Wisconsin Supreme Court rules order against anti-abortion protester violated First Amendment

Wisconsin Supreme Court chambers. (Baylor Spears | Wisconsin Examiner)

The Wisconsin Supreme Court on Thursday unanimously ruled that an order against an anti-abortion protester barring him from coming close to a Planned Parenthood nurse violated the protester’s First Amendment rights.

The order was issued in 2020 by a Trempealeau County judge against Brian Aish, who was prevented from being near nurse Nancy Kindschy for four years. Kindschy sometimes worked at a small family planning clinic. Aish would regularly protest outside the clinic, but began focusing his comments against Kindschy, saying bad things would happen to her and her family if she didn’t quit her job.

According to court records, in October 2019, Aish told Kindschy, “it won’t be long before bad things will happen to you and your family” and “you could get killed by a drunk driver tonight.”

After the initial order was made in 2020, an appeals court upheld the decision in 2022, but the Supreme Court ruled in favor of Aish who argued the comments, made from a public sidewalk, were protected speech under the First Amendment.

While the case was pending, the U.S. Supreme Court issued a ruling that in order to prosecute someone for making violent threats, prosecutors must show “the defendant had some subjective understanding of the threatening nature of his statements” and that “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

The Court said in a majority opinion written by Justice Rebecca Dallet that Aish had “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

“Aish’s statements could not be true threats of violence because he disclaimed any desire for violence to befall Kindschy,” Justice Rebecca Bradley wrote in a separate opinion.

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