Why RICO can’t be used to punish speech

The Racketeer Influenced and Corrupt Organizations Act — better known as RICO — was passed in 1970 to help prosecutors take down the mafia. Since then, it’s been used against terrorist organizations, drug cartels, fraud schemes, and other organized crime. 

Now new targets are in sight.

Last week, protesters confronted President Trump at a D.C. restaurant. On Monday, Trump said he asked Attorney General Pam Bondi to look into bringing RICO charges against one of the protesters because she was a “paid agitator.” Then Tuesday night on CNN, Deputy Attorney General Todd Blanche told Kaitlan Collins that RICO investigations could occur. 

“So is it, again, sheer happenstance that individuals show up at a restaurant where the president is trying to enjoy dinner in Washington, DC, and accost him with vile words and vile anger?” Blanche said. “And meanwhile, he’s simply trying to have dinner. Does it mean it’s just completely random that they showed up? Maybe. But to the extent that it’s part of an organized effort to inflict harm and terror and damage to the United States, there’s potential, potential investigations there.”

That’s extraordinary and deeply chilling. The deputy attorney general of the United States believes yelling at an elected official, the most powerful man in the world, inflicted “harm and terror” on him as well as the United States government and could be prosecuted as a crime.  Thankfully, the First Amendment does not permit the government to punish individuals for protected speech, even if it is styled as a RICO claim. 

Here’s why.

What RICO does — and doesn’t do

The federal RICO statute allows prosecutors (and even private citizens through civil lawsuits) to criminally charge or sue people who engage in a “pattern of racketeering activity” as part of an ongoing enterprise. The law lists crimes like bribery, extortion, and money laundering as “racketeering acts.” There are also similar laws at the state level. It’s a serious tool, with serious consequences: long prison terms, massive fines, and asset forfeiture.

But here’s the key: speech is not a crime. RICO does not — and cannot — turn unpopular or provocative expression into racketeering. If there is no underlying crime, then there is no RICO case, and the First Amendment sets strict boundaries for when pure speech is a criminal act. 

Even if a protester independently commits a crime, such as trespass or destruction of property, that does not mean his or her organization can be sued under a RICO theory. The same is true even if more than one protestor commits a crime. Without more, the organization simply cannot be liable under RICO. Protestors should not commit crimes, and government officials should not manipulate RICO to chill clearly protected speech.    

The First Amendment guarantees that most forms of pure speech are not criminal

The Supreme Court has made clear that the government cannot punish speech just because it’s radical, unpopular, or even advocates for breaking the law in the abstract. In Brandenburg v. Ohio, the Court ruled in 1969 that only speech “directed to inciting or producing imminent lawless action” can be punished. 

Similarly, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Court found that the First Amendment protected civil rights organizers from being held liable for unlawful acts committed by some participants in a broader, lawful protest movement.

Justice Souter, concurring in National Organization for Women, Inc. v. Scheidler raised the possibility that RICO defendants could raise the First Amendment as a defense in particular cases, cautioning “courts applying RICO to bear in mind the First Amendment interests that could be at stake.”

These cases underscore the same principle: advocacy and association are protected, except in very limited circumstances, and RICO does not trump the First Amendment.

The improper use of RICO chills speech

Even the threat of RICO liability is enough to silence people. 

Imagine being an activist who wants to call for bold change, but fears that a prosecutor could try to label your group a “criminal enterprise” just for its rhetoric. The risk of crippling lawsuits or prison sentences would drive many people to keep quiet. 

FIRE is keenly aware of the chilling impact of RICO lawsuits. We’re currently defending historian James Gregory against a civil RICO claim brought by Pennsylvania politician Douglas Mastriano based on Gregory’s good-faith criticism of Mastriano’s academic research. Luckily, FIRE is working to vindicate Gregory’s First Amendment rights free of charge, but other targets of baseless RICO claims must expend thousands in legal fees to defend against such claims. 

That chilling effect is exactly what the First Amendment is designed to prevent. A healthy democracy requires room for dissent, even if it upsets the status quo. 

The bottom line

RICO was built to fight organized crime, not to criminalize protest. When officials try to wield it against activists or advocacy groups, they’re wrong on the law, and they undermine free expression for everyone.

The Constitution doesn’t protect violence, true threats, or genuine criminal conspiracies. But it does protect organizing, advocacy, and association. Any attempt to twist RICO into a weapon against speech isn’t just unconstitutional. It’s dangerous to the free and open debate that keeps democracy alive.