Month: January 1994

NOW’s Abortion Lawsuit Threatens Freedom of Expression

The fundamental problem with American
politics is that it is largely unprincipled. Groups and lobbies often
seem more interested in getting their own outcome — regardless of the
methods they need to use.

This simple maxim was underscored
with last week’s unanimous Supreme Court ruling that Planned Parenthood
could sue Operation Rescue and other pro-life groups under the Racketeer-Influenced
and Corrupt Organization laws. Planned Parenthood’s “victory”
is nothing less than a stunning blow to the very freedom and choices that
the organization pretends to cherish so deeply.

RICO was passed in 1970 in an effort
to give prosecutors a bigger weapon against organized crime. Congress
wanted to make it easier to go after legitimate businesses that had been
infiltrated and controlled by organized crime outfits.

RICO never did make much of an
impact on organized crime, but prosecutors and other groups were more
than willing to use its provisions for political purposes. The Reagan
administration, for example, encouraged the use of the RICO statutes to
crack down on pornography.

In 1988, The Nation reported
the story of Dennis and Barbara Pryba who owned three adult bookstores.
In 1987 they were charged and found guilty of selling six obscene magazines
and four obscene videotapes. Under RICO, which only requires two criminal
acts to apply, this made the couple an organized crime racket and the
government seized over $1 million in property from the couple.

Reagan’s Attorney General Ed
Meese set up a special anti-obscenity task force whose sole purpose was
to use the RICO laws to drive adult bookstores out of business.

What Meese and Reagan never understood
was that restricting speech can cut both ways.

When a machinists’ union claimed
that Texas Air was violating airline safety rulings, Texas Air promptly
sued the union claming that such criticism constituted “a pattern
of racketeering activity.”

When John Spear, editor of a small
weekly newspaper in New York criticized the way police in West Hartford,
Conn., handled abortion protesters, West Hartford sued him under the RICO
statute, claiming his editorials were an attempt to intimidate West Hartford
police. They argued that Spear’s damaging criticisms constituted
an extortion attempt.

And now the Supreme Court has ruled
that RICO may be used against antiabortion groups.

The National Organization for Women
argued that Operation Rescue had engaged in a conspiracy of racketeering
to run abortion clinics out of business. Operation Rescue concedes it
want to see abortion clinics out of business, but argued that since its
motivation was political and not economic, RICO could not be used against
the organization. The Supreme Court ruled that the motivation of the group
is immaterial to whether or not RICO may be applied.

NOW’s case against Operation
Rescue will now go to trial. If it can convince a jury that blocking entrances
to abortion clinics constitutes a form of extortion, or if it can tie
a couple members of Operation Rescue to other criminal acts, such as bomb
threats, it can probably put Operation Rescue out of business.

This is a horrible application
of RICO and one that will be felt in other areas besides the conflict
over abortion.

“Under this decision, Martin
Luther King Jr. would have been a racketeer,” Randall Terry, founder
of Operation Rescue, told The New York Times. “What I’d
say to the AIDS activists, the anti-nuclear groups, the animal rights
people, is get your affairs in order and line up, because you’re
next.”

If abortion clinics can use the
RICO statutes against abortion protesters, what’s to stop corporations
from using it against animal rights protesters?

“Animal rights activists sometimes
use peaceful, non-violent protests … and we’re concerned that this
kind of decisions is going to chill that First Amendment activity,”
Todd Davis, a lawyer for People for the Treatment of Animals, told USA
Today.

In fact NOW might eventually find
itself on the other side of the RICO law.

Given the shaky grounds that Roe
v. Wade was construed on, and the clear desire by some Supreme Court justices
to overturn the decision, it’s not inconceivable that the Supreme
Court might turn the issue of abortion back to the states. Operation Rescue
then might find use for this law in going after pro-abortion groups and
protesters.

By attacking Operation Rescue with
RICO, NOW has demonstrated that achieving its short-term political aims
is more important than preserving the First Amendment protection guaranteed
to all Americans.

Someday, NOW might regret that
decision.

Rape By Book Review

When Carlin Romano, literary critic
for The Philadelphia Inquirer agreed to review University of
Michigan law professor Catharine MacKinnon’s latest book, Only Words,
for The Nation magazine, he probably knew his slamming of her
views would create some controversy. But he probably didn’t expect to
be accused of raping MacKinnon.

That’s right, Romano has the distinction
of being the first person in history to be accused of rape via book review
— but his accusers are dead serious.

To understand how MacKinnon and
her supporters arrive at this conclusion, you need to know a bit about
MacKinnon and her assault on free speech.

MacKinnon is currently on the cutting
edge of an assault on so-called “pornographic” works. What makes
MacKinnon different than previous anti-porn crusaders is that she advances
and defends the proposition that imagining some acts is equivalent to
actually going out and doing them.

In Only Words, she notes
the countless areas in our legal system in which individuals who utter
certain words or express certain ideas are treated as if they had actually
committed an act.

MacKinnon writes, “Saying
‘kill’ to a trained attack dog is only words. Yet it is not seen as expressing
the viewpoint ‘I want you dead’ — which it usually does, in fact, express.
It is seen as performing an act tantamount to someone’s destruction, like
saying ‘read, aim, fire’ to a firing squad.”

For MacKinnon, pornography is then
analogous to saying “kill” to a trained attack dog. Pornography
doesn’t just express an idea, it commits an act that is harmful to women.
As Romano pointed out in his review, to MacKinnon pornography says “rape”
and thus does not warrant constitutional protections.

From his review of Only Words
it’s readily apparent that Romano disagrees rather vehemently with MacKinnon’s
thesis, and he opens his review with an analogy that attempts to illustrate
the difference between imagining an act and committing an act. It’s this
analogy that has gotten him into trouble.

Romano writes, “Suppose I
decide to rape Catharine MacKinnon before reviewing her book … I plot
and strategize, but at the last moment, I chicken out.”

But then, he adds, imagine other
book reviewer, who he calls Dworkin Hentoff — who comes up with the same
idea and does act on it, raping MacKinnon.

The police are called and both
Hentoff and Romano are arrested. But, Romano pleads, he hasn’t actually
raped anyone — he’s only imagined it. Under MacKinnon’s view of speech,
however, he has raped her and is culpable legally as Hentoff.

Romano thought this was a clever
way to point out some of the difficulties inherent in MacKinnon’s views.

MacKinnon and her supporters think
the review itself constitutes rape.

“He [Romano] had me where
he wanted me,” MacKinnon told Time magazine. “He wants
me as a violated woman with her legs spread. He needed me there before
he could address my work.”

And don’t think this is just empty
rhetoric. MacKinnon told the Washington Post that “Carlin
Romano should be held accountable for what he did. There are a lot of
people out there, and a lot of ways that an be done.”

Romano for his part, isn’t backing
down. “She’s claiming a book review equals rape. That’s quite a stretch.”

Thankfully in the United States
the First Amendment will prevent MacKinnon from pursuing rape charges
against Romano; but if this had occurred in Canada it might be a different
story.

Along with feminist thinker Andrea
Dworkin, MacKinnon has had a substantial part of her ideas accepted by
the Supreme Court of Canada. That court has banned pornography and Holocaust
revisionism on precisely the grounds that MacKinnon has laid out for harmful
speech.

In Only Words MacKinnon
describes the Supreme Court of Canada’s 1992 ruling against pornography
this way: “The evidence on the harm of pornography was sufficient
for a law against it … Harm in this context was defined as ‘predispos(ing)
persons to act in an anti-social manner.”

In the final paragraph of his review,
Romano provides probably the best evaluation of MacKinnon’s efforts to
date.

“The first settlers in America
came here to get away from people like Catharine MacKinnon. Thousands
of immigrants still come here to flee people like Catharine MacKinnon.
She is an authoritarian in the guise of a progressive … and God help
the First Amendment if her ideas ever win the day.”

Legalize Drugs

“Prohibition…goes beyond the bounds of reason in that it attempts
to control a man’s appetite by legislation and makes a crime out of things
that are not crimes…A prohibition law strikes a blow at the very principles
upon which our government was founded.”
       -Abraham Lincoln

       Legalize drugs.

       Two words strong enough to send
most conservatives into hallucinations of the crumbling of Western civilization
as we know it. The pin-striped prohibitionists dedicate their days to
telling you and I what we can and cannot put into our bodies.

       This particular group of conservatives
is trapped by their own ideological inconsistencies. Mention gun control
and they go off about the danger of government encroachment into private
lives. Argue in favor of protecting wetlands, and you receive a lecture
on the glories of the marketplace. But drugs? All of a sudden the answer
is more government, more government, more government. The war on drugs
is nothing but a welfare program for police and government bureaucrats.

       At the heart of the arguments
against drug legalization lies a paralyzing paternalism. Drugs are allegedly
bad for people, so the government will just take them away from the little
children citizens and put them on a shelf where they can’t reach them.
And if they do manage to get them, send ’em to their room for life.

       Drugs are dangerous. So what!!!

       A lot of things in life are
dangerous; the most intimate decisions individuals make are about acceptable
risks. Two of the most dangerous drugs known to humankind, tobacco and
alcohol, are permitted to compete in the marketplace even though the number
of documented deaths from the two puts crack and heroin into the minor
leagues.

       Society also permits individuals
to participate in a wide range of rather risky behaviors. People are allowed
to drive, own guns, eat high cholesterol foods, and listen to Michael
Bolton albums. In fact there is an inherent risk in just about every human
activity.

       One major distinguishing feature
of a democracy is that individuals are allowed to decide for themselves
the amount of risk they are willing to accept. I consider hang gliding
a very high risk sport, for example, but realize that other people consider
it low-risk or are willing to put up with the high risk because of the
potential outcomes (when it comes down to it, we bet our lives against
positive outcomes all of the time).

       The point is it’s your life
and your decision. If you are willing to accept the risks and consequences
of snorting cocaine, go for it.

       It is not the government’s
role to act as surrogate parents protecting rational adults from the risks
of living.

       A few caveats to the above
scenario are necessary.

       First, the right of an individual
to determine acceptable risks ends at the point where another individual’s
rights begin. Snorting cocaine and then driving, for example, would not
be a morally defensible action. Unfortunately in the anti-drug hysteria
an attempt has been made to expand what it means to infringe upon the
rights of other individuals.

       Harm here must be construed
narrowly. If someone gets high and then assaults another person, that
is a direct, tangible harm. If someone starts to ignore or even leaves
a spouse because of drug abuse, however, that is not a direct harm. An
intrinsic part of our social relations is that they are contingent and
subject to a variety of risks. The same individual might ignore his or
her spouse, for example, by becoming a compulsive overworker. Yet we don’t
have any laws which prevent someone from spending too many hours at the
office.

       And though this is a decidedly
non-consequentialist analysis of drug use, it is most certainly not evident
that drug use and/or crime would increase with legalization. As Doug Bandow,
senior fellow at the Cato Institute, notes, drugs were legal in the United
States until 1914. At that time the United States had fewer drug users
per capita than it does now, and the crime rate was significantly lower.

       As Bandow wrote in the New
York Times, “The Government should focus its enforcement efforts
on protecting minors, while restricting only adult drug use that directly
endangers others. We should rely on education and social pressure to discourage
drug use. Indeed, they are bringing down alcohol and tobacco use without
a war, and it is education and social pressure that have done the most
to reduce illicit drug use.”

       This column original appeared
in the Western Herald.