MADISON, Wis. (CN) — The Wisconsin Supreme Court on Tuesday again took up the case of a woman who got an injunction against a protester who repeatedly confronted her at her job at a family planning clinic, this time in light of a 2023 U.S. Supreme Court decision that changed the standard for protected speech perceived as threatening.
Nurse practitioner Nancy Kindschy claimed in a petition to the Trempealeau County Circuit Court that Brian Aish harassed and threatened her while he was protesting outside Blair Clinic, where Kindschy worked. Planned Parenthood began offering family planning services at the clinic in 2019 until it closed after the group’s Wisconsin chapter merged with Essential Health, according to a Planned Parenthood of Wisconsin representative.
The threats and singled-out attention from Aish were enough that Kindschy feared for her safety, and co-workers claim they noticed she was afraid to leave work because of him. The clinic arranged additional security based on Kindschy’s concerns.
Aish, a retired law enforcement officer, denied any intention to harm or intimidate Kindschy and claimed, according to court documents, that he protests at family planning clinics to “stand for children” and to urge people who work at the clinics to “repent and turn to God before it is too late.”
Judge Rian Radtke granted Kindschy an injunction, barring Aish from harassing her and requiring him to stay away from her home or any premises she temporarily occupied, including Blair Clinic, for four years. Radtke acknowledged that Aish’s First Amendment rights are protected, but he felt Aish’s intimidation of Kindschy “crosse[d] the line.”
Aish appealed on First Amendment grounds, but a Wisconsin Court of Appeals panel also ruled in Kindschy’s favor, finding that “harassing behavior cannot be transformed into non-harassing, legitimate conduct simply by labeling it as a political protest.”
The Wisconsin Supreme Court held arguments upon Aish’s further appeal in December 2022, but then stayed the case pending the U.S. Supreme Court decision in Counterman v. Colorado, which dropped in June 2023.
In Counterman, the high court largely sided with a man who stalked and threatened a singer-songwriter for years, finding in essence that his speech was protected because the state did not prove he was aware his speech could be perceived as threatening. The songwriter’s lawyers said all the decision did was make it harder to prosecute stalkers.
Naturally, Counterman was at the center of Tuesday’s renewed arguments over Kindschy’s petition for an injunction against Aish, as it changed the legal landscape upon which the circuit court first handled the case.
Joan Mannix, an attorney with the conservative Chicago-based Thomas More Society, argued on behalf of Aish. She said her client’s words and actions did not rise to the Counterman standard of recklessness and intent to harm or threaten, as Aish ultimately only sought to proselytize and convert Kindschy, frequently reiterating that his message was one of “love and non-aggression.”
“I can phrase my message with an intent to scare you, to wake you up, to shake you up, to make you listen to me,” Mannix said, but that doesn’t make it truly threatening, especially since public forum speech is “the Wild West of First Amendment speech.”
Liberal Justice Rebecca Dallet, wrangling with the “true threat” legal standard, quoted from the circuit court record statements of Aish’s that Kindschy “would be lucky if she was able to make it home safely” from work, and warning her that she could be killed or bad things would happen to her family because she worked where she worked.
Mannix did not feel these statements met the threshold to be objectively construed as true threats.
“I don’t believe the gist of any of those is that Mr. Aish would harm Ms. Kindschy,” she said, adding that just because one is intimidated does not mean what was said to them is a serious threat.
When Justice Ann Walsh Bradley wondered aloud if the case boiled down to something as fluid as whether a threat is specific enough to be enjoined, Mannix opined that it essentially was.
Diane Welsh, an attorney with the Madison-based Pines Bach firm arguing for Kindschy, warned that “we need to be careful about applying Counterman wholesale to harassment.” She said statements can be harassing or threatening and disrupt someone’s life and well-being without the speaker specifically threatening violence.
“The Counterman decision wasn’t a call to state legislatures and state courts to revise harassment statutes,” Welsh said.
Conservative Justices Rebecca Grassl Bradley and Brian Hagedorn consistently resisted Welsh’s arguments. The former shot down the theoretical argument that a court could enjoin all protesters outside abortion clinics because some who have protested abortion have committed acts of violence; the latter noted that the First Amendment has a higher standard than Wisconsin’s harassment statute, and that Kindschy’s injunction may be hard to support given how the trial court’s findings square with Counterman.
Toward the end of arguments Dallet put it plainly to Welsh that the state court is ultimately bound by what the U.S. Supreme Court says regarding how Counterman applies to Wisconsin law.
“Even if we don’t like it,” Dallet added.
Follow @cnsjkelly
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
