MADISON, Wis. (CN) — The Wisconsin Supreme Court on Thursday threw out an injunction against an anti-abortion protester who repeatedly made what a family planning clinic employee perceived as threatening statements.
The high court revisited the case in light of a recent U.S. Supreme Court decision that altered the First Amendment landscape for protected speech, which critics have said makes it harder to prosecute stalkers.
In 2020, nurse practitioner Nancy Kindschy claimed Brian Aish threatened and harassed her while he protested at the family planning clinic where she worked, such that she feared for her safety. Aish regularly protested at two clinics where Kindschy worked between 2014 and 2019, but in 2019 he began directing his comments at her, according to Thursday’s decision.
Aish, whose protests mostly consisted of proselytizing his Christian beliefs and urging clinic employees to repent, denied any intent to harm or intimidate Kindschy, who co-workers noticed was often afraid to leave work because of Aish’s attention on her.
Statements Kindschy cited in her injunction petition included Aish saying that “it won’t be long before bad things happen to you and your family” and repeatedly telling her that she would be lucky to make it home from work safely.
A Trempealeau County Circuit Court judge granted Kindschy an injunction, which barred Aish from harassing her and required him to stay away from her home or any premises she occupied, including Blair Clinic, for four years. Aish appealed on First Amendment grounds, but an appellate panel upheld the injunction.
After an initial round of arguments at the state supreme court in 2022, the case was stayed pending the U.S. Supreme Court’s decision in Counterman v. Colorado, which dropped in June 2023.
In Counterman, the nation's highest court sided with a man who stalked and threatened a singer-songwriter for years. The ruling changed the standard of recklessness and intent to truly harm or threaten, including in civil harassment cases like Kindschy's.
Counterman took center stage at oral arguments at the Wisconsin high court this past March, and in the justices’ decision issued Thursday.
Writing for the majority, Justice Rebecca Dallet sidestepped a decision on whether Aish’s statements were “true threats” according to the relevant case law. Nevertheless, citing language from Counterman, Dallet said “the harassment injunction still violates the First Amendment because the circuit court did not make the necessary finding that Aish ‘consciously disregarded a substantial risk that his communications would be viewed as threatening violence.’”
Dallet felt the injunction also could not clear the “high bar” set by the strict-scrutiny standard of review, as the injunction was not narrowly tailored to serve a compelling state interest by effectively banning Aish from speaking not just to Kindschy, but also other people at the clinic or anywhere else she may 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,” Dallet said.
Fellow liberal Justices Ann Walsh Bradley, Janet Protasiewicz and Jill Karofsky, joined Dallet's opinion, as did conservative Justice Brian Hagedorn.
In a separate concurring opinion, Justice Rebecca Grassl Bradley addressed the true-threat question the majority avoided, writing it would be unreasonable to find Aish’s statements rose to that level.
“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,” Bradley said, pointing to a host of legal precedent including Counterman.
“On their face, Aish’s statements cannot be interpreted as true threats. Aish uttered words of caution or warnings, not threats of violence,” Bradley said, noting that Aish at times claimed a hope that violence would not befall Kindschy and that her repentance and conversion to Christianity was his main objective.
Bradley conceded that, depending on the context, a seemingly benign warning could actually be an implied threat of violence, but she concluded Aish’s comments were not of this type in the big picture, even considering the history of violence against abortion providers.
“Free speech rights bear a cost. They force us to endure distressing and loathsome speech,” Bradley said, adding that “because a reasonable factfinder could not construe Aish’s statements as true threats, the First Amendment protects them.”
Chief Justice Annette Ziegler joined Bradley's concurrence. Both justices are conservatives.
An attorney from the Madison-based Pines Bach firm who represented Kindschy, and an attorney from the Chicago-based Thomas More Society who represented Aish, could not be immediately reached for comment on Thursday.
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