By Walter M. Weber

A group of people sit down and block the entrance to a business. The leader tells the owner, "We'll leave when you change your policies." Another group of people sit down and block the entrance to a business. The leader of the second group tells the owner, "We'll leave when you pay me $500."

The National Organization for Women (NOW) says there is no legal difference between Group One and Group Two. Both, NOW claims, are "extortionists."

Why is NOW making what appears to be a ridiculous argument? Because that's the only way NOW can defend its use of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act against pro-life protestors.

When Congress was considering RICO, Senators like Ted Kennedy and organizations like the ACLU voiced concern that RICO could be used as a weapon to crush protesters. When RICO was passed in 1970, the Vietnam War was a hot issue and the 1960's civil rights protests against segregation were recent events. So Congress, to alleviate those concerns, carefully spelled out which crimes could fall under RICO. Offenses characteristic of mobsters - crimes like murder, kidnapping, arson, robbery, extortion, illegal gambling, and dealing in narcotics - were included. However offenses associated with protesters - like trespass, obstruction, disorderly conduct, even assault, battery, resistance to arrest, and rioting - were left out of RICO. Clearly RICO targets organized crime, not organized protest.

NOW, nevertheless, sought to shoehorn its ideological arch-enemy - the pro-life movement - into RICO. In the case of NOW v. Scheidler, NOW concocted the theory that Operation Rescue-style sit-ins and other technically illegal social protest tactics qualify as "extortion," and thus "racketeering," under RICO. Amazingly, NOW convinced a federal trial judge and a three-judge federal appeals court to buy into NOW's distorted reading of "extortion."

But the day of reckoning has come. In April 2002, the U.S. Supreme Court agreed to review the Scheidler case, and at oral arguments before the Court on December 4, 2002, the Justices probed NOW's peculiar legal theory with pointed questions. In the process, NOW's theory emerged in all its glory.

Would NOW's version of extortion really target virtually all illegal protest activity? The answer must be yes when you consider NOW's argument. NOW's attorney conceded that, under NOW's view, if feminists were to threaten to damage a country club's golf course - unless the club stopped discriminating against women - that would be extortion. According to NOW, demonstrations for gender equality, if they cross the line into illegal tactics (trespass, obstruction, property damage), become extortion and racketeering.

Does NOW's version of extortion produce absurd results? Consider the reasoning of NOW's attorney who contended that forcing a person to write (or not write) something is extortion, but that forcing someone to speak (or not speak) something is not. NOW says the difference is that a pen is "property," and interfering with the free use of a pen is the "obtaining of property," a requirement of extortion.

The Supreme Court should put a speedy end to such nonsense. There is a world of difference between someone who pressures a business for a payoff, and someone who pressures a business to change its policies (e.g., to stop polluting, to stop selling porno, to stop discriminating against women, etc.). NOW's failure to grasp this difference is bad policy, bad logic, and bad law.

Walter M. Weber is a Senior Litigation Counsel with the American Center for Law and Justice. He is one of the attorneys representing defendant Operation Rescue in the consolidation of the cases of Scheidler v. National Organization for Women and Operation Rescue v. National Organization for Women currently before the Supreme Court.