Nancy Kindschy v. Brian Aish

Milwaukee, Wisconsin civil litigation lawyers represented the Plaintiff who sued seeking an injunction prohibiting harassment.

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.



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 staffto work elsewhere.Between 2014 and 2019, Aish regularly protested at two clinics where Nancy Kindschy worked as a nurse practitioner. Aish's conductduring that time consisted mainly of holding up signs quoting Bible verses and preaching hisChristian andanti-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.



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 actswhich harass or intimidate another person and which serve no legitimate purpose." §813.125(1)(am)4.b.



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."Ashcroftv.ACLU,535 U.S. 564, 573 (2002) (internal quotation marks omitted).



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,"4incitement to imminent lawless action,5obscenity,6defamation,7or——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 (quoting Boos v. Barry, 485 U.S. 312, 321 (1988)).4Chaplinsky v. New Hampshire, 315U.S. 568 (1942).5Brandenburg v. Ohio

Affirmed