The Volokh Conspiracy

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Free Speech

Wisconsin S. Ct. Overturns Injunction Restricting Abortion Protester's Speech to Abortion Clinic Employee


From the majority opinion in Kindschy v. Aish, written by Justice Rebecca Dallet:

The circuit court heard two days of testimony, and made the following findings of fact:

  • 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.
  • The statements made by Aish on these dates were specifically directed toward Kindschy.

… [T]he circuit court issued a four-year injunction which prohibited Aish from speaking to Kindschy, or going to her residence "or any other premises temporarily occupied by [Kindschy]."

The majority concluded that "even if Aish's statements were true threats—an issue we do not decide—the harassment injunction still violates the First Amendment because the circuit court did not make the necessary finding that Aish 'consciously disregarded a substantial risk that his communications would be viewed as threatening violence,'" the standard required by Counterman v. Colorado. And the majority concluded the injunction couldn't be justified under strict scrutiny:

Kindschy claims several state interests are served by the injunction, including protecting her right to privacy, her right to free passage in going to and from work, and her right to be free from the fear of death or bodily harm. She further maintains that the injunction is narrowly tailored and burdens no more speech than is necessary because Aish is free to protest anywhere except locations she temporarily occupies.

Strict scrutiny is a high bar, and the injunction at issue here cannot clear it. Even if the interests Kindschy identified are compelling, an injunction still must be narrowly
tailored to protect those interests.

Here, 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. 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.

Justice Rebecca Grassl Bradley concurred in the judgment, and was joined by Chief Justice Annette Kingsland Ziegler; the concurrence argued that Aish's statements were not true threats, and thus wouldn't have punishable regardless of Aish's mental state. An excerpt (the opinion is quite long):

More importantly, none of the three statements suggested Aish or a co-conspirator would be the one to cause any harm to Kindschy. At most, the statements suggested unaffiliated third parties could cause Kindschy harm, like a "drunk driver." When Aish specified what kind of harm might befall Kindschy, it was a harm he would be extremely unlikely to cause and not something he would intend. If a statement does not expressly or implicitly suggest the speaker or coconspirator intends to commit the violence, the statement cannot be viewed as a true threat.

"[T]he statement, 'If you smoke cigarettes you will die of lung cancer,' is protected, even though its purpose is to scare you into quitting smoking. So is, 'If you mess around with Tom's girlfriend, he'll break your legs,' unless the speaker is sent by Tom." People who believe employees of abortion providers "are sinners who are going to be struck down by the hand of God should be able to voice their beliefs. The line is crossed, however, when the speaker suggests that he or his associates will help God by taking action down on Earth." Jennifer E. Rothman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol'y 283, 346 (2001). On their face, Aish's statements did not cross that line.

The concurrence goes on at some length to explain its reasoning, as does the majority; you can read the full opinions here.

Aish is represented by Joan M. Mannix (Thomas More Society) and Dudley A. Williams (Buting, Williams & Stilling S.C.).