In the vast majority of criminal cases, the defense faces a serious institutional disadvantage. The government has virtually unlimited resources, immense experience in playing to an attentive (and often subservient) media, the ability to intimidate witnesses into testifying, and a habit of plea-bargaining its way to victory. It also can grant immunity to witnesses, a gift that assures the prosecution of evidence when it needs it. The defendant, in contrast, ordinarily has no such weapon by which to enforce his subpoena to a witness who “takes the Fifth.” A recent federal court case in Philadelphia, about which I write in my Forbes.com blog Injustice Department, holds the potential for a partial un-stacking of the deck.

In the wake of the ongoing NewsCorp scandal, some members of the media have been urging U.S. Justice Department intervention, investigation, prosecution, and dismembering of Rupert Murdoch’s media empire. Last month, we wrote about Eliot Spitzer’s call for an indictment of NewsCorp under the Foreign Corrupt Practices Act. Today, we comment on Michael Wolff’s desire to see NewsCorp face an indictment under the RICO (Racketeering Influenced and Corrupt Organizations) Act, a piece of legislation originally created with the express purpose of bringing down organized crime families.

In the article, my research assistant Daniel Schwartz and I argue that RICO has become a Frankenstein’s monster, and so it might plausibly be used to attack NewsCorp. We also point out that such an attack would have serious implications for freedom of speech and the feds’ ability to stretch vague laws to accomplish the government’s bidding. No matter Rupert Murdoch’s personality, politics, or corporate ethos, one should remember an important fact:  Murdoch’s company is in the business of producing speech, and a Justice Department RICO indictment would presage a disturbing threat to the entire Fourth Estate.