Cloer v. Gynecology Clinic, Inc.

Background

Michael Cloer is the senior pastor of Siloam Baptist Church and leader of Pastors for Life, a group that has protested outside Palmetto State Medical Center, a Greenville clinic run by Gynecology Clinic, Inc., since 1989. In 1994 the clinic sued Cloer, his group, and others in state court alleging private nuisance, public nuisance, and civil conspiracy. The trial court dismissed the public-nuisance claim, found for the defendants on private nuisance, but found for the clinic on civil conspiracy and issued a broad injunction with rules about trespass, access, a 12-foot buffer zone, obstructing traffic, approaching clinic physicians or their vehicles, and making noise audible inside the clinic. The South Carolina Supreme Court affirmed in a short per curiam opinion.

Reasoning

The Supreme Court declined to review the state court’s decision, so it did not decide the constitutional questions on the merits. Justice Scalia, joined by Justice Thomas, dissented from the denial and explained why he would have granted review. He argued the state court treated lawful persuasive activity as civil conspiracy when the aim was to discourage patronage, a theory that, in his view, threatens long-protected activities like picketing and civil-rights boycotts and creates an irrational and overbroad set of restrictions (for example, banning approaching physicians or any noise heard inside the clinic).

Real world impact

Because the Court refused review, the injunction and the state-court theory that peaceful persuasion can be a civil conspiracy remain in place in this case. That outcome continues limits on the specific protesters named and, according to the dissent, risks chilling lawful protests, boycotts, and persuasion across South Carolina. The denial is not a Supreme Court ruling on the constitutional question; the dissent would have asked the Court to decide whether the state doctrine unlawfully threatens First Amendment activity.

Dissents or concurrances

Justice Scalia’s dissent warns that the state approach could make routine, peaceful persuasion subject to liability and injunctions and says the injunction’s breadth is unconstitutional; Justice Thomas joined his opinion.