Wisconsin Supreme Court tosses injunction against pro-life protester

Late last month, the Wisconsin Supreme Court unanimously struck a blow for free speech, concluding that a court order prohibiting an anti-abortion protester from being near a Planned Parenthood worker violated his First Amendment rights.

The court ruled 7-0 to dismiss an injunction against Brian Aish. The injunction, issued in 2020 in Trempealeau County, forbid Aish from coming close to nurse practitioner Nancy Kindschy, who worked at a Planned Parenthood clinic in Blair.

In seeking the injunction, Kindschy said Aish threatened her by saying bad things would happen to her or her family if she didn’t quit her job. Aish said comments, made from a public sidewalk, were protected free speech under the First Amendment. 

The high court agreed with Aish. In the decision, written by liberal justice Rebecca Dallet, the justices said the injunction was a content-based restriction on Aish’s speech and could only stand if his statements were “true threats” and “he consciously disregarded a substantial risk that his statements would be viewed as threatening violence,” or the injunction was narrowly tailored to achieve a compelling state interest.

The injunction did not satisfy either threshold, the court concluded.

According to the decision, between 2014 and 2019, Aish regularly protested at two clinics where Nancy Kindschy worked as a nurse practitioner, mostly by holding up signs quoting Bible verses and preaching his Christian and anti-abortion beliefs broadly to all staff and visitors. 

“Beginning in 2019, however, Aish began directing his comments toward Kindschy, singling her out with what she believed to be threatening messages,” Dallet wrote.

Kindschy petitioned for a harassment injunction. During the hearing for the injunction to see if there were reasonable grounds “to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner,” a number of statements made by Aish to Kindschy laid the foundation for the injunction.

In one statement, Aish told Kindschy that she had time to repent, that “it won’t be long before bad things will happen to you and your family,” and that “you could get killed by a drunk driver tonight.”

“On February 18, 2020, Aish said to Kindschy, ‘I pray you guys make it home safely for another day or two until you turn to Christ and repent. You still have time,’” the decision stated.

On February 25, 2020, Dallet wrote, the court found that Aish again indicated that Kindschy would be lucky if she made it home safely.

The lower court found that both Aish and Kindschy offered credible testimony, Dallet observed.

“As the circuit court explained, Aish was ‘trying to share the gospel, and also has a stance of being against the things that Planned Parenthood does, which includes abortions’. . . .,” she wrote. “According to the circuit court, Aish’s purpose in speaking to Kindschy was ‘to get [her] to leave her employment or stop what she was doing,’ but also, ‘a dual purpose here was to get Ms. Kindschy to adopt . . . Mr. Aish’s religious beliefs . . . .’” 

The circuit court said that persuading another person to adopt different religious beliefs was “a legitimate purpose from Aish’s perspective, from his standpoint,” and noted that Aish’s statements were made in the context of “convey[ing] a message of repentance” and were “even coming from a place of love or nonaggression,” Dallet explained.

However, that didn’t stop the circuit court from issuing an injunction, Dallet observed.

“Nonetheless, the circuit court found that Aish’s statements were intimidating because they were the ‘types of things [that] certainly would intimidate somebody because . . . they are statements that address somebody’s loss of life or their family members being hurt or harmed . . . .’” she wrote. “The circuit court further concluded that Aish’s statements did not serve a legitimate purpose because ‘to use intimidation or scare tactics’ to persuade someone to leave their employment or adopt different religious beliefs is ‘not a legitimate purpose.’”

The circuit court issued a four-year injunction which prohibited Aish from speaking to Kindschy, or going to her residence “or any other premises temporarily occupied by [Kindschy],” Dallet wrote.

Aish appealed, and, while the justices considered the case, Dallet wrote, the U.S. Supreme Court held in another case that in a criminal prosecution for harassment premised on true threats, the First Amendment requires the government to prove, at a minimum, that the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

The reasoning

While the First Amendment’s protection of the fundamental right of free speech is not absolute, Dallet wrote for the majority, a content-based restriction on speech can only pass constitutional muster if the regulation restricts speech that falls into one of several historically unprotected categories, such as “fighting words,” incitement to imminent lawless action, obscenity, defamation, or “true threats,” or if it necessary to serve a compelling state interest and is narrowly tailored to that interest, otherwise known as satisfying a test of strict scrutiny.

The injunction represented a content-based restriction, the opinion observed.

“Kindschy primarily argues that the injunction is nonetheless constitutional because Aish’s statements were true threats and were thus unprotected by the First Amendment,” Dallet wrote. “Kindschy’s secondary argument is that even if Aish’s statements were not true threats, the injunction is constitutional because it survives strict scrutiny.”

The court never got to that second argument, Dallet wrote, because the first part failed, that is, the lower courts failed to establish that Aish “consciously disregarded a substantial risk that his communications would be viewed as threatening violence” — the threshold for finding a “true threat.”

In the decision, Dallet pointed to the aforementioned U.S. Supreme Court decision that found that before a person may be criminally convicted for making a true threat, the First Amendment requires proof of the speaker’s subjective intent.

“Specifically, the Court determined that in order to avoid chilling protected, non-threatening expression, proof that the speaker acted at least recklessly is required,” she wrote. “Recklessness in this context means that the speaker ‘consciously disregarded a substantial risk that his communications would be viewed as threatening violence.’”

Because that was a criminal case and Kindschy sought a civil injunction, Dallet pointed out, Kindschy claimed that the requirement that the government prove a defendant’s subjective mental state did not apply. 

“First, she contends that [the federal decision] did not explicitly extend its holding beyond the criminal prosecution at issue in that case,” she wrote. “Second, Kindschy asserts that unlike the Colorado statute at issue in [the federal case], the intent-to-harass requirement in [state statute] always satisfies [the federal decision’s] recklessness standard.”

The court found neither of those arguments persuasive.

“To begin with, nothing on the face of the Court’s decision limits its holding to the criminal context,” Dallet wrote. “On the contrary, two aspects of the decision indicate that it also applies to a civil harassment injunction premised on true threats.”

First, Dallet asserted, the court relied upon the law of defamation and incitement, which includes both civil and criminal liability, and the court further emphasized that the recklessness rule it was adopting “fits with the analysis in [the court’s] defamation decisions,” which also “adopted a recklessness rule” applicable in both civil and criminal contexts.

Second, Dallet wrote, the court explained that the more stringent intent standard required in civil and criminal incitement cases “compel[led] the use of a [recklessness] standard” in true threats cases. 

“By relying on these civil claims, the Supreme Court implied that the same standard for criminal prosecutions also applies to civil harassment injunctions based on true threats,” she wrote.

Second, Dallet continued, that court’s broader reasoning was as applicable to civil harassment injunctions based on true threats as it was to criminal prosecutions. 

“The court’s animating concern … was that applying an objective standard to true-threat claims might chill otherwise protected speech,” she wrote. “As the court said, ‘A speaker may be unsure about the side of a line on which his speech falls. Or he may worry that the legal system will err, and count speech that is permissible as instead not. Or he may simply be concerned about the expense of becoming entangled in the legal system.’”

Those concerns are just as salient in the context of a civil harassment injunction as they are in the criminal context, Dallet wrote. 

“Although the stakes may be higher in a criminal prosecution, the threat of a civil harassment injunction may be no less chilling of protected speech,” she wrote.

Not intending to be reckless

The court dismissed Kindschy’s contention that a finding under state law that someone “engaged in harassment with intent to harass or intimidate the petitioner” would always satisfy the federal court’s recklessness standard because, the court intoned, intent is a higher bar than recklessness.

Indeed, a finding of intent to harass is different from a finding that the speaker intentionally or recklessly uttered a true threat under the First Amendment, Dallet asserted.

“We have previously interpreted what it means to ‘harass’ or ‘intimidate’ under [state statute], and neither is synonymous with a true threat,” she wrote. “To harass under the statute is to ‘worry and impede by repeated attacks, to vex, trouble or annoy continually or chronically, to plague, bedevil or badger,’ … In contrast, a true threat under the First Amendment is an expression ‘conveying that a speaker means to ‘commit an act of unlawful violence.’”

“In other words, a court can find one intended to harass or intimidate another without necessarily finding someone uttered a true threat at all, let alone uttered one intentionally or recklessly,” she wrote.

In short, Dallet wrote, the court found that [the federal decision] applies to civil harassment injunctions premised on true threats and so a circuit court had to find that the respondent “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

In this case, Dallet explained, the circuit court’s harassment injunction was issued before the federal decision came down and so the circuit court therefore did not evaluate whether Aish’s statements were true threats, or whether he “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

“Because the circuit court failed to make clear findings regarding Aish’s subjective mental state as it relates to his statements to Kindschy, we need not decide whether Aish’s statements were true threats,” she wrote. “Whether they were true threats or not, the injunction cannot be justified on true-threats grounds.”

As for strict scrutiny, Dallet wrote that Kindschy claimed several compelling state interests, including protecting her right to privacy, her right to free passage in going to and from work, and her right to be free from the fear of death or bodily harm.

“Strict scrutiny is a high bar, and the injunction at issue here cannot clear it,” Dallet concluded. “Even if the interests Kindschy identified are compelling, an injunction still must be narrowly tailored to protect those interests. Here, the injunction orders Aish to avoid any location Kindschy might be, effectively prohibiting Aish from speaking not just to Kindschy, but to others at the clinic or anywhere else that she might be. In doing so, the injunction burdens

significantly more speech than is necessary to protect individual privacy, freedom of movement to and from work, and freedom from fear of death.”

Bradley’s concurrence

Conservative justice Rebecca Bradley wrote a concurring opinion, going much further than the unanimous decision.

Bradley pointed out that the majority opinion did not decide whether Aish’s statements were “true threats” but instead held that the injunction violated the First Amendment because the circuit court did not make the required finding under the federal standard — it could not have because the case had not been decided — and because it failed the strict scrutiny test.

Bradley said she agreed but she also said the injunction against Aish violated the First Amendment for a more fundamental reason.

“The circuit court never deemed Aish’s statements true threats, and no reasonable fact-finder could have made such a finding based on the record before the circuit court,” Bradley wrote.

Among others, Bradley recounted an incident between Kindschy and Aish in which Aish stood on the sidewalk a few feet from her vehicle and said, “M’am, you have time to repent. If I recall, you are Lutheran.”

“He told her she has blood on her hands, called her a liar, and asked, ‘Do you know who plays the game of lies, ma’am?” Bradley recounted, also noting that Aish told her Satan would come to judge her. “He also said she would be ‘lucky if [she] got home safely and that [she] could possibly be killed and that bad things are going to start happening to [her] family.’”

According to Kindschy, Bradley wrote, she felt threatened by the words, adding that Aish made the comments to her directly, and, according to Kindschy, he was ‘very loud, very stern, and he was very agitated.”

Kindschy recorded the interaction, but Bradley said the recording did not depict what Kindschy had described.

“The recording shows Aish was not loud, stern, or agitated,” she wrote. “He stood on the sidewalk, several feet away from Kindschy. He held a sign that said, ‘Those who love me, obey me! Jesus.’ … As Kindschy entered the front driver’s side of her vehicle, Aish can be heard saying, ‘I’ll pray you guys make it home safely for another day or two so you turn to Christ and repent. You still have time.’”

Kindschy testified the recording reflected how Aish behaved during all relevant interactions, Bradley wrote.

“Aish expressed that his protests came from a place of ‘love,’” Bradley wrote. “‘We’re there because we’re trying to warn them and trying to get them to repent.’”

Aish stated he had no intention of harming Kindschy. Telling Kindschy she could be killed by a drunk driver was, according to Aish, part of his religious message, Bradley wrote, adding that the circuit court found that Aish was not angry or aggressive while making these statements but was merely “passionate about his beliefs.” 

Nevertheless, the circuit court said such comments would be intimidating “even in the context that is presented here of trying to convey a message of repentance,” Bradley observed.

“Not all statements that stoke fear in listeners are true threats,” Bradley wrote. “Threats must be ‘real’ for the government to proscribe them. True threats — as distinguished from protected expressions — ‘convey a real possibility that violence will follow.’ To constitute a true threat, the communication must express, explicitly or implicitly, that the speaker or a co-conspirator intends to inflict imminent or future injury on the victim.”

Speech cannot be punished or restricted on the ground that a listener fears a generalized harm because of what the speaker has suggested, Bradley wrote.

“Violence must be threatened, not ‘merely predicted,’ hoped for, or endorsed,” she wrote. “The standard for assessing a communication is an objective one; a statement is a true threat only if a reasonable listener, who is familiar with the full context, would understand the statement as conveying [that] the speaker or a co-conspirator intends to inflict unlawful violence on a person or group of people.”

Threats of violence undermine one of the central values animating the First Amendment: that of deliberative democratic, decision making, Bradley wrote: “Self-government requires a robust, uninhibited exchange of viewpoints.”

At the same time, Bradley added, “First Amendment vigilance is especially important when speech is disturbing, frightening, or painful, because the undesirability of such speech will place a heavy thumb in favor of silencing it, whether the First Amendment protects such speech or not.”

“Political speech is often caustic, heated, and outrageous, tempting would-be censors to recast political speech as threats of violence,” she wrote. “The First Amendment is a bulwark against the weaponization of the justice system to squelch or even criminalize disfavored political voices. Courts are duty bound to protect the free exchange of thought on which our republic depends.”

Aish’s statements could not be true threats of violence because he disclaimed any desire for violence to befall Kindschy, Bradley recounted. 

“For example, Aish said he would ‘pray’ Kindschy made it home safely so that she could ‘turn to Christ and repent,’” Bradley wrote. “Aish thereby expressed he did not want Kindschy to get hurt.”

Instead, Bradley continued, Aish said he hoped she would adopt his religious views and leave her job at Planned Parenthood. 

“In other statements, Aish again implored Kindschy to ‘repent’ and only then suggested a car accident could occur,” she wrote. “If the harm Aish predicted happened to Kindschy, she could not repent; Kindschy’s repentance, not harm to her, was Aish’s stated objective. None of’ statements conveyed an intent to enact violence on Kindschy.”

Nothing in the record suggests a listener would believe Aish had a propensity for violence, Bradley also wrote. 

“Nothing in the record suggests Aish threatened to harm Kindschy or anyone else in the past,” she wrote. “Nor does the record indicate Aish committed any violent acts against anyone — ever. Kindschy testified Aish never touched her or her vehicle at any point; he remained on the sidewalk, several feet away from her, during each of the three encounters. The record is bereft of any evidence Aish took steps to carry out a plan to harm others.”

The government may not silence speech simply because it offends or frightens others, Bradley asserted. 

“The circuit court entered an injunction against Aish because it believed Kindschy should not ‘have to even think about that she might get killed on her way home or bad things are going to happen to her and her family,’” she wrote. “The First Amendment, however, protects speech that makes people think about the possibility of their deaths.”

Some might regard Aish’s speech as frightening, offensive, and hurtful, Bradley continued. 

“But silencing speech because it offends ‘strikes at the heart of the First Amendment,’” she wrote.

Account to court documents, Kindschy is retired and the clinic has closed.