Kindschy v. Aish

• Docket Number: 2020AP1775
• Decision Date: 27 June 2024
• Citation: 412 Wis. 2d 319,401 Wis. 2d 406,973 N.W.2d 828,8 N.W.3d 1
• Parties: Nancy Kindschy, Petitioner-Respondent, v. Brian Aish, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

412 Wis. 2d 319

401 Wis. 2d 406

973 N.W.2d 828

8 N.W.3d 1

Nancy Kindschy, Petitioner-Respondent,

v.Brian Aish, Respondent-Appellant-Petitioner.

Supreme Court

No. 2020AP1775. Oral argument December 1, 2022 and March 19, 2024.—Decided June 27, 2024.

(Reversing and remanding 401 Wis. 2d 406, 973 N.W.2d 828.)

2024 WI 27

(Also reported in 8 N.W.3d 1.)

REVIEW of a decision of the Court of Appeals.Reversed and remanded.

For the respondent-appellant-petitioner, there were briefs filed by Dudley A. Williams, and Buting, Williams & Stilling S.C., Milwaukee; Joan M. Mannix(pro hac vice), and Thomas More Society, Chicago, IL.There were oral arguments by Joan M. Mannix.

For the respondent-respondent, there were briefs filed by Diane M. Welsh, Leslie A. Freehil and Pines Bach LLP, Madison.There were oral arguments by Leslie A. Freehil and Diane M. Welsh.

An amicus curiae brief was filed by Thomas C. Bellavia, assistant attorney general, with whom on the brief was Joshua L. Kaul,attorney general, on behalf of Wisconsin Department of Justice.

An amicus curiae brief was filed by Andrew t. Dufresne, Jacob A. Neeley, and Perkins Coie LLP, Madison; Arthur S. Greenspan(pro hac vice), Evelyn Pang(pro hac vice), and Perkins Coie LLP, New York, NY; Kathleen Wills(pro hac vice), and Perkins Coie LLP, Washington, D.C, on behalf of End Domestic Abuse Wisconsin.

¶ 1.REBECCA FRANK DALLET, J.This case involves a harassment injunction issued against Brian Aish, an anti-abortion protestor, based on statements he made to Nancy Kindschy, a nurse practitioner, as she left her job at a family planning clinic.We must decide whether the injunction violates Aish’s First Amendment right to free speech.

¶ 2.We conclude that the injunction is a content-based restriction on Aish's speech, and therefore complies with the First Amendment only if: (1) Aish's statements were "true threats" and he"consciously disregarded a substantial risk that his [statements] would be viewed as threatening violence;" or (2) the injunction satisfies strict scrutiny; that is, it is narrowly tailored to achieve a compelling state interest.SeeCounterman v. Colorado,600 U.S. 66, 69(2023);R.A.V. v. City of St. Paul,505 U.S. 377, 395(1992).On the record before us, we hold that the injunction fails to satisfy either of these two standards.We therefore reverse the decision of the court of appeals and remand to the circuit court with instructions to vacate the injunction.¹

I

¶ 3.Brian Aish protests outside of family planning clinics to "warn women [seeking abortions]they will be accountable to God on the day of judgment if they proceed," and to persuade clinic staff to work elsewhere.Between 2014 and 2019, Aish regularly protested at two clinics where Nancy Kindschy worked as a nurse practitioner.Aish's conduct during that time consisted mainly of holding up signs quoting Bible verses and preaching his Christian and anti-abortion beliefs broadly to all staff and visitors.Beginning in 2019, however, Aish began directing his comments toward Kindschy, singling her out with what she believed to be threatening messages.

¶ 4.Kindschy petitioned for a harassment injunction under Wis. Stat. § 813.125(2019-20).²That statute allows the court to issue an injunction if there are "reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner."§ 813.125(4)(a)3.Harassment is defined in pertinent part as "[e]ngaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose."§ 813.125(1)(am)4.b.

¶ 5.The circuit court³ heard two days of testimony, and made the following findings of fact:

• On October 8, 2019, as Kindschy and a coworker were leaving the clinic, Aish stated that Kindschy had time to repent, that "it won't be long before bad things will happen to you and your family," and that "you could get killed by a drunk driver tonight."

• On February 18, 2020, Aish said to Kindschy, "I pray you guys make it home safely for another day or two until you turn to Christ and repent.You still have time."

• On February 25, 2020, Aish again indicated that Kindschy would be lucky if she made it home safely.

• The statements made by Aish on these dates were specifically directed toward Kindschy.

¶ 6.The circuit court further found that the testimony of both Kindschy and Aish was credible.Kindschy, the circuit court explained, was credible and genuine, although "her recollection wasn't exactly clear on certain details."And Aish was "very credible as to what happened [during] the incidents, as well as his position on his religious beliefs."As the circuit court explained, Aish was "trying to share the gospel, and also has a stance of being against the things that Planned Parenthood does, which includes abortions …."According to the circuit court, Aish's purpose in speaking to Kindschy was "to get [her] to leave her employment or stop what she was doing," but also, "a dual purpose here was to get Ms. Kindschy to adopt … Mr. Aish's religious beliefs …."The circuit court said that persuading another person to adopt different religious beliefs was "a legitimate purpose from [Aish's] perspective, from his standpoint," and noted that Aish's statements were made in the context of "convey[ing] a message of repentance" and were "even coming from a place of love or nonaggression."Nonetheless, the circuit court found that Aish's statements were intimidating because they were the "types of things [that] certainly would intimidate somebody because … they are statements that address somebody's loss of life or their family members being hurt or harmed …."The circuit court further concluded that Aish's statements did not serve a legitimate purpose because "to use intimidation or scare tactics" to per- suade someone to leave their employment or adopt different religious beliefs is "not a legitimate purpose."

¶ 7.Following the hearing, the circuit court issued a four-year injunction which prohibited Aish from speaking to Kindschy, or going to her residence "or any other premises temporarily occupied by [Kindschy]."Aish appealed and the court of appeals affirmed the issuance of the injunction.SeeKindschy v. Aish,2022 WI App 17, 401 Wis. 2d 406, 973 N.W.2d 828.

¶ 8.We granted review.After we heard oral argument but before we issued an opinion, the United States Supreme Court decided Counterman v. Colorado,600 U.S. 66(2023), holding that in a criminal prosecution for harassment premised on true threats, the First Amendment requires the government to prove at a minimum that the defendant"consciously disregarded a substantial risk that his communications would be viewed as threatening violence."Id. at 69.Subsequently, we ordered the parties to submit supplemental briefing and heard a second round of oral argument regarding the impact of Counterman on this case.

II

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¶ 9.When reviewing a harassment injunction, we uphold the circuit court's factual findings unless they are clearly erroneous.SeeBd. of Regents-UW Sys. v. Decker,2014 WI 68, ¶ 20, 355 Wis. 2d 800, 850 N.W.2d 112.We review whether a harassment injunction complies with the First Amendment de novo.Seeid.

III

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¶ 10.The First Amendment protects the fundamental right to free speech.SeeU.S. Const. amend.I ("Congress shall make no law … abridging the freedom of speech")."[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."Ashcroft v. ACLU,535 U.S. 564, 573(2002)(internal quotation marks omitted).

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¶ 11.But this principle is not absolute.Regulation of speech based on the message it conveys, known as a content-based restriction, may pass constitutional muster in two ways.First, if the regulation restricts speech that falls into one of several historically unprotected categories, such as "fighting words,"⁴ incitement to imminent lawless action,⁵ obscenity,⁶ defamation,⁷ or—as is relevant here—"true threats."Watts v. United States,394 U.S. 705(1969)(per curiam).Second, if the regulation restricts otherwise protected speech but satisfies strict scrutiny; that is, if it is " 'necessary to serve a compelling state interest and … [are] narrowly drawn to achieve that end.’ "State v. Baron, 2009 WI 58, ¶ 45, 318 Wis. 2d 60, 769 N.W.2d 34(quotingBoos v. Barry, 485 U.S. 312, 321(1988)).

¶ 12.The harassment injunction in this case is a content-based restriction.That is because it was issued based on the content of Aish's speech, namely his statements that "bad things are going to start happening to [Kindschy] and [her] family,"she"could get killed by a drunk driver tonight," and that she"would be lucky if [she] got home safely."⁸SeeCity of Austin v. Reagan Nat'l Advert. of Austin, LLC,596 U.S. 61, 69(2022)("A regulation of speech is facially content based under the First Amendment if it 'target[s] speech based on its communicative content'—that is, if it 'applies to particular speech because of the topic discussed or the idea or message expressed.' "(quotingReed v. Town of Gilbert,576 U.S. 155, 163(2015))).Kindschy primarily argues that the injunction is nonetheless constitutional because Aish's statements were true threats and were thus unprotected by the First Amendment.Kindschy's secondary argument is that even if Aish's statements were not true threats, the injunction is constitutional because it survives strict scrutiny.

¶ 13.We begin by evaluating Kindschy's true- threats argument.We conclude that even if Aish's statements were true threats—an issue we do not decide—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."Counterman,600 U.S....