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Issue: "What is art?," March 20, 2004

During the Monica Lewinsky scandal, President Clinton struggled with the meaning of the word is. Now it seems a three-judge panel of the 7th Circuit Court of Appeals is struggling with the meanings of all and must.

The U.S. Supreme Court used those words emphatically last year when it handed down a ringing reversal of a federal racketeering judgment against pro-life activists in National Organization for Women (NOW) vs. Joseph Scheidler. The feminist group had charged that a series of abortion protests organized by Pro-Life Action League head Joseph Scheidler, activist Timothy Murphy, and other abortion protesters constituted racketeering and extortion under RICO, the Racketeering Influenced and Corrupt Organizations Act.

In 1998, a jury found the defendants guilty, and liable for an estimated $1.2 million in damages and legal fees. In addition, District Judge David Coar imposed a nationwide injunction that has since chilled peaceful protest outside abortion clinics.

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But in February 2003, the Supreme Court ordered that judgment reversed. In a decisive 8-1 ruling, the court held that "even when [pro-life activists'] acts of interference and disruption achieved their ultimate goal of 'shutting down' a clinic that performed abortions, such acts did not constitute extortion," wrote Chief Justice William Rehnquist. "Because all of the ... acts supporting the jury's finding of a RICO violation must be reversed, the judgment that [the defendants] violated RICO must be reversed. Without an underlying RICO violation, the injunction issued by the district court must necessarily be vacated."

The court sent the case back to the 7th Circuit to carry out the decision, but that didn't happen. Instead, last month, acquiescing to arguments mounted by NOW attorney Fay Clayton, a three-judge panel shunted the case back down to the district court to decide whether the injunction and other penalties might be appropriate after all.

"Nobody could quite comprehend how any lawyer could ask a lower court to overturn a decision of the U.S. Supreme Court," said Scheidler attorney Thomas Brejcha.

The 7th Circuit panel included Diane Wood, a professed admirer and former law clerk for Roe vs. Wade architect Supreme Justice Harry Blackmun. Fay Clayton had argued-and prevailed-before Judge Wood earlier in Scheidler's nearly 19-year history. At the core of Ms. Clayton's latest brief: Four alleged acts of violence.

NOW had charged that defendants were liable for 117 "extortionate" acts; the jury found that only four of the alleged acts involved violence. And though the high court's February 2003 reversal required that "all" of the acts the jury found "must be reversed," Ms. Clayton argued in the 7th Circuit that "all" didn't include the four allegedly violent acts. Those, she claimed, should be separately considered as a basis for keeping in force the district court's nationwide injunction.

Meanwhile, NOW's reliance on alleged acts of violence dredges up other problems in Scheidler: According to news footage, videotape by eyewitnesses, photographs, and court documents uncovered after the 1998 trial, some crucial "witnesses" to those acts appear to have lied.

Since the 1998 Scheidler jury was not required to reveal which acts it found were violent, defense attorneys may never get an opportunity to present evidence of false testimony. Where does that leave the case? First, the $1.2 million in damages and legal fees is still hanging over Mssrs. Scheidler and Murphy, and other defendants. Second, Scheidler attorneys on March 11 filed a petition for a rehearing of the case before all 11 judges on the 7th Circuit.

The full court could enforce the Supreme Court's ruling, reversing the RICO judgment, vacating the injunction and damages. (That would leave NOW to pay an estimated $1 million in legal fees.) Or it could affirm the panel's decision and send the case back to the district court.

"Once they open that Pandora's Box," said attorney Brejcha, "a lot of bad things could come out, including a new trial. If we go around a second time, things could get even worse."

Depending on what the meaning of the word worse is.

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