July 9, 2024 – A circuit court improperly entered an injunction against an anti-abortion protestor who repeatedly made intimidating statements to a nurse who worked at a clinic, the Wisconsin Supreme Court has ruled (7-0) in Kindschy v. Aish, 2024 WI 27 (June 27, 2024).

Justice Rebecca Dallet wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Brian Hagedorn, Justice Jill Karofsky, and Justice Janet Protasiewicz. Justice Rebecca Grassl Bradley wrote a concurrence, joined by Chief Justice Annette Ziegler.

‘You Have Time to Repent’

Between 2019 and 2020, Brian Aish protested at the Blair Health Center in Trempealeau County, where Kindschy worked. Planned Parenthood provides family planning services at the clinic, but abortions are not performed there.

In March 2020, Kindschy filed for a harassment injunction against Aish in Trempealeau County Circuit Court. She claimed Aish had threatened her on multiple occasions.

Kindschy testified that in the autumn of 2019, Aish became aggressive and confrontational towards her.

On Oct. 8, 2019, Aish – standing about three feet away from Kindschy’s car – told Kindschy “You have time to repent. You will be lucky if you don’t get killed by a drunk driver on your way home. Bad things are going to start happening to you and your family.”

Later in October 2019, Aish ran into the road as Kindschy was leaving the clinic and pumped an anti-abortion sign to within inches of her car window.

On Feb. 18, 2020, Aish told Kindschy, “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.”

On Feb. 25, 2020, Aish accused Kindschy of lying about him to the authorities. Again, Aish said Kindschy would be lucky to get home safely.

Court Issues Injunction

Based on those three statements, the circuit court ruled that Aish had repeatedly intimidated and harassed Kindschy.

The circuit found that Aish’s statements that Kindschy would be lucky to make it home alive and that bad things would start happening to her family were threatening.

The circuit court also found that Aish had used intimidation in an effort to scare Kindschy into quitting her job. The circuit court issued an injunction prohibiting Aish from harassing Kindschy.

The injunction also required Aish to avoid Kindschy’s home and any premises that Kindschy temporarily occupied, including the clinic, until Sept. 9, 2024.

After the circuit court denied Aish’s motion for reconsideration, Aish appealed. The Wisconsin Court of Appeals affirmed the circuit court. Aish appealed.

No Subjective Intent Finding

Writing for the majority, Justice Dallet concluded that the injunction against Aish was a content-based restriction because it addressed the content of Aish’s disturbing statements to Kindschy.

Because the injunction was a content-based restriction, Dallet explained that under U.S. Supreme Court case law, it was constitutional only if it: 1) fit within the historical exception for “true threats”; or 2) satisfied strict scrutiny review because it was narrowly tailored to satisfy a compelling state interest.

Justice Dallet concluded that even if Aish’s statements were true threats (an issue the majority didn’t decide), the injunction still violated the First Amendment.

That was so, Dallet explained, because the circuit court failed to make a finding that Aish had consciously disregarded a substantial risk that his statements would be interpreted as threatening violence – a “subjective intent” finding required before speech can be held to constitute a true threat.

Kindschy argued that the subjective intent requirement shouldn’t apply to Aish’s statements because the case in which the U.S. Supreme Court established that requirement was a criminal case.

But that was a distinction without a difference, Justice Dallet reasoned.

“The [Supreme Court’s] 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 is no less chilling of protected speech.”

Fails Strict Scrutiny

The majority also concluded that the injunction did not survive strict scrutiny because it not only restricted Aish’s speech – it also barred him from the location where Kindschy might be and barred him from speaking to other people who were either: 1) at the clinic; or 2) anywhere else Kindschy 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,” Dallet wrote.

The Supreme Court reversed the Court of Appeals and remanded the case to the circuit court.

R. Bradley Concurrence

Justice R. Bradley argued in her concurrence that the injunction violated the First Amendment because Aish’s statements to Kindschy were not true threats.

R. Bradley wrote that Aish’s statements amounted to “words of caution or warnings.”

“The statement, ‘Bad things are going to start happening to you and your family,’ does not overtly refer to violence,” Justice R. Bradley wrote. “ ‘Bad things’ could include violence, but they could just as easily include other undesirable outcomes, such as the loss of a job.”

R. Bradley also pointed out that none of the three statements identified Aish or a co-conspirator as the person who would harm Kindschy.

“At most, the statements suggested unaffiliated third parties could cause Kindschy harm, like a ‘drunk driver,’” Justice R. Bradley wrote.

R. Bradley also pointed out that there was nothing in the record to suggest that Aish had taken any steps toward harming anyone.

“Courts must be careful not to use the context of background violence by third parties to misconstrue obviously non-threatening speech as true threats,” Justice R. Bradley wrote. “Doing so would impermissibly chill the speech of those who express a position shared by a violent fringe.”