SUPREME COURT OF THE UNITED STATES
MICHAEL CLOER AND PASTORS FOR LIFE, INC. v.
GYNECOLOGY CLINIC, INC., DBA PALMETTO
STATE MEDICAL CENTER
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF SOUTH CAROLINA
No. 98-2006. Decided January 10, 2000
The petition for a writ of certiorari is denied.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting from the denial of certiorari.
Petitioner Michael Cloer is senior pastor of Siloam
Baptist Church in Easley, South Carolina, and the founder
and director of petitioner Pastors for Life, Inc., a group of
pastors dedicated to protesting against, and offering alter-
natives to, abortion. Since 1989, Pastor Cloer and Pastors
for Life have organized protests outside Palmetto State
Medical Center, a facility in Greenville, South Carolina,
operated by respondent Gynecology Clinic, Inc., that per-
forms abortions.
In 1994, respondent filed suit against Cloer, Pastors for
Life, and others, in South Carolina state court, alleging
private nuisance, public nuisance, and civil conspiracy
under state law. Respondent initially sought injunctive
relief and damages, but subsequently waived its claim for
damages. The trial court granted defendants' motion to
dismiss the public-nuisance cause of action; after a bench
trial, it rendered judgment for defendants on the private-
nuisance claim, and for respondent on the civil-conspiracy
claim. It entered an injunction barring the defendants
from (1) trespassing on the private property of the clinic;
(2) interfering with ingress to and egress from the clinic;
(3) interfering with the free flow of traffic on the property
of the clinic and adjoining public streets and sidewalks
and approaching any physician employed by the clinic or
any vehicle containing such a physician; (4) protesting
within a 12-foot buffer zone along the public sidewalk on
either side of the driveway of the clinic; (5) obstructing the
view of street traffic by any vehicle that is attempting to
exit the clinic; and (6) making any noise that would be
heard inside the clinic. App. to Pet. for Cert. 8a-9a. The
South Carolina Supreme Court affirmed the judgment in a
summary opinion. 334 S. C. 555, 514 S. E. 2d 592 (1999).
Although in my judgment the scope of the injunction is
unconstitutionally broad insofar as it prohibits approach-
ing any physician or any vehicle containing a physician,
and prohibits any noise that can be heard inside the clinic
during any of its business hours, see Madsen v. Women's
Health Center, Inc., 512 U. S. 753, 812 (1994) (SCALIA, J.,
concurring in judgment in part and dissenting in part),
there would be nothing about this case warranting our
attention if the judgment were based upon, and the scope
of the injunction determined by, unlawful acts committed
by petitioners. The First Amendment is not a license for
lawlessness, and when abortion protesters engage in such
acts as trespassing upon private property and deliberately
obstructing access to clinics, they are accountable to the
law. What makes the present case remarkable, however,
and establishes it as a terrifying deterrent to legitimate,
peaceful First Amendment activity throughout South
Carolina, is the fact that the South Carolina Supreme
Court's affirmance did not rest upon its determination
that there was adequate evidence of unlawful activity.
The analysis contained in its brief per curiam opinion
begins as follows:
"Appellants first assert that, because their actions are
protected by the First Amendment, they cannot be the
basis for a civil conspiracy. Under South Carolina
law, lawful acts may become actionable as a civil con-
spiracy when the object is to ruin or damage the busi-
ness of another. . . . The record is replete with evi-
dence that appellants' goal is to discourage women
from patronizing respondent's business with the goal
of making abortion unavailable. Assuming appel-
lants' acts were lawful, that fact does not prevent the
finding of a civil conspiracy." 334 S. C., at 556, 514
S. E. 2d, at 592 (internal quotation marks and cita-
tions omitted).
This extraordinary application of state civil-conspiracy
law to attempts to persuade persons not to patronize
certain businesses would outlaw many activities long
thought to be protected by the First Amendment-routine
picketing by striking unions, for example, and the civil-
rights boycotts directed against businesses with segre-
gated lunch counters in the 1960's. It may well be that an
attempt, by lawful persuasion, to harm someone's business
out of sheer malice, or in order to capture his clientele, can
be made illegal. But seeking to harm it (through persua-
sion) because of principled objection to the nature of the
business-whether because of moral disapproval of abor-
tion, or social disapproval of segregation, or economic
disapproval of substandard wages-is an entirely different
matter. If this sort of persuasive activity can be swept
away under state civil-conspiracy laws, some of our most
significant First Amendment jurisprudence becomes aca-
demic. Consider, for example, how the South Carolina
Supreme Court's theory makes a nullity of our statement
in a leading case involving the boycott of segregated busi-
nesses in Mississippi:
"A massive and prolonged effort to change the social,
political, and economic structure of a local environ-
ment cannot be characterized as a violent conspiracy
simply by reference to the ephemeral consequences of
relatively few violent acts. Such a characterization
must be supported by findings that adequately dis-
close the evidentiary basis for concluding that specific
parties agreed to use unlawful means, that carefully
identify the impact of such unlawful conduct, and that
recognize the importance of avoiding the imposition of
punishment for constitutionally protected activity."
NAACP v. Claiborne Hardware Co., 458 U. S. 886,
933-934 (1982).
I would also note that even on its own terms the result
produced by the South Carolina Supreme Court's opinion
is irrational: If seeking to harm an abortion clinic's busi-
ness through persuasion is indeed unlawful in South
Carolina, why does the injunction permit such harm so
long as it is inflicted at a distance of 12 feet from the
driveway? The cryptic last paragraph of the South Caro-
lina Supreme Court's opinion reads as follows: "Finally,
appellants raise numerous evidentiary challenges to the
findings of the trial judge which form the basis for the
injunctive relief granted respondent. We find no eviden-
tiary or constitutional error in the injunction issued here."
334 S. C., at 557, 514 S. E. 2d, at 593. Given what pre-
ceded (and avoiding the attribution of illogic to the South
Carolina Supreme Court), this can mean nothing more
than that the evidentiary findings supporting civil con-
spiracy, which would have justified a total ban of the anti-
abortion protests, adequately support the more limited
ban. But even if it means that the trial court's findings of
unlawful acts (such as trespass and obstruction of access)
justified the terms of the injunction; and even if it means
(quite illogically) that such unlawful acts will always be
necessary to fix the scope of injunctive relief; the court's
plain holding that "discourag[ing] women from patronizing
[abortion clinics] with the goal of making abortion un-
available" id., at 556, 514 S. E. 2d, at 592, is an unlawful
civil conspiracy subjects all such activity-no matter how
peaceful and law abiding-to civil damages.
I would grant certiorari in this case, to consider the
constitutionality of a novel civil-conspiracy doctrine that
places routine, lawful First Amendment activity under
threat of financial liability, and probably under threat of
injunction, throughout the State of South Carolina.
|
MAIN
