Wisconsin Supreme Court Unanimously Vacates Restraining Order Against Planned Parenthood Protester
Court rules injunction limiting where individual may protest violated the First Amendment
Happy Independence Day! Here in southeastern Wisconsin, it looks to be a beautiful day to get outside. I hope the same is true near you.
While the U.S. Supreme Court wrapped up its term on Monday, the Wisconsin Supreme Court still has a few decisions yet to issue. Unlike the U.S. Supreme Court (which aims to publish all of its opinions by June 30), the Wisconsin Supreme Court sets the slightly less ambitious goal of “mandating” all of its cases by June 30. A case is considered mandated when the opinions are in their final form and the justices have made their final declarations as to which opinions they will join. From there, it takes a few days to assemble the opinions into a single document, conduct final checks, and ready the decision for publication. So, although the justices likely finished their work by June 30, we’re still waiting to see their last few decisions.
But it looks like we won’t have to wait much longer. The court announced that it will release three decisions tomorrow, including Priorities USA v. Wisconsin Elections Commission (legality of ballot dropboxes) and Evers v. Marklein (constitutionality of the legislative veto). I expect some fireworks out of those decisions, and I’m sure I’ll have more to say once they’re issued.
Alright, on to Kindschy v. Aish, 2024 WI 27, a case in which the often-fractious Wisconsin Supreme Court unanimously agreed to vacate a restraining order against a Planned Parenthood protester on First Amendment grounds.
Between 2014 and 2019, Brian Aish routinely protested at two Planned Parenthood locations where Nancy Kindschy worked as a nurse practitioner. And, from the sounds of it, the two peacefully co-existed during those years. However, beginning in 2019, Aish made a series of comments to Kindschy while he was protesting at Planned Parenthood’s Blair Health Center which Kindschy interpreted as threats. The following is the court’s summary of Aish’s statements towards Kindschy, as found by the circuit court:
On October 8, 2019, as Kindschy and a co-worker 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.”
Following these statements, Kindschy petitioned for a harassment restraining order against Aish under Wis. Stat. § 813.125. That statute permits circuit courts to issue a restraining order if there are “reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner,” with “harassment” defined as engaging “in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.”
The circuit court granted Kindschy’s request for a restraining order, issuing a four-year injunction which prohibited Aish from speaking to Kindschy or going to premises Kindschy temporarily occupied. Aish appealed, arguing the order violated both Wis. Stat. § 813.125 and the First Amendment. The court of appeals affirmed in a published decision.
At the supreme court, this case charted an unusual course. Briefing and oral argument were completed by December 2022. However, after the U.S. Supreme Court’s 2023 decision in Counterman v. Colorado updated the analytical framework for “true threat” First Amendment issues, the court ordered supplemental briefing and heard a second round of oral argument in March 2024.
Late last week, the court unanimously agreed to vacate the restraining order against Aish. Justice Dallet authored the majority opinion for five justices, including Justices Ann Walsh Bradley, Hagedorn, Karofsky, and Protasiewicz. Justice Rebecca Grassl Bradley authored a concurrence joined by Chief Justice Ziegler.
The bulk of Justice Dallet’s brisk 14-page majority opinion focused on applying Counterman to the facts of this case. Counterman is the most recent in a string of U.S. Supreme Court precedents analyzing when speech falls outside the protections of the First Amendment because the speech is considered a true threat. Relevant here, Counterman established that a person may not be criminally convicted for making a true threat unless the speaker issued the threat either recklessly or intentionally. In other words, a person cannot face conviction for making an unintentionally threatening statement. Rather, there must be a finding that the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
Here, the supreme court applied Counterman to hold that a restraining order may not restrict even threatening speech unless the circuit court finds the respondent consciously disregarded the risk that his statement would be perceived as a threat. Of course, the circuit court had not made such a finding because it issued the restraining order before Counterman was decided. Accordingly, the court vacated the injunction and remanded for further proceedings. Separately, the court also held that the injunction was a content-based restriction and that it failed strict scrutiny because it burdened more speech than necessary to protect the relevant interests.
Justice Rebecca Bradley’s concurrence agreed with the majority that the circuit court’s failure to make a mens rea finding was fatal to the restraining order under Counterman. However, she argued the injunction violated the First Amendment in another, more fundamental way: “The circuit court never deemed Aish’s statements true threats, and no reasonable factfinder could have made such a finding based on the record before the circuit court.” In a lengthy opinion, Justice Bradley walked through the evidence in the record to demonstrate why Aish’s statements could not reasonably be interpreted as true threats. Thus, she argued, any “future attempt to enjoin Aish based on those statements would violate the Constitution.”
Presumably, Justice Rebecca Bradley and Chief Justice Ziegler declined to join the majority opinion because it left the door open to subsequent fact-finding and possibly re-entry of a restraining order. Just the same, it was nice to see the court reach a unanimous result in a potentially politically charged case.
Don’t expect this unanimity on cases involving abortion to hold. On Tuesday, the court granted bypass in Kaul v. Urmanski (in which the Dane County Circuit Court held Wisconsin’s so-called 1849 abortion ban doesn’t cover abortion); it granted the original action petition in Planned Parenthood of Wisconsin v. Urmanski (which argues the 1849 abortion ban violates Article I, Section 1 of the Wisconsin Constitution); and it denied several pro-life parties the opportunity to intervene in the original action. Expect abortion to feature prominently in the court’s 2024-25 term.