Mark Goldstone

YOU NO DOUBT have heard about the history-making criminal indictment of former President Donald Trump and several allies for their efforts to overturn the 2020 election in Georgia. The indictment used a state statute intended to address organized crime. In the case against Trump, the state is defending the democratic electoral process against an organized criminal conspiracy. But in another recent case, this same Georgia statute is being wielded in a manner that weakens democracy and could lead to a catastrophic loss of First Amendment rights.

The Racketeer Influenced and Corrupt Organizations (RICO) Act, while designed to dismantle organized crime groups, has too often been transformed into a government tool to suppress protest and thwart the principles of free speech and assembly, rights secured in the U.S. Constitution. Broadly speaking, RICO statutes (both federal and those adopted by most states) make three things illegal: First, for any person to acquire assets by engaging in a pattern of criminal activities (“racketeering”). Second, for any person employed by or associated with such an enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of those activities. Third, for any person to commit any “overt act” of planning, preparing, or attempting to commit the behaviors described in the previous two situations with one or more people.

The reason these laws are so effective in taking down organized crime enterprises, such as some prominent Mafia crime families, is the same reason it is dangerous to free speech: It criminalizes indirect participation in criminal acts, including taking any step that could be perceived as preparing to break a law (the slippery slope of “precrime”). Since its adoption in the 1970s, RICO has been used in attempts to criminalize support of political protest organizations including PETA, Greenpeace, and Black Lives Matter.