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  • March 29, 2022

    Intimidating Statements by Anti-Abortion Protestor Not Protected Speech

    A circuit court properly entered an injunction against an anti-abortion protestor who repeatedly made intimidating statements to a nurse who worked at clinic, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    People Holding Signs and Yelling In Protest

    March 29, 2022 – A circuit court properly entered an injunction against an anti-abortion protestor who repeatedly made intimidating statements to a nurse who worked at clinic, the Wisconsin Court of Appeals has ruled.

    In Kindschy v. Aish, 2020AP1775 (March 8, 2022), the Wisconsin Court of Appeals District III held the protestor’s conduct was not protected by the First Amendment.  

    ‘You Have Time to Repent'

    Between 2019 and 2020, Brian Aish protested at the Blair Health Center in Trempealeau County, where Kindschy worked. Planned Parenthood provides family planning services at the clinic but abortions are not performed there.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    In March 2020, Kindschy filed for a harassment injunction against Aish in Trempealeau County Circuit Court. She claimed that Aish had threatened her on multiple occasions, causing her to feel unsafe.

    Kindschy testified that in the autumn of 2019, Aish became aggressive and confrontational towards her.

    On Oct. 18, 2019, Aish – standing about three feet away from Kindschy’s car – told Kindschy “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.”

    ‘You Have Blood on Your Hands’

    One week later, Kindschy testified, Aish walked up to her as she was leaving the clinic and spoke to her loudly in a cold and angry tone: “You have blood on your hands.”

    Later in October 2019, Aish ran into the road as Kindschy was leaving the clinic and pumped an anti-abortion sign to within inches of her car window.

    In February 2020, Aish followed Kindschy as she walked to her vehicle outside the clinic. He told Kindschy that she would be lucky to make it home safely; he also told her that she could be killed and that bad things would start happening to her family.

    One week later, Aish accused Kindschy of lying about him to the authorities. Again, he said, Kindschy would be lucky to get home safely. These statements caused Kindschy great worry.

    Court Issues Injunction

    The circuit court ruled that Aish had repeatedly intimidated and harassed Kindschy. The circuit found that Aish’s statements that Kindschy would be lucky to make it home alive and that bad things would start happening to her family were threatening.

    The circuit court also found that Aish had used intimidation in an effort to scare Kindschy into quitting her job. The circuit court issued an injunction that prohibited Aish from harassing Kindschy.

    The injunction also required Aish to avoid Kindschy’s home and any premises that Kindschy temporarily occupied, including the clinic, until Sept. 9, 2024.

    After the circuit court denied Aish’s motion for reconsideration, Aish appealed.

    Evidence Supports Circuit Court’s Ruling

    Before the court of appeals, Aish argued that the circuit court’s ruling violated his right to assemble and his right to free expression under the First Amendment.

    Writing for a three-judge panel, Judge Gregory Gill explained that the circuit court had reasonable grounds to believe that Aish had engaged in harassment with the intent to intimidate Kindschy under Wis. Stat. section 813.125(4)(a)3.

    Aish argued that the circuit court had no evidence and had made no finding that he’d threatened Kindschy or suggested that he would play a role in any bad thing that might happen to Kindschy or her family.

    But Gill explained that, given the applicable standard of review, the court of appeals would not second-guess the circuit court’s credibility determination.

    And while Aish argued that there was evidence that contradicted the circuit court’s findings, Judge Gill pointed out that he did not argue that the findings were clearly erroneous.

    “Here, the evidence clearly supports the court’s findings that Aish harassed Kindschy and intimidated her,” Gill wrote. “Kindschy testified that she was very frightened not only by Aish’s proximity and his words, but the change in his demeanor.”

    Clinic Added Guard, Cameras

    Aish argued that his statements did nothing more than alert Kindschy to “the reality of commonplace but serious dangers,” and lacked any explicit or suggested causal relationship to him.

    That argument was undercut by both the record and the findings made by the circuit court, Judge Gill explained.

    “Kindschy testified that she was scared of Aish as a result of the comments he made to her, not that she was suddenly fearful that she or her family might be the victim of some wholly unrelated accident,” Gill wrote.

    Judge Gill pointed out that in response to Kindschy’s concerns about Aish, the clinic installed cameras and hired a security guard.

    Judge Gill explained that the evidence was sufficient to support the circuit court’s finding that Aish had engaged in a pattern of harassing or intimidating conduct under section 813.125(1)(am)4.b.

    Free Expression or Fear Inducement?

    Aish argued that his conduct was motivated by two goals protected by the First Amendment: to convince Kindschy to quit the clinic, and to proselytize.

    The court of appeals accepted that Aish intended to convince Kindschy to quit the clinic and to proselytize. However, Judge Gill explained, the circuit court found that Aish also intended to frighten Kindschy.

    “Harassing behavior cannot be transformed into nonharrassing, legitimate conduct simply be labeling it as a political protest,” Judge Gill wrote.

    Conduct Was Private, Not Public

    In response to Aish’s argument that the injunction violated his First Amendment rights, Judge Gill explained that the right to protest has limits.

    Gill pointed out that in 2000, the U.S. Supreme Court upheld a Colorado statute that banned anti-abortion protestors from coming up to patients or employees going in or out of clinics.

    Furthermore, Aish’s conduct was not entitled to special protection because it was public in nature, Judge Gill explained.

    “Aish was attempting to convince a private citizen to end her employment with a private organization, by making comments that instilled fear and trepidation,” Judge Gill wrote. “Aish’s efforts were almost entirely personal—and not public—in nature.”




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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