High court rules county order unconstitutional

The Wisconsin Supreme Court has ruled that an order issued by a Trempealeau County judge violated an abortion protestor’s freedom of speech rights.

All seven of the justices on the state’s highest court agreed that Brian Aish of Black River Falls was denied his First Amendment rights when Circuit Court Judge Rian Radtke in 2020 issued an injunction forbidding the man from being near a then-employee of Planned Parenthood’s Blair Health Center. 

Radtke’s injunction was upheld by the state appeals court in 2022, but the supreme court ruling reverses that finding and ordered the injunction to be lifted. The employee, Nancy Kindschy, a nurse practitioner, has retired, according to court documents. Court records say that though affiliated with Planned Parenthood, the Blair Health Center did not perform abortions. The Blair location has since closed. 

Writing for five of the state’s supreme court justices, Justice Rebecca Dallet refuted claims by Kindschy’s attorney that Aish’s comments to Kindschy were “true threats” and that a recent U.S. Supreme Court ruling in a criminal trial did not apply to Kindschy’s civil action. Her opinion was issued last Thursday.

Among the high court’s findings, Dallet says: “we hold that (the U.S. court case) applies to civil harassment injunctions premised on true threats. Thus, before … issuing such an injunction, a circuit court must find that the respondent ‘consciously disregarded a substantial risk that his communications would be viewed as threatening violence.’”

Dallet further writes that the county court did not establish that Aish’s comments constituted a “true threat,” defined as a meaning to “commit an act of unlawful violence.’” 

Moreover, “the injunction orders 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,” Dallet’s opinion says. “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. Therefore, it cannot survive strict scrutiny,” 

Kindschy sought an injunction against Aish after one particular 2019 encounter: “(A)s she left the Blair Planned Parenthood facility, Aish stood on the sidewalk three to four feet away from her vehicle holding a sign,” according to court documents. “Aish looked at Kindschy and said, ‘You have time to repent. You will be lucky if you don’t get killed by a drunk driver on your way home. Bad things are going to start happening to you and your family.’ According to Kindschy, Aish was ‘very aggressive,’ ‘loud,’ and ‘very stern’ during this interaction. She testified his statements made her fearful.” 

Rather than issuing a “true threat” against Kindschy, however, Aish testified: “he would ‘pray’ Kindschy made it home safely so that she could ‘turn to Christ and repent,’” according to court records. “Aish thereby expressed he did not want Kindschy to get hurt. Instead, he hoped she would adopt his religious views and leave her job at Planned Parenthood.”

While all seven justices agreed Aish’s rights were violated, Justice Ann Bradley noted in a concurring opinion that, “The government violated Aish’s free speech rights for nearly four years, in part because of this court’s avoidable delay in deciding the matter. Any future attempt to enjoin Aish based on those statements would violate the Constitution.”

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