Cloer v. Gynecology Clinic, Inc.
The Supreme Court declined to hear the case of an anti-abortion pastor found liable for civil conspiracy in South Carolina, leaving the state court's ruling in place.
Justice Scalia, joined by Justice Thomas, wrote a dissent warning that South Carolina's reasoning could let courts punish peaceful boycotts and protests of all kinds simply because organizers hoped to hurt a business economically.
How it got here: A South Carolina trial court found civil conspiracy and issued an injunction; the state supreme court summarily affirmed; the protesters asked the U.S. Supreme Court to review, which it declined.
The Case in Depth
What happened
A South Carolina pastor and his anti-abortion group had protested for years outside a clinic that performs abortions. The clinic sued them in state court for private nuisance, public nuisance, and civil conspiracy, seeking an injunction rather than damages. A trial court ruled against the protesters on the conspiracy claim and issued a broad injunction restricting their activities near the clinic.
The question before the Court
Could South Carolina treat peaceful efforts to persuade women not to use an abortion clinic as an illegal civil conspiracy, even without any unlawful acts?
Why it matters
By turning down the case, the Court left standing a state-court ruling that peaceful persuasion aimed at hurting a clinic's business could count as an illegal conspiracy. Scalia's dissent argued this reasoning could expose union picketers, civil-rights boycotters, and other peaceful protesters nationwide to lawsuits and injunctions, though only South Carolina's ruling was directly affected.
What changes now
Because certiorari was denied, the Supreme Court will not review the case, and the South Carolina Supreme Court's ruling and the injunction against the protesters remain in effect. No further proceedings occur in this case at the Supreme Court, though the broader legal question about civil-conspiracy liability for peaceful persuasion remains unresolved nationally, as only two justices dissented from the denial.
What this does not decide
A denial of certiorari is not a ruling on the merits — the Supreme Court did not decide whether South Carolina's civil-conspiracy theory is constitutional. Only Justice Scalia's dissent, joined by Justice Thomas, addressed the substantive First Amendment concerns; the full Court's views on the issue remain unknown.
Concurrences and dissents
Dissent — Justice Scalia
“A massive and prolonged effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts.”Quoting a prior Supreme Court case to argue peaceful boycotts should not be treated as unlawful conspiracies.
Scalia argued the Court should have granted certiorari because South Carolina's civil-conspiracy theory punished peaceful, lawful persuasion aimed at discouraging patronage of an abortion clinic, not just unlawful acts like trespass. He warned this reasoning could criminalize labor picketing and civil-rights boycotts, and called the state court's logic internally inconsistent for allowing such 'unlawful' persuasion within 12 feet of the clinic. He also found the injunction's ban on approaching physicians and on any audible noise unconstitutionally broad.
How the Court got there
The legal reasoning, step by step
- Justice Scalia's dissent from denial of certiorari argued that the South Carolina Supreme Court upheld the injunction not based on findings of unlawful conduct like trespass, but on a theory that even lawful, peaceful persuasion could form a civil conspiracy if its goal was to damage the clinic's business.
- He explained that under ordinary First Amendment principles, peaceful advocacy aimed at persuading people not to patronize a business is protected, drawing an analogy to labor picketing and civil-rights boycotts of segregated businesses.
- He pointed to the Court's own precedent recognizing that a boycott motivated by principled objection to a business's practices cannot be treated as an unlawful conspiracy merely because it succeeds in causing economic harm.
- He argued that South Carolina's theory, if left uncorrected, would make major First Amendment protections for boycotts and picketing meaningless within the state, since any goal of persuading customers away from a disfavored business could be recast as an illegal conspiracy.
- He also noted the state court's reasoning was internally inconsistent, since it was unclear why a total ban on such 'unlawful' persuasion was not required if the underlying activity was truly conspiratorial, rather than merely a 12-foot buffer zone.
Doctrinal impact
Cases affected by this decision
Reaffirms NAACP v. Claiborne Hardware Co. (458 U. S. 886)
Scalia's dissent relies on this case to argue peaceful boycotts cannot be treated as unlawful conspiracies.