Wisconsin Supreme Court considers lifting injunction against pro-life protester

The Wisconsin Supreme Court is considering whether to lift a 2020 injunction on a pro-life protester who harassed a reproductive-health nurse.

Justices also questioned whether a recent U.S. Supreme Court ruling means the case should be sent back to lower courts.

In 2020, a Trempealeau County judge issued a harassment injunction against pro-life demonstrator Brian Aish, barring him from being near Planned Parenthood nurse Nancy Kindschy, who sometimes worked at a small clinic in the western Wisconsin city of Blair.

Kindschy sought the order after Aish frightened her by saying bad things would happen to the nurse or her family if she did not quit her job.

Kindschy testified the exchanges began at several clinics she worked at in 2014 and were not initially confrontational. She said that changed in 2019 when Aish began to single her out, followed behind her vehicle in one instance and told her she would be “lucky” to make it home safely.

Aish appealed the injunction, which was upheld by a state appeals court in 2022.

During arguments before the Wisconsin Supreme Court Tuesday, Aish’s attorney, Joan Mannix, said Aish’s comments, made from a public sidewalk, are protected speech under the U.S. Constitution’s First Amendment. 

“It might be improper if I came to your house,” Mannix said. “But in a First Amendment, traditional public forum — which is like the wild west of First Amendment speech — I can phrase my message in a very startling, obnoxious, frightening, intimidating way.”

While the case was pending in Wisconsin, the U.S. Supreme Court overturned a Colorado case against a man convicted of stalking a musician in June 2023. That order created a new standard differentiating when speech is protected and when it becomes a justiciable threat. The majority opinion held the state “must show that the defendant consciously disregarded a substantial risk” that comments would be viewed as threatening violence.

Mannix said Aish’s comments to Kindschy were “coming from a place of love and non aggression” aimed at convincing her to repent her sins.

Liberal Justice Janet Protasiewicz questioned that logic, stating Aish’s comments “were pretty much in her face conduct” on “a repeated basis.” 

“And some of the comments that he makes, sure, I can buy that you have time to repent,” Protasiewicz said. “But once he starts talking — ‘It’s not going to be long,’ and ‘bad things are going to start happening to you and your family’ — how can that not be considered a true threat?”

Manix said it’s all about context and Aish was trying to tell Kindschy “bad things can happen at anytime and then you’ll lose your opportunity to repent.”

Attorney Diane Welsh, who is representing Kindschy, told justices she doesn’t think the 2023 U.S. Supreme Court ruling applies to Wisconsin law governing harassment restraining orders and injunctions. She said that’s because the majority opinion doesn’t specify that other types of speech, other than those deemed “true threats,” can’t be enjoined by the state.

Justice Brian Hagedorn countered by saying there was no evidence of Aish making a “true threat.”

“Certainly, the trial court didn’t make any findings that he consciously disregarded a substantial risk his communications would be viewed as threatening violence,” Hagedorn said. 

Welsh said that’s true because the Trempealeau County judge’s ruling in 2020 was based on state statute and made before the U.S. Supreme Court changed its standard for harassment. 

Liberal Justice Jill Karofsky, along with Protasiewicz, asked Welsh whether the case should be sent back to the circuit court in light of the U.S. Supreme Court’s ruling. Welsh said she believes the Wisconsin justices have enough evidence in the record to decide the case.

If they wish to remand the case, Welsh told justices the “practical effect” of doing so may not bear much weight because Kindschy has since retired and the western Wisconsin clinic she worked at years ago has since closed.