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SCOW takes up harassment injunction against anti-abortion protester

Nancy Kindschy v. Brian Aish, 2020AP1775, petition for review of a published court of appeals decision granted 6/22/22; case activity (including briefs)

Issues (from the petition for review):

Whether Wis. Stat. §813.125, as construed by the Court of Appeals to prohibit speech from a public sidewalk intended to persuade listeners to cease their sinful conduct (participation in abortion) and repent immediately before something bad happens and they no longer have time to repent, violates the First Amendment of the U.S. Constitution and Art. I, §3 of the Wisconsin Constitution?

Whether speech from a public sidewalk intended to persuade listeners, even if directed to a specific listener, to cease sinful conduct (participation in abortion) and repent immediately before something bad happens and there is no longer time to repent serves “no legitimate purpose” within the meaning of Wis. Stat. §813.125?

Whether enjoining, for a period of four years, a longtime pro-life, anti-Planned Parenthood protestor from protesting on a public sidewalk in front of a Planned Parenthood during its business hours because he made comments urging a Planned Parenthood worker to repent before something bad happens and there was no more time to repent, constitutes an unconstitutional restraint on First Amendment protected expression?

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) & (10).

The court of appeals’ published opinion is pretty mushy (in the technical legal sense). It concluded that the entry of an injunction against Aish didn’t violate the First Amendment seemingly because the audience to which Aish directed his speech (Kindschy, a nurse practitioner at a clinic that sometimes hosts Planned Parenthood counselors) subjectively felt intimidated. The point is not that Kindschy shouldn’t have felt this way; Aish addressed her angrily and aggressively, saying at one point she’d be “lucky” to get home safely. But if the response to Aish’s First Amendment claim is that his words and associated actions were intimidating to Kindschy, the First Amendment question would seem to turn on whether Aish’s words and actions conveyed a “true threat.” See Virginia v. Black, 538 U.S. 343 (2003). Instead, the court of appeals seems to have engaged in a sort of ad hoc balancing test: it relied on, for example, Aish’s ultimate aim for his speech (to get Kindschy to quit her job at the clinic), and on its evaluation of the aptness of Aish’s protest (noting that the clinic did not actually perform abortions, nor even host Planned Parenthood most days). And on the other hand, Aish’s argument simply pretends the obvious threatening connotations of his remarks don’t exist–you can get a flavor of it from the issues presented above. Perhaps SCOW can use its law development chops to decide this case on a more principled basis.

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