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SCOW finds injunction against abortion clinic protestor violated First Amendment.

Kindschy v. Aish, 2024 WI 27, 6/27/24, reversing a published court of appeals decision; case activity (including briefs)

SCOW finds injunction against abortion clinic protestor violated First Amendment.

Pursuant to Wis. Stat. § 813.125, the Calumet County Circuit Court enjoined Brian Aish, an anti-abortion protestor, from speaking to or going to the residence or any other place temporarily occupied by Nancy Kindschy, who was a nurse practitioner at Planned Parenthood.  Over a period of five months, Aish told Kindschy as she was leaving the clinic: “it won’t be long before bad things will happen to you and your family,” “you could get killed by a drunk driver tonight,” “I pray you guys make it home safely for another day or two until you turn to Christ and repent.  You still have time,” and statements indicating Kindschy would be lucky to make it home safely.  The circuit court found that the statements provided reasonable grounds to believe that Aish intended to harass or intimidate Kindschy, which was affirmed by the court of appeals.

After the Wisconsin Supreme Court accepted review, the U.S. Supreme Court decided Counterman v. Colorado, 600 U.S. 66 (2023), which held that in a criminal prosecution for harassment based on true threats, the First Amendment requires the government to prove that the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence..”  Id. at 69.

In a decision unanimous in the judgment (Justice Rebecca Grassl Bradley filed an opinion concurring in the judgment, in which Chief Justice Ziegler joined), the Supreme Court held that the injunction was a content-based restriction on Aish’s speech.  (¶ 12).  As such, regulating Aish’s speech was only permissible if it conveyed a “true threat” or if the injunction satisfied strict scrutiny.  (¶ 11).

Counterman held that before a person may be criminally convicted for making a true threat, the First Amendment requires proof that the speaker acted at least recklessly.  600 U.S. at 78-79.  SCOW found that Counterman’s intent requirement applied to civil harassment injunctions premised on true threats.  (¶ 21).  Since the circuit court’s harassment injunction was issued before Counterman was decided, it did not evaluate whether Aish’s statements were reckless—whether he consciously disregarded a substantial risk that his communications would be viewed as threatening violence.  The Court concluded that because the circuit court did not make clear findings regarding Aish’s subjective intent, “we need not decide whether Aish’s statements were true threats.  Whether they were true threats or not, the injunction cannot be justified on true-threats grounds.”  (¶ 22).

The Court also determined that the injunction did not satisfy strict scrutiny because it ordered 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.”  (¶ 24).

Justice Rebecca Bradley’s opinion concurring in the judgment found that no reasonable factfinder could have determined Aish’s statements were true threats.  (¶ 28).

As we noted in an earlier post, this isn’t a criminal case, but may be of interest because violations of a harassment injunction can lead to arrest and criminal prosecution.  Wis. Stat. § 813.123(9) and (10) 

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