Some have claimed that NOW v. Scheidler, and the verdict reached by a six-person jury after a seven week-long trial, constitute an attack on the First Amendment. This is incorrect. NOW v. Scheidler is a prime example of a case in which First Amendment activity was protected — in fact, specifically excluded — while the non-First Amendment activity, that manifested itself in the form of threats, force and violence, was punished.
Far from simply being individuals exercising their free speech, the defendants in this case operated and managed an enterprise through which specific illegal activities were carried out. RICO only outlaws certain activities. In this case, there was extensive evidence of extortion, threats and acts of violence carried out either by the defendants or their coconspirators. These defendants and their coconspirators acted without regard to the law and without regard for the rights of others. They decided that they would impose their will on others by denying women access to medical services and denying clinics the right to perform such services — by "whatever means available" [their words]. Those "means" went far beyond the bounds of the First Amendment.
For example, in Delaware, Joseph Scheidler and three other large men illegally entered a clinic, trapping the clinic administrator inside. The men put the phones on hold — effectively cutting her off from the outside world — and told her they were there to "case the place." This was shortly after several clinics had been bombed. In another incident, Scheidler went to Pensacola and met with John Burt and Joan Andrews. Together, they discussed and planned an event to take place at the Ladies Center. The next day, while Scheidler was outside doing "P.R." (he did not want to get arrested), Burt, Andrews and two others burst into the clinic, shoved the administrator to the floor and slammed an escort up against a wall. Then they went upstairs to wreck equipment. Still more evidence of force and violence came as the jury heard from a doctor who had been stalked, her house surrounded, and her life threatened. She was also physically assaulted by Monica Miller and Matt Trewhella. The jury also heard evidence of scores of blockades, which deprived people of access to the clinics, and where people were assaulted for daring to try to enter. One woman, who was going to see her doctor for postoperative surgery (surgery that in no way was related to abortion and that had been done to try and save her reproductive organs), was hit over the head with a picketer's sign. And the jury heard more.
As was apparent from the evidence the jury heard, this case was about behavior outside the scope of the First Amendment. This case was about force and violence, often carried out by these defendants, while at other times carried out by their coconspirators. Activities that are clearly protected by the First Amendment such as: picketing, leafleting, prayer vigils, talking to women and staff and trying to get them to change their minds were not part of this case.
In this case, the jury heard about threats issued to reproductive health care providers by Joseph Scheidler, Randall Terry, Flip Benham and Pat Mahoney, among others. For example, just days after Dr. David Gunn was murdered, Terry told provider Susan Hill: "We know where you are and we are coming to get you."
The attorneys for NOW and the clinics, as well as the judge who presided over the trial, were extremely sensitive to the First Amendment. In fact, the parties stipulated to, and the judge read, an instruction to the jury detailing that activities such as leafleting, picketing and lobbying were protected by the First Amendment and were not a part of the case. Where the plaintiffs drew the line, however, was at allowing the defendants to falsely characterize their activity as First Amendment activity. Such a claim is an affront to real First Amendment activity and the Chicago jury saw through it.
Because of this decision, the rights of all Americans, regardless of their position on the issue of abortion, are secure. The First Amendment rights of protesters have been protected as fiercely as the rights of the women who use the clinics and the service providers who work there.
Sara Love is an attorney with Robinson, Curley & Clayton, the lead firm representing the plaintiffs in NOW v. Scheidler.