Several state legislatures have reacted to recent riots — both pre- and post-election — by enacting new, harsher laws under which rioters can be prosecuted. Not all of these were bad ideas — rioting is a real crime and deserves to be punished severely.
But Republicans in the Arizona Senate received much criticism when it passed a bill that actually would allow the organizers of nearly any event to be tried under the state’s Racketeering, Influence and Corrupt Organizations statute if their event gave way to rioting.
Fortunately, the Republican Speaker of the Arizona House has announced that the bill is dead on arrival in that chamber. And that’s a good thing. Protestors aren’t gangsters, even when they’re obnoxious and even when they make threats. A bill like this one may well be unconstitutional, and would certainly chill the exercise of the right to free assembly by saddling protest organizers with massive potential legal liabilities.
There is an ugly history of attempts to use the federal RICO statute against protestors in order to make them go away. One famous case lasted nearly three decades and made three separate trips to the Supreme Court — a civil RICO lawsuit that abortionists brought against a pro-life protest group in 1986. In fact, the decisive Supreme Court ruling in the protestors’ favor came down 11 years ago today, even though the case did not fully finish until 2014.
The National Organization for Women had sued Joseph Scheidler, whose Pro-life Action Network had been protesting at a number of clinics nationwide, costing them a substantial amount of business and, the abortionists argued, a piece of intangible property — their ability to do business freely. They sued based on 117 non-violent acts of protest that hindered their business, and four threats of violence that had been made in the course of 12 years of otherwise peaceful protests.
The protestors’ attorney even admitted in oral arguments that they had committed misdemeanor crimes in the course of their protest activities (trespassing, for example). But that doesn’t justify a RICO case. And in two separate decisions in 2003 and 2006, the justices declined to allow this law that had been created to combat organized crime and corruption, to be used as a means of suppressing even threatening or angry forms of protest. In the latter ruling, a unanimous court found even that “violent conduct unrelated to extortion or robbery” does not constitute a crime that would justify a federal RICO case.
(It wasn’t until 2014 that the Seventh Circuit Court of Appeals finally forced NOW to pay about $60,000 the of pro-life defendants’ legal fees and court costs.)
A law like this Arizona bill would obviously be different from the federal language that led to that opinion, but it wouldn’t be better. It would needlessly raise concerns the Supreme Court never addressed about the freedom of assembly. It could even create incentives for malefactors (the Black Block anarchists, for example) to show up and riot in masks whenever someone they don’t like is holding a lawful public event.
In any event, the right way to prosecute riots is to arrest and prosecute the people who actually rioted, under laws against rioting. Go ahead, enhance the penalties, even. But don’t charge the people who happened to gather a group of protestors for a lawful activity.
