is that the First Amendment prevailed. Furthermore, an unusually wide range of interest groups put aside their politics to push for the greater good. Support for the abortion protesters came not only from the social conservatives you would expect but also from the likes of People for the Ethical Treatment of Animals, the Southern Christian Leadership Conference and civil liberties groups.

Not that this isn't about self-interest, too. If a candlelight vigil outside Planned Parenthood has the potential to make you liable for extortion, what about an anti -globalization protest outside a WTO meeting, or an anti-meat demonstration outside Burger King? In her short concurring opinion, liberal Justice Ruth Bader Ginsburg noted in a footnote that the Solicitor General had admitted that NOW's 'interpretation would have been applicable to the civil rights sit-ins" of the 1960s.

NOW's argument, which has been wending Its way through the courts for years, was that abortion opponents were in violation of the RICO and Hobbs acts, federal statutes enacted to pursue Tony Soprano, not local church groups passing out flyers on a sidewalk.

NOW nonetheless claimed the latter was engaged in racketeering and conspiring to "extort" the "property" of abortion seekers by demonstrating in front of clinics. Since RICO violators are susceptible to treble damages, NOW had hoped either to bankrupt its political opponents or scare them away with the threat of a financially debilitating verdict. Mr. Terry, for example, filed for bankruptcy in 1998 owing $1.6 million to NOW and Planned Parenthood.

But Chief Justice William Rehnquist, writing for the majority, cited NOW's "fatally flawed" efforts as an attempt to extend the reach of these laws well beyond what they were originally intended to cover. "Such a significant expansion," wrote Chief Justice Rehnquist, "must come from Congress, not from the courts." And Justice Ginsburg reiterated that the court was "rightly reluctant, as I see it, to extend RICO's domain further."

Which brings us back to Mr. Schumer's bankruptcy bill amendment, which is predicated on suing abortion protesters under racketeering laws. Sorry, Charlie. Mr. Schumer's goal is to strip people who engage in peaceful sit-ins of any bankruptcy-law protections. His rider uses deliberately unspecific language--"physical obstruction," "Interfere," "force or threat of force"--to describe behavior that might give picketers or pamphleteers pause, especially if a conviction could cost them their house.

Mr. Schumer claims his target is violent abortion activists, and of course violent demonstrators in the service of any cause should be dealt with harshly. But there are already plenty of laws on the books that do precisely that. And since someone crazy enough to harm an abortion doctor won't be dissuaded by a tweak in the bankruptcy code, the only possible effect of Mr. Schumer's amendment would be to quell peaceful protests.

Congressman Chris Smith (R., N.J.), who refused to buckle to Mr. Schumer last year despite business lobbying pressure, now has the Supreme Court on his side. But the biggest winner is the right of all Americans, left or right, to protest under the First Amendment.