Nancy Kindschy v. Brian Aish ( 2024 )

2024 WI 27SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1775
COMPLETE TITLE: Nancy Kindschy,
Petitioner-Respondent,
v.
Brian Aish,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 401 Wis. 2d 406, 973 N.W.2d 828(2022 – published)
OPINION FILED: June 27, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 1, 2022 and March 19, 2024
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Trempealeau
JUDGE: Rian W. Radtke
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, HAGEDORN, KAROFSKY, and PROTASIEWICZ,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed an opinion
concurring in the judgment, in which ZIEGLER, C.J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Dudley A. Williams, and Buting, Williams & Stilling
S.C., Milwaukee; Joan M. Mannix (pro hac vice), and Thomas More
Society, Chicago, IL. There were oral arguments by Joan M.
Mannix.
For the respondent-respondent, there were briefs filed by
Diane M. Welsh, Leslie A. Freehil and Pines Bach LLP, Madison.
There were oral arguments by Leslie A. Freehil and Diane M.
Welsh.
An amicus curiae brief was filed by Thomas C. Bellavia,
assistant attorney general, with whom on the brief was Joshua L.
Kaul, attorney general, on behalf of Wisconsin Department of
Justice.
An amicus curiae brief was filed by Andrew t. Dufresne,
Jacob A. Neeley, and Perkins Coie LLP, Madison; Arthur S.
Greenspan (pro hac vice), Evelyn Pang (pro hac vice), and
Perkins Coie LLP, New York, NY; Kathleen Wills (pro hac vice),
and Perkins Coie LLP, Washington, D.C, on behalf of End Domestic
Abuse Wisconsin.
2
2024 WI 27NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1775
(L.C. No. 2020CV40)
STATE OF WISCONSIN : IN SUPREME COURT
Nancy Kindschy,
Petitioner-Respondent,
FILED
v. JUN 27, 2024
Brian Aish, Samuel A. Christensen
Clerk of Supreme Court
Respondent-Appellant-Petitioner.
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, HAGEDORN, KAROFSKY, and PROTASIEWICZ,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed an opinion
concurring in the judgment, in which ZIEGLER, C.J., joined.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 REBECCA FRANK DALLET, J. 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.
No. 2020AP1775
¶2 We conclude that the injunction is a content-based
restriction on Aish's speech, and therefore complies with the
First Amendment only if: (1) Aish's statements were "true
threats" and he "consciously disregarded a substantial risk that
his [statements] would be viewed as threatening violence;" or
(2) the injunction satisfies strict scrutiny; that is, it is
narrowly tailored to achieve a compelling state interest. See
Counterman v. Colorado, 600 U.S. 66, 69 (2023); R.A.V. v. City
of St. Paul, 505 U.S. 377, 395 (1992). On the record before us,
we hold that the injunction fails to satisfy either of these two
standards. We therefore reverse the decision of the court of
appeals and remand to the circuit court with instructions to
vacate the injunction.1
I
¶3 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 staff to work elsewhere. Between 2014 and 2019, Aish
regularly protested at two clinics where Nancy Kindschy worked
as a nurse practitioner. Aish's conduct during that time
consisted mainly of holding up signs quoting Bible verses and
Our remedy, directing the circuit court to vacate the
1
injunction, is limited to the injunction at issue in this case,
and does not affect any injunction issued in any other case. On
remand, the circuit court need not dismiss the petition and is
free to conduct additional fact-finding to consider whether an
injunction premised on new facts complies with the First
Amendment.
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preaching his Christian and anti-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.
¶4 Kindschy petitioned for a harassment injunction under
Wis. Stat. § 813.125 (2019-20).2 That 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 acts
which harass or intimidate another person and which serve no
legitimate purpose." § 813.125(1)(am)4.b.
¶5 The circuit court3 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
2All subsequent references to the Wisconsin Statutes are to
the 2019-20 version.
3The Honorable Rian W. Radtke of the Trempeleau County
Circuit Court presided.
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No. 2020AP1775
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.
¶6 The circuit court further found that the testimony of
both Kindschy and Aish was credible. Kindschy, the circuit
court explained, was credible and genuine, although "her
recollection wasn't exactly clear on certain details." And Aish
was "very credible as to what happened [during] the incidents,
as well as his position on his religious beliefs." As the
circuit court explained, Aish was "trying to share the gospel,
and also has a stance of being against the things that Planned
Parenthood does, which includes abortions . . . ." According to
the circuit court, Aish's purpose in speaking to Kindschy was
"to get [her] to leave her employment or stop what she was
doing," but also, "a dual purpose here was to get Ms. Kindschy
to adopt . . . Mr. Aish's religious beliefs . . . ." The
circuit court said that persuading another person to adopt
different religious beliefs was "a legitimate purpose from
[Aish's] perspective, from his standpoint," and noted that
Aish's statements were made in the context of "convey[ing] a
message of repentance" and were "even coming from a place of
love or nonaggression." Nonetheless, the circuit court found
that Aish's statements were intimidating because they were the
"types of things [that] certainly would intimidate somebody
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because . . . they are statements that address somebody's loss
of life or their family members being hurt or harmed . . . ."
The circuit court further concluded that Aish's statements did
not serve a legitimate purpose because "to use intimidation or
scare tactics" to persuade someone to leave their employment or
adopt different religious beliefs is "not a legitimate purpose."
¶7 Following the hearing, the 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]." Aish appealed and the
court of appeals affirmed the issuance of the injunction. See
Kindschy v. Aish, 2022 WI App 17, 401 Wis. 2d 406, 973 N.W.2d
828.
¶8 We granted review. After we heard oral argument but
before we issued an opinion, the United States Supreme Court
decided Counterman v. Colorado, 600 U.S. 66 (2023), holding that
in a criminal prosecution for harassment premised on true
threats, the First Amendment requires the government to prove at
a minimum that the defendant "consciously disregarded a
substantial risk that his communications would be viewed as
threatening violence." Id. at 69. Subsequently, we ordered the
parties to submit supplemental briefing and heard a second round
of oral argument regarding the impact of Counterman on this
case.
II
¶9 When reviewing a harassment injunction, we uphold the
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No. 2020AP1775
circuit court's factual findings unless they are clearly
erroneous. See Bd. of Regents-UW Sys. v. Decker, 2014 WI 68,
¶20, 355 Wis. 2d 800, 850 N.W.2d 112. We review whether a
harassment injunction complies with the First Amendment de novo.
See id.III
¶10 The First Amendment protects the fundamental right to
free speech. See U.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." Ashcroft v. ACLU, 535 U.S.
564, 573 (2002) (internal quotation marks omitted).
¶11 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,"4 incitement to imminent lawless action,5 obscenity,6
defamation,7 or——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)).
4 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
5 Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).
6 Miller v. California, 413 U.S. 15 (1973).
7 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
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No. 2020AP1775
¶12 The harassment injunction in this case is a content-based restriction. That is
because it was issued based on the content of Aish's speech, namely his statements that "bad
things are going to start happening to [Kindschy] and [her] family," she "could get killed by a
drunk driver tonight," and that she "would be lucky if [she] got home safely."8 See City of
Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022) ("A regulation of speech
is facially content based under the First Amendment if it 'target[s] speech based on its
communicative content'——that is, if it 'applies to particular speech because of the topic
discussed or the idea or message expressed.'" (quoting Reed v. Town of Gilbert, 576 U.S. 155,
163 (2015))). Kindschy primarily argues that the injunction is nonetheless constitutional because
Aish's statements were true threats and were thus unprotected by the First Amendment.
Kindschy's secondary argument is that even if Aish's statements were not true threats, the
injunction is constitutional because it survives strict scrutiny.
¶13 We begin by evaluating Kindschy's true-threats argument. We conclude 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." Counterman, 600 U.S. at 69. We then explain why the
injunction cannot be upheld on alternate grounds because it does not satisfy strict scrutiny.
A
Kindschy contends that the injunction entered against Aish
8
is content neutral because it does not prevent him from
expressing certain ideas or opinions as long as they aren't
directed towards Kindschy. Kindschy misunderstands the
analysis. Restrictions on speech are content neutral if they
"are justified without reference to the content of the regulated
speech." See Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989). Here, the injunction is not content neutral because it
was justified based on the content of Aish's speech.
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No. 2020AP1775
¶14 "True threats are 'serious expression[s]' conveying
that a speaker means to 'commit an act of unlawful violence.'"
Id. at 74 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)).
In Counterman v. Colorado, the United States Supreme Court
explained that "a statement can count as [a true] threat based
solely on its objective content." Id. at 72. Thus, "[t]he
existence of a [true] threat depends not on 'the mental state of
the author,' but on 'what the statement conveys' to the person
on the other end." Id. at 74 (quoting Elonis v. United States,
575 U.S. 723, 733 (2015)).9 In other words, determining whether
a statement is a true threat does not require an inquiry into
the speaker's subjective mindset.
¶15 Although the test for whether a statement is a true
threat is objective, Counterman held that before a person may be
criminally convicted for making a true threat, the First
Amendment requires proof of the speaker's subjective intent.
See id. at 69. Specifically, the Court determined that in order
to avoid chilling protected, non-threatening expression, proof
that the speaker acted at least recklessly is required. See id.9Prior to Counterman, we followed a different standard for
determining whether a statement was a true threat. In State v.
Perkins, 2001 WI 46, ¶29, 243 Wis. 2d 141, 626 N.W.2d 762, we
held that "[a] true threat is a statement that a speaker would
reasonably foresee that a listener would reasonably interpret as
a serious expression of a purpose to inflict harm[.]" This
analysis, which considers the perspectives of both the listener
and the speaker, is inconsistent with the objective test for
true threats stated by the United States Supreme Court in
Counterman. Accordingly, Counterman abrogated Perkins on this
ground, and Counterman's test for true threats is binding.
8
No. 2020AP1775
at 78-79. Recklessness in this context means that the speaker
"consciously disregarded a substantial risk that his
communications would be viewed as threatening violence." Id. at
79.
1
¶16 Kindschy claims that because she sought a civil
harassment injunction against Aish, Counterman's requirement
that the government prove a defendant's subjective mental state
does not apply. In support, Kindschy makes two arguments.
First, she contends that Counterman did not explicitly extend
its holding beyond the criminal prosecution at issue in that
case. Second, Kindschy asserts that unlike the Colorado statute
at issue in Counterman, the intent-to-harass requirement in Wis.
Stat. § 813.125 always satisfies Counterman's recklessness
standard.
¶17 We find neither of Kindschy's arguments persuasive.10
To begin with, nothing on the face of the Court's decision
limits its holding to the criminal context.11 On the contrary,
Some courts have, with little or no analysis, declined to
10
apply Counterman in the civil context. See Sealed Plaintiff 1
v. Patriot Front, No. 22-cv-670, 2024 WL 1395477, at *29 (E.D.
Va. Mar. 31, 2024); Boquist v. Courtney, 682 F. Supp. 3d 957,
969 n.10 (D. Or. July 17, 2023). These courts summarily
dismissed Counterman's relevance because no criminal statute was
at issue in the case. But as we explain, although Counterman
involved a criminal prosecution, nothing in the Court's analysis
suggests its holding is limited to the criminal context.
The language the Supreme Court used to describe liability
11
strengthens this point. The Court repeatedly used the word
"liability" by itself, not "criminal liability" or "criminal
punishment." See, e.g., Counterman, 600 U.S. at 75, 79 n.5.
9
No. 2020AP1775
two aspects of the decision indicate that it also applies to a
civil harassment injunction premised on true threats. First,
the Court relied upon the law of defamation and incitement,
which includes both civil and criminal liability. The Court
emphasized that the recklessness rule it was adopting "fits with
the analysis in [the Court's] defamation decisions," which also
"adopted a recklessness rule, applicable in both civil and
criminal contexts[.]" Counterman, 600 U.S. at 80 (emphasis
added). And the Court explained that the more stringent intent
standard required in civil and criminal incitement cases
"compel[led] the use of a [recklessness] standard" in true
threats cases. Id. at 82. By relying on these civil claims,
the Supreme Court implied that the same standard for criminal
prosecutions also applies to civil harassment injunctions based
on true threats.
¶18 Second, the Court's broader reasoning is as applicable
to civil harassment injunctions based on true threats as it is
to criminal prosecutions. The Court's animating concern in
Counterman was that applying an objective standard to true-
threat claims might chill otherwise protected speech. See id.
at 75. As the Court said, "A speaker may be unsure about the
side of a line on which his speech falls. Or he may worry that
the legal system will err, and count speech that is permissible
as instead not. Or he may simply be concerned about the expense
of becoming entangled in the legal system." Id. Those concerns
are just as salient in the context of a civil harassment
injunction as they are in the criminal context. Although the
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No. 2020AP1775
stakes may be higher in a criminal prosecution, the threat of a
civil harassment injunction may be no less chilling of protected
speech.
¶19 As to her second argument, Kindschy points to the
requirement in § 813.125 that the circuit court find the
respondent "engaged in harassment with intent to harass or
intimidate the petitioner." § 813.125(4)(a)3. (emphasis added).
A finding of intent to harass or intimidate, she argues, will
always satisfy Counterman's recklessness standard because intent
is a higher bar than recklessness.
¶20 This argument conflates two distinct findings: the
finding that the speaker intended to harass or intimidate under
§ 813.125 and the finding that the speaker intentionally or
recklessly uttered a true threat under the First Amendment. We
have previously interpreted what it means to "harass" or
"intimidate" under § 813.125, and neither is synonymous with a
true threat. To harass under the statute is to "worry and
impede by repeated attacks, to vex, trouble or annoy continually
or chronically, to plague, bedevil or badger." Bachowski v.
Salamone, 139 Wis. 2d 397, 407, 407 N.W.2d 533 (1987) (citation
omitted). To intimidate under the statute is to "'make timid or
fearful.'" Id. (quoted source omitted). In contrast, a true
threat under the First Amendment is an expression "conveying
that a speaker means to 'commit an act of unlawful violence.'"
Counterman, 600 U.S. at 74 (quoting Black, 538 U.S. at 359).
Because the terms have distinct meanings, meeting the standard
for one does not implicate the standard for the other. In other
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No. 2020AP1775
words, a court can find one intended to harass or intimidate
another without necessarily finding someone uttered a true
threat at all, let alone uttered one intentionally or
recklessly. For that reason, the intent standard in § 813.125
cannot serve as a substitute for Counterman's recklessness
standard.
¶21 In sum, we hold that Counterman applies to civil
harassment injunctions premised on true threats. Thus, before
issuing such an injunction, a circuit court must find that the
respondent "consciously disregarded a substantial risk that his
communications would be viewed as threatening violence." Id. at
69.
2
¶22 In this case, the circuit court's harassment
injunction was issued before Counterman was decided. The
circuit court therefore did not evaluate whether Aish's
statements were true threats, or whether he "consciously
disregarded a substantial risk that his communications would be
viewed as threatening violence." Id. Because the circuit court
failed to make clear findings regarding Aish's subjective mental
state as it relates to his statements to Kindschy, we need not
decide whether Aish's statements were true threats. Whether
they were true threats or not, the injunction cannot be
justified on true-threats grounds. See id.
B
¶23 Kindschy alternatively argues that the injunction
against Aish is nonetheless constitutional because it survives
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No. 2020AP1775
strict scrutiny. As mentioned previously, content-based
restrictions on protected speech are constitutionally
permissible if they are "necessary to serve a compelling state
interest and . . . narrowly drawn to achieve that end." Baron,
318 Wis. 2d 60, ¶45. 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.
See Hill v. Colorado, 530 U.S. 703, 716-717 (2000); Black, 538
U.S. at 360. 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.
¶24 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. Baron, 318 Wis. 2d 60,
¶45. 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.
III
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No. 2020AP1775
¶25 We conclude that Counterman applies to civil
harassment injunctions premised on true threats. Even if Aish's
speech fell into this unprotected category of speech, the
circuit court did not find that he "consciously disregarded a
substantial risk that his communications would be viewed as
threatening violence." Counterman, 600 U.S. at 69. Therefore,
we conclude that the injunction is not permissible on this
basis. Additionally, we determine the injunction is a content-
based restriction on Aish's speech and that it fails to satisfy
strict scrutiny because it is not narrowly tailored to protect a
compelling state interest. Accordingly, we conclude that the
injunction violates the First Amendment, and remand to the
circuit court with instructions to vacate the injunction.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
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¶26 REBECCA GRASSL BRADLEY, J. (concurring in the
judgment).
[I]f Men are to be precluded from offering their
sentiments on a matter, which may involve the most
serious and alarming consequences, that can invite the
consideration of Mankind; reason is of no use to us——
the freedom of Speech may be taken away——and, dumb &
silent we may be led, like sheep, to the Slaughter.
From George Washington to Officers of the Army, 15 March 1783.1
¶27 Brian Aish protested regularly at a Planned Parenthood
clinic in Blair, Wisconsin. On multiple occasions, Aish made
statements directed at a Planned Parenthood employee, Nancy
Kindschy, as she left the Planned Parenthood facility. Based on
those statements, the circuit court ordered Aish to avoid places
temporarily occupied by Kindschy, effectively enjoining Aish
from protesting at the Blair Planned Parenthood facility for
four years. Aish contends the injunction violates the First
Amendment. It does.
¶28 For the injunction to clear the First Amendment, the
majority holds it must either proscribe a true threat or the
injunction must survive strict scrutiny. The majority does not
decide whether Aish's comments were true threats; instead, it
holds the injunction violates the First Amendment because the
circuit court did not make the required mens rea finding under
Counterman v. Colorado, 600 U.S. 66 (2023), and the injunction
fails strict scrutiny. I agree. But the injunction against
Aish violates the First Amendment——and therefore must be
https://founders.archives.gov/documents/Washington/99-01-
1
02-10840.
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vacated——for a more fundamental reason: 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.
I
¶29 Kindschy worked as a nurse practitioner at the Planned
Parenthood facility in Blair, Wisconsin.2 The facility was open
only on Tuesdays from 9:00 a.m. to 5:00 p.m. Aish protested at
the facility nearly every Tuesday, between 12:00 p.m. and
closing time. Aish would share his religious views and his
views on Planned Parenthood and abortion with those entering and
leaving the facility.
¶30 On March 10, 2020, Kindschy petitioned for a
harassment injunction against Aish under Wis. Stat. § 813.125.
To grant an injunction under § 813.125, a circuit court must
conclude "reasonable grounds [exist] to believe that the
respondent has engaged in harassment with intent to harass or
intimidate the petitioner." § 813.125(4)(a)3. The statute
defines "harassment," as relevant in this case, as "[e]ngaging
in a course of conduct or repeatedly committing acts which
harass or intimidate another person and which serve no
legitimate purpose."3 § 813.125(1)(am)4.b. The circuit court
held hearings on July 13 and September 9, 2020.
2 Kindschy has since retired, according to her counsel.
"Harassment" is statutorily defined to also include
3
"[s]triking, shoving, kicking or otherwise subjecting another
person to physical contact; engaging in an act that would
constitute abuse under s. 48.02 (1), sexual assault under s.
940.225, or stalking under s. 940.32; or attempting or
2
No. 2020AP1775.rgb
¶31 Kindschy testified that on October 8, 2019, as she
left the Blair Planned Parenthood facility, Aish stood on the
sidewalk three to four feet away from her vehicle holding a
sign. Aish looked at Kindschy and said, "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." According to Kindschy, Aish
was "very aggressive," "loud," and "very stern" during this
interaction. She testified his statements made her fearful.
According to Kindschy, Aish had never before made comments about
her possibly being killed or bad things happening to her family.
¶32 Kindschy testified that on October 15, 2019, as she
left the clinic, Aish received a ticket from a police officer.4
Aish told her she has blood on her hands. According to
Kindschy, Aish was "cold, angry, and loud." Kindschy also
testified that on October 29, 2019, as she drove out of the
facility's parking area, Aish walked from the sidewalk onto the
road and waived an anti-abortion sign close to her vehicle.
¶33 The next relevant interaction between Kindschy and
Aish occurred on February 18, 2020. Kindschy testified Aish
stood on the sidewalk a few feet from her vehicle and said,
"Ma'am, you have time to repent. If I recall, you are
Lutheran." He told her she has blood on her hands, called her a
liar, and asked, "Do you know who plays the game of lies, ma'am?
threatening to do the same." Wis. Stat. § 813.125(1)(am)4.a.
Kindschy's testimony does not explain why Aish received a
4
ticket.
3
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It's [S]atan. Satan will come to judge you." He also said she
would be "lucky if [she] got home safely and that [she] could
possibly be killed and that bad things are going to start
happening to [her] family." According to Kindschy, she felt
threatened by these words. Aish made the comments to her
directly, and according to Kindschy, he was "very loud, very
stern, and he was very agitated."
¶34 Kindschy recorded this interaction, and the recording
was submitted into evidence during the hearing. The recording
shows Aish was not loud, stern, or agitated. He stood on the
sidewalk, several feet away from Kindschy. He held a sign that
said, "Those who love me, obey me! Jesus." Aish said to
Kindschy, "You play the game of the lies ma'am. You know who
the father of all lies is?" He also remarked, "You're a
professing Christian. If I remember right, you are Lutheran
aren't you?" He then stated, "You understand the father of all
lies is Satan, not God. You mock but he'll be mocking on the
day of your judgment." As Kindschy entered the front driver's
side of her vehicle, Aish can be heard saying, "I'll pray you
guys make it home safely for another day or two so you turn to
Christ and repent. You still have time." Kindschy testified
the recording reflected how Aish behaved during all relevant
interactions.
¶35 The final encounter occurred a few days after the
recorded interaction, on February 25, 2020. Kindschy testified
Aish said she lied about him to the authorities, she still has
time to repent, and she would "be lucky if [she is] able to make
4
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it home safely." She testified she felt threatened by being
called a liar. Aish was "very loud," "very stern," and "very
agitated." Kindschy acknowledged Aish never touched her or her
vehicle and remained on the sidewalk during the relevant
encounters.
¶36 Although Aish directed specific comments at Kindschy,
she testified Aish made what Kindschy characterized as harassing
comments to other staff and patients. For example, Aish told
the building's security guard, "they're training you to be a
death court, they're training you to have a hardened heart." To
a new medical assistant, he said, "They're training you to have
a hardened heart; that's Planned Parenthood's way." Aish told
patients the clinic condones abortion and Planned Parenthood is
a "murder mill."5
5 Two center managers for Planned Parenthood also testified.
Shonda Racine confirmed that on October 8, 2019, Aish told
Kindschy she has "blood on [her] hands" and "[b]ad things are
going to start happening to you and your family; you need to
repent; I cannot help you." Racine said she thought these
statements were threats. She testified that on October 15,
2019, Aish told Kindschy she has "blood on [her] hands." On
October 29, 2019, Aish again said to Kindschy, "You need to
repent, you have blood on your hands." Racine testified that on
each one of these dates, Aish was "aggressive," "[l]oud," and
"angry." He was "yelling and screaming." According to Racine,
Aish never touched her or Kindschy. Racine also testified Aish
would protest throughout the day when he was at the Blair
Planned Parenthood facility, sharing his position with those
around him. Racine also watched the video of the February 18,
2020, incident. According to her, Aish was louder during the
October, 2019 incidents she witnessed.
5
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¶37 Aish also testified. He described his Christian
beliefs and explained the purpose of his protests was to "share
the gospel with young women murdering their children." He
explained he would go to the Blair Planned Parenthood facility,
among other places, to "share the gospel" and "warn those going
in there that if they're going to even consider torturing and
murdering their child for convenience or choice, they're being
misled and they're going to be accountable because they're
shedding innocent blood of a child . . . ." By "held
accountable," Aish meant by God. He testified he would stay
until the Blair Planned Parenthood facility closed to try to
convince the last patients not to be "misled" and to share his
religious views with them. "I want them to turn away from their
sin and because 7,000 people are dying every day in this
country, we don't know if we're going to have another
day . . . so we try to warn them because they may not make it to
next week, with DUI accidents, murder or criminal behavior and
all of that."
¶38 Aish denied targeting Kindschy in particular, but said
he has known her longer than any of the other employees. He
shared his message with nearly everyone. Aish expressed that
his protests came from a place of "love." "We're there because
we're trying to warn them and trying to get them to repent and
Jess Beranek testified Aish directed his comments to
Kindschy on February 18, 2020. Beranek also testified Kindschy
appeared bothered and scared after the incident. According to
Beranek, Aish became more aggressive after the location became a
Planned Parenthood facility. It is unclear from the record on
what date Planned Parenthood began operating the facility.
6
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turn away from their sinful lifestyle, especially doing
something so heinous as being involved with Planned Parenthood."
Aish stated he had no intention of harming Kindschy. Telling
Kindschy she could be killed by a drunk driver was, according to
Aish, part of his religious message: "I'm warning them because
7,000 people die in this country every day and most of them do
not know the gospel and we don't know if we'll have a tomorrow.
So God warns us, don't assume you're going to have a tomorrow,
worry about today."
¶39 While the circuit court found all of the witnesses
credible, it noted Kindschy sometimes blurred days together and
sometimes "wasn't exactly clear on certain details." Aish,
according to the circuit court, was "very credible as to what
happened on the incidents, as well as his positions on his
religious beliefs."
¶40 Ultimately, the circuit court issued an injunction
against Aish. The court based the injunction on statements made
by Aish on three occasions, which the court found were directed
at Kindschy specifically: (1) October 8, 2019 ("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."); (2) February 18, 2020
("I'll pray you guys make it home safely for another day or two
so you turn to Christ and repent. You still have time."); and
(3) February 25, 2020 (Kindschy would "be lucky if [she is] able
to make it home safely."). The circuit court found that Aish
was not angry or aggressive while making these statements;
7
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rather, based on the video footage of the February 18, 2020,
incident, the court found Aish was merely "passionate about his
beliefs." Nevertheless, the circuit court said such comments
would be intimidating "even in the context that is presented
here of trying to convey a message of repentance." Although
Aish was "trying to share the gospel" and change the behavior of
those working at Planned Parenthood, coming from a "place of
love or nonaggression," the circuit court found Aish's
statements "would intimidate somebody" because the statements
"address somebody's loss of life."
¶41 The circuit court also determined Aish's conduct
served no legitimate purpose. The court found Aish wanted to
"scare" Kindschy into leaving Planned Parenthood's employ and
adopting his religious beliefs. According to the court, Aish's
"scare tactics" were not a legitimate method to achieve his
goals. Although the court noted the importance of Aish's First
Amendment right to protest, the circuit court ultimately
determined Kindschy should not "have to even think about that
she might get killed on her way home or bad things are going to
happen to her and her family." The circuit court ordered Aish
to cease harassing Kindschy; to avoid her residence or any
premises temporarily occupied by her; and to avoid all
communication with her.
II
¶42 Freedom of speech is a principal pillar of a free
government; when this support is taken away, the
constitution of a free society is dissolved, and
tyranny is erected on its ruins.
8
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Benjamin Franklin, On Freedom of Speech and the Press, Pa.
Gazette, Nov. 1737, reprinted in 2 The Works of Benjamin
Franklin 285, 285 (Boston, Hilliard, Gray & Co. 1840).
¶43 The First Amendment reads, in relevant part, "Congress
shall make no law . . . abridging the freedom of speech."6 U.S.
Const. amend. I. With few exceptions, the state may not
prohibit or restrict speech based on its content. "The hallmark
of the protection of free speech is to allow 'free trade in
ideas'——even ideas that the overwhelming majority of people
might find distasteful or discomforting." Virginia v. Black,
538 U.S. 343, 358 (2003) (quoting Abrams v. United States, 250
U.S. 616, 630 (1919) (Holmes, J., dissenting)). "Content-based
regulations [of speech] are presumptively invalid" under the
First Amendment. R.A.V. v. City of St. Paul, 505 U.S. 377, 382
(1992). Only "well-defined" and "narrowly limited" categories
of speech fall beyond the historical protections of the First
Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72
(1942); R.A.V., 505 U.S. at 382-83. "These 'historic and
traditional categories long familiar to the bar,'" United States
v. Stevens, 559 U.S. 460, 468 (2010) (quoting Simon & Schuster,
Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105,
127 (1991) (Kennedy, J., concurring in the judgment)), include
"true threats." Black, 538 U.S. at 359-60; Watts v. United
States, 394 U.S. 705, 707-08 (1969) (per curiam).
6 The United States Supreme Court has held that the
Fourteenth Amendment incorporates the First Amendment against
the states. Gitlow v. New York, 268 U.S. 652 (1925).
9
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¶44 Not all statements that stoke fear in listeners are
true threats. "True threats are 'serious expression[s]'
conveying that a speaker means to 'commit an act of unlawful
violence.'" Counterman, 600 U.S. at 74 (alteration in original)
(quoting Black, 538 U.S. at 359). Threats must be "real" for
the government to proscribe them. Elonis v. United States, 575
U.S. 723, 747 (2015) (Alito, J., concurring in part and
dissenting in part); State v. Perkins, 2001 WI 46, ¶17, 243
Wis. 2d 141, 626 N.W.2d 762 ("[S]ome threatening words are
protected speech under the First Amendment."). True threats——as
distinguished from protected expressions——"convey a real
possibility that violence will follow." Counterman, 600 U.S. at
74 (citing Watts, 394 U.S. at 708).
¶45 To constitute a true threat, the communication must
express, explicitly or implicitly, that the speaker or a co-
conspirator intends to inflict imminent or future injury on the
victim. Id.; New York ex rel. Spitzer v. Operation Rescue
Nat'l, 273 F.3d 184, 196 (2d Cir. 2001); United States v. White,
670 F.3d 498, 513-14 (4th Cir. 2012); Planned Parenthood of
Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290
F.3d 1058, 1076 (9th Cir. 2002) (en banc); United States v.
Cassel, 408 F.3d 622, 636-37 (9th Cir. 2005); United States v.
Bagdasarian, 652 F.3d 1113, 1119 (9th Cir. 2011); United States
v. Viefhaus, 168 F.3d 392, 396 (10th Cir. 1999); United States
v. Wheeler, 776 F.3d 736, 746 (10th Cir. 2015); United States v.
Dillard, 795 F.3d 1191, 1201 (10th Cir. 2015). This element is
essential. Speech cannot be punished or restricted on the
10
No. 2020AP1775.rgb
ground that a listener "fears a generalized harm because of what
the speaker has suggested." Matthew G. T. Martin, True Threats,
Militant Activists, and the First Amendment, 82 N.C. L. Rev.
280, 315 (2003). If the communication does not convey the
speaker or a co-conspirator will enact violence on the victim,
"then understanding the communication as a threat is
'objectively less reasonable' and the perceptions and fears of
the listener are devoid of a sufficiently rational basis." Id.
at 316 (footnotes omitted).
¶46 Violence must be threatened, not "merely predicted,"
hoped for, or endorsed. Cassel, 408 F.3d at 636-37;
Bagdasarian, 652 F.3d at 1119; United States v. Lincoln, 403
F.3d 703, 707 (9th Cir. 2005); State v. Carroll, 196 A.3d 106,
119 (N.J. Super. Ct. App. Div. 2018). The standard for
assessing a communication is an objective one; a statement is a
true threat only if a reasonable listener,7 who is familiar with
the full context, would understand the statement as conveying
the speaker or a co-conspirator intends to inflict unlawful
violence on a person or group of people. See, e.g., Counterman,
600 U.S. at 74 (quoting Elonis, 575 U.S. at 733) ("The existence
of a threat depends . . . on 'what the statement conveys' to the
"The listener might be the victim of a threat or another
7
recipient of the communication." State v. Perkins, 2001 WI 46,
¶25 n.15, 243 Wis. 2d 141, 626 N.W.2d 762. Reasonable listeners
are not "omniscient persons, aware of every fact potentially
existing at the time of the speech. The . . . 'reasonable
listener' [is] limited in knowledge to the facts readily
available to the . . . actual listener at the time of the speech
at issue." State v. Douglas D., 2001 WI 47, ¶34 n.12, 243
Wis. 2d 204, 626 N.W.2d 725.
11
No. 2020AP1775.rgb
person on the other end."). "The speaker need not actually
intend to carry out the threat," Black, 538 U.S. at 359-60; nor
is it "necessary that the speaker have the ability to carry out
the threat."8 Perkins, 243 Wis. 2d 141, ¶29.
¶47 True threats are not protected by the First Amendment
for a host of reasons: The fear such threats inflict on
individuals and society,9 the "disruption that fear engenders,"
and the possibility of preventing violence that may follow a
threat. R.A.V., 505 U.S. at 388; see also Rogers v. United
States, 422 U.S. 35, 47 (1975) (Marshall, J., concurring) ("Like
a threat to blow up a building, a serious threat on the
President's life is enormously disruptive and involves
substantial costs to the Government."). Threats of violence can
paralyze the victims of crime from taking action. As Justice
Samuel Alito has noted, "[t]hreats of violence and intimidation
are among the most favored weapons of domestic abusers . . . ."
Elonis, 575 U.S. at 748 (Alito, J., concurring in part and
dissenting in part); see Wittig v. Hoffart, 2005 WI App 198, 287
Wis. 2d 353, 704 N.W.2d 415.
8A speaker's known inability to carry out the alleged
threat may make it less reasonable to believe the statement is a
serious expression of intent to enact violence. See State v.
Krijger, 97 A.3d 946, 960 n.11 (Conn. 2014).
9Jennifer E. Rothman, Freedom of Speech and True Threats,
25 Harv. J.L. & Pub. Pol'y 283, 291 (2001) ("The psychological
fear created by a threat to oneself or one's family or the
threat of serious property damage . . . is unquestionably a
disturbing experience. People who are forced to live under the
shadow of such threats suffer a myriad of psychological and
health problems including nightmares, heart problems, inability
to work, loss of appetite, and insomnia.").
12
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¶48 Threats of violence undermine one of the central
values animating the First Amendment: deliberative democratic
decision making. Self-government requires a robust, uninhibited
exchange of viewpoints. See Terminiello v. City of Chicago, 337
U.S. 1, 4 (1949). Threats of violence "silence the speech of
others who become afraid to speak out," Counterman, 600 U.S. at
89 (Sotomayor, J., concurring in part and concurring in the
judgment), rendering the "market place of ideas,"10 upon which
our democracy relies, less populous. State v. Taylor, 866
S.E.2d 740, ¶67 (N.C. 2021) (Earls, J., concurring in part,
dissenting in part) (quoted source omitted) (alteration in
original) ("If the cost of participating in public life is to be
bombarded with serious threats of violence towards one's self
and family, many people will choose to forego contributing their
voices to the 'free exchange [that] facilitates an informed
public opinion, which, when transmitted to lawmakers, helps
produce laws that reflect the People's will.'"); Planned
Parenthood, 290 F.3d at 1086 (noting true threats "turn[] the
First Amendment on its head" by shutting the victims of threats
out of public debate through fear). "[A] society which is
forced to settle political disputes in the looming shadow of
violence . . . cannot function as a self-governing democracy."
Taylor, 866 S.E.2d 740, ¶69 (Earls, J., concurring in part,
dissenting in part).
United States v. Rumely, 345 U.S. 41, 56 (1953) (Douglas,
10
J., concurring); Abrams v. United States, 250 U.S. 616, 630
(1919) (Holmes, J., dissenting) ("free trade in ideas").
13
No. 2020AP1775.rgb
¶49 At the same time, "First Amendment vigilance is
especially important when speech is disturbing, frightening, or
painful, because the undesirability of such speech will place a
heavy thumb in favor of silencing it" whether the First
Amendment protects such speech or not. Counterman, 600 U.S. at
87 (Sotomayor, J., concurring in part and concurring in the
judgment). Political speech is often caustic, heated, and
outrageous, tempting would-be censors to recast political speech
as threats of violence. See Operation Rescue, 273 F.3d at 195-
96 ("As much as we might idealize the antiseptic, rational
exchange of views, expressions of anger, outrage or indignation
nonetheless play an indispensable role in the dynamic public
exchange safeguarded by the First Amendment."); Martin, supra,
at 296 (noting "much effective political rhetoric, as well as
philosophical, religious, and motivational rhetoric, is meant to
engender fear as a means to promote a paradigm shift").
¶50 The First Amendment is a bulwark against the
weaponization of the justice system to squelch or even
criminalize disfavored political voices. Courts are duty bound
to protect the free exchange of thought on which our republic
depends. At the same time, courts ought not "lend a cloak of
legitimacy to methods of achieving political change that are
antithetical to everything the First Amendment stands for."
Taylor, 866 S.E.2d 740, ¶70 (Earls, J., concurring in part,
dissenting in part).
III
14
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¶51 Whether a statement constitutes a true threat beyond
the protection of the First Amendment is a question of fact
usually left for the factfinder to decide, unless a statement is
"unquestionably" protected by the First Amendment, such that no
reasonable factfinder could find the statement is a true threat.
See State v. Douglas D., 2001 WI 47, ¶33, 243 Wis. 2d 204, 626
N.W.2d 725; accord Perkins, 243 Wis. 2d 141, ¶48; Watts, 394
U.S. at 708; United States v. Clemens, 738 F.3d 1, 13 (1st Cir.
2013); United States v. Malik, 16 F.3d 45, 51 (2d Cir. 1994)
(citing United States v. Carrier, 672 F.2d 300, 306 (2d Cir.
1982)); United States v. Stock, 728 F.3d 287, 298 (3d Cir.
2013); United States v. Landham, 251 F.3d 1072, 1083 (6th Cir.
2001); United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008);
Brandy v. City of St. Louis, 75 F.4th 908, 915 (8th Cir. 2023);
United States v. Merrill, 746 F.2d 458, 462-63 (9th Cir. 1984);
Wheeler, 776 F.3d at 742.11 The factfinder must consider the
totality of the circumstances and "all relevant factors that
might affect how the statement could reasonably be interpreted."
Perkins, 243 Wis. 2d 141, ¶¶29, 31. In this case, as the
majority notes, majority op., ¶22, the circuit court did not
consider whether Aish's statements were true threats and made no
findings on that issue.12 Given the findings already made by the
11But see United States v. Bly, 510 F.3d 453, 457-58 (4th
Cir. 2007) (citing Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 506–11 (1984)) ("Whether a written communication
contains either constitutionally protected 'political hyperbole'
or an unprotected 'true threat' is a question of law and fact
that we review de novo.").
12The lack of circuit court findings regarding true threats
suffices to vacate the circuit court's injunction, and this
15
No. 2020AP1775.rgb
circuit court after an evidentiary hearing, no reasonable
factfinder could find Aish's statements were true threats.13
IV
¶52 A true threats analysis begins with an examination of
the statements themselves. See State v. Krijger, 97 A.3d 946,
958 (Conn. 2014). Aish made three statements to Kindschy on
which the circuit court based the injunction:
 October 8, 2019: "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."
 February 18, 2020: "I'll pray you guys make it home
safely for another day or two so you turn to Christ
and repent. You still have time."
court could have done so at least a year ago. Successive rounds
of supplemental briefing and oral argument ordered by the
majority were unnecessary to decide this case, and the delay
only prolonged the impermissible restraint on Aish's liberty.
See Kindschy v. Aish, No. 2020AP1775, unpublished order (Wis.
July 28, 2023) (Rebecca Grassl Bradley, J., dissenting);
Kindschy v. Aish, No. 2020AP1775, unpublished order (Wis. Feb.
5, 2024) (Rebecca Grassl Bradley, J., dissenting).
13"Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses."
Wis. Stat. § 805.17(2). "A circuit court's findings of fact are
clearly erroneous when the finding is against the great weight
and clear preponderance of the evidence. Under the clearly
erroneous standard, 'even though the evidence would permit a
contrary finding, findings of fact will be affirmed on appeal as
long as the evidence would permit a reasonable person to make
the same finding.'" Royster-Clark, Inc. v. Olsen's Mill, Inc.,
2006 WI 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530 (internal
citations and quoted source omitted); Phelps v. Physicians Ins.
Co. of Wis., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615.
16
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 February 25, 2020: Aish said that Kindschy lied about
him to the authorities, she still has time to repent,
and she would "be lucky if [she is] able to make it
home safely."
On their face, Aish's statements cannot be interpreted as true
threats.
¶53 Aish uttered words of caution or warnings, not threats
of violence. The statement, "Bad things are going to start
happening to you and your family," does not overtly refer to
violence. "Bad things" could include violence, but they could
just as easily include other undesirable outcomes, such as the
loss of a job.
¶54 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 co-
conspirator 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." Planned Parenthood
of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 244
17
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F.3d 1007, 1015 n.8 (9th Cir. 2001), aff'd in part, vacated and
remanded in part, 290 F.3d 1058. 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.
¶55 Aish's statements could not be true threats of
violence because he disclaimed any desire for violence to befall
Kindschy. Lincoln, 403 F.3d at 707 (holding a letter could not
be a true threat because the author "disassociated himself from
any violent action"); In re R.D., 464 P.3d 717, ¶53 (Colo. 2020)
(A true threats inquiry "should [] examine whether the speaker
said or did anything to undermine the credibility of the
[alleged] threat."); cf. Krijger, 97 A.3d at 961 (speaker
apologizing immediately after saying the listener would get into
a car accident, just as his son did years earlier, undercut the
threatening undertone of the statement). For example, Aish said
he would "pray" Kindschy made it home safely so that she could
"turn to Christ and repent." Aish thereby expressed he did not
want Kindschy to get hurt. Instead, he hoped she would adopt
his religious views and leave her job at Planned Parenthood. In
other statements, Aish again implored Kindschy to "repent" and
only then suggested a car accident could occur. If the harm
Aish predicted happened to Kindschy, she could not repent;
18
No. 2020AP1775.rgb
Kindschy's repentance, not harm to her, was Aish's stated
objective. None of Aish's statements conveyed an intent to
enact violence on Kindschy.
¶56 A true threat analysis does not end with what a
statement means on its face, however. As with all other forms
of communication, context is everything. See Perkins, 243
Wis. 2d 141, ¶¶29, 31; Douglas D., 243 Wis. 2d 204, ¶¶38-39.
The Sixth Circuit explained:
A reasonable listener understands that a gangster
growling "I'd like to sew your mouth shut" to a
recalcitrant debtor carries a different connotation
from the impression left when a candidate uses those
same words during a political debate. And a
reasonable listener knows that the words "I'll tear
your head off" mean something different when uttered
by a professional football player from when uttered by
a serial killer.
United States v. Jeffries, 692 F.3d 473, 480 (6th Cir. 2012). A
true threat may "blossom[]" or wither away when context is
considered. Lincoln, 403 F.3d at 704; In re S.W., 45 A.3d 151,
156 (D.C. 2012) ("A threat is more than language in a vacuum.
It is not always reasonable——and sometimes it is patently
irrational——to take every pronouncement at face value."); Fogel
v. Collins, 531 F.3d 824, 832 (9th Cir. 2008) (speech may not be
a true threat in context even if "taken literally"). A burning
cross placed on one's lawn does not literally say, "I am going
to kill you." But given the grotesque history of cross burning
in the United States, the message is unmistakable to the
recipient. See generally, Black, 538 U.S. 343.
¶57 An expression that in one context may be a warning
could be a veiled threat of violence in another——"you better
19
No. 2020AP1775.rgb
watch your back," for example. State v. Taveras, 271 A.3d 123,
131 (Conn. 2022). Context is how we distinguish warnings from
veiled threats. "You've got to give him the money or he'll kill
you" is likely a warning if coming from one's wife, and a threat
if coming from a henchman. Given the relevant context, Aish's
statements can only be understood as warnings to Kindschy that
she needed to repent before harm befell her. From Aish's point
of view, Kindschy engaged in sinful conduct, and should repent
and cease such conduct or risk God's condemnation. Some might
be disturbed by Aish's comments, but they were not true threats.
¶58 The environment in which speech is uttered and the
events leading up to a statement are valid contextual
considerations in any true threats inquiry. Jeffries, 692 F.3d
at 482; State v. Carroll, 196 A.3d. at 117. In this case,
Aish's comments were made in the context of his ongoing and
religiously inspired protests at the Blair Planned Parenthood
facility. The testimony shows Aish visited the grounds outside
the facility regularly to protest Planned Parenthood and
abortion, and he shared his religious message with nearly
everyone. Although true threats can, of course, be made at
protests, when statements are made as a part of an ongoing
protest, a reasonable listener is more likely to see the
statement as charged political or religious rhetoric, not a
sincere threat of violence. See Watts, 394 U.S. at 708. In
this case, Aish's protests took place on the sidewalk outside of
the Planned Parenthood facility——the traditional forum for
sharing ideas. See Frisby v. Schultz, 487 U.S. 474, 480 (1988)
20
No. 2020AP1775.rgb
(quoted source omitted) (alteration in original) ("'[T]ime out
of mind' public streets and sidewalks have been used for public
assembly and debate . . . .").
¶59 The meaning of a statement can change depending on the
tone and demeanor of the speaker. State v. A.S., 2001 WI 48,
¶24, 243 Wis. 2d 173, 626 N.W.2d 712; United States v. Alaboud,
347 F.3d 1293, 1297 (11th Cir. 2003); United States v. Ivers,
967 F.3d 709, 719 (8th Cir. 2020). "I'm going to kill you" said
with a smile and laugh is unlikely a true threat; in contrast,
"I'm going to kill you" said in angry, aggressive, or rage-
filled tones, is more likely to be a true threat. Kindschy
contends Aish was loud, angry, and aggressive when he made his
statements. The recording that captured the events of February
18, 2020, belies her account. The recording reveals Aish was
not loud, angry, or aggressive; he spoke with a normal tone and
demeanor. Indeed, the circuit court found that Aish was not
angry or aggressive during their interactions, but "passionate
about his beliefs." Based on this record, it is far more
reasonable to understand Aish's statements as warnings grounded
in his religious beliefs rather than veiled threats.
¶60 The nature and specificity of the alleged threats are
also relevant factors. Alaboud, 347 F.3d at 1297. Aish's
statements were somewhat vague. He indicated "[b]ad things"
would begin to happen to Kindschy and her family if she didn't
repent. He also suggested she could get into a car accident,
perhaps caused by a drunk driver. These statements lacked
"accurate details tending to heighten" the reasonable belief the
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speaker will act on his statements. R.D., 464 P.3d 717, ¶53;
Bailey v. Iles, 87 F.4th 275, 285 (5th Cir. 2023) (social media
post held not to be a true threat, in part, because it failed to
"threaten[] [a] specific harm at [a] specific location[]");
United States v. Turner, 720 F.3d 411, 421 n.5 (2d Cir. 2013)
(distinguishing "obviously flippant statement[s]" from "lengthy
and detailed discussion[s]" of harm). The statements did not
suggest Aish planned to harm Kindschy or "considered acting on
these supposed threats." Taylor, 866 S.E.2d 740, ¶82 (Earls,
J., concurring in part, dissenting in part); see Ivers, 967 F.3d
at 717 ("'You don't know the 50 different ways I planned to kill
her.'").
¶61 In assessing whether a statement is a sincere warning
or a veiled threat, courts consider whether the listener had
reason to believe the speaker had a propensity to engage in
violence. Perkins, 243 Wis. 2d 141, ¶31 (quoting United States
v. Hart, 212 F.3d 1067, 1071 (8th Cir. 2000)); S.W., 45 A.3d at
158-60. For example, in Wittig v. Hoffart, the court of appeals
held a speaker's threats to kill his wife could reasonably be
viewed as true threats, as opposed to "empty posturing, devoid
of any venal intent," because of his prior pattern of abusing
the victim. 287 Wis. 2d 353, ¶¶18-20. The past abuse included
yelling at her, shaking her head, pushing her down and dragging
her, suffocating her with a pillow, touching her sexually in an
inappropriate manner, and putting his hands around her neck and
squeezing. Id., ¶¶2-4. In short, because he "'made good on his
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threats in the past,'" it made sense to take his threats to kill
her seriously. Id., ¶3.
¶62 Nothing in the record suggests a listener would
believe Aish had a propensity for violence. Nothing in the
record suggests Aish threatened to harm Kindschy or anyone else
in the past. See Douglas D., 243 Wis. 2d 204, ¶37; United
States v. Dinwiddie, 76 F.3d 913, 917-18 (8th Cir. 1996). Nor
does the record indicate Aish committed any violent acts against
anyone——ever. See Dinwiddie, 76 F.3d at 917-18, 925. Kindschy
testified Aish never touched her or her vehicle at any point; he
remained on the sidewalk, several feet away from her, during
each of the three encounters. The record is bereft of any
evidence Aish took steps to carry out a plan to harm others.
Parr, 545 F.3d at 501 ("[W]hen a person says he plans to blow up
a building, he will naturally be taken more seriously if he has
a history of building bombs and supporting terrorism.") The
record lacks any evidence Aish endorsed or advocated for
violence against employees of abortion providers or associated
with anyone who did. Id.; Dinwiddie, 76 F.3d at 918 (speaker
was "a well-known advocate of the viewpoint that it is
appropriate to use lethal force to prevent a doctor from
performing abortions"); Dillard, 795 F.3d at 1201-02 (speaker
had a publicized friendship with someone who recently killed the
location's only abortion provider). In short, none of Aish's
past actions or background suggests he is or was apt to enact
violence on Kindschy.
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¶63 Kindschy argues Aish's comments are reasonably
understood as veiled threats in light of historical and ongoing
violence perpetrated against abortion providers. But Kindschy
has never explained why Aish's statements should be viewed as
threats in light this violence. While it is true a veiled
threat may exist when "a speaker makes a statement against a
known background of targeted violence," Thunder Studios, Inc. v.
Kazal, 13 F.4th 736, 746 (9th Cir. 2021), unlike other cases
involving abortion providers, none of Aish's comments alluded
to, or were concomitant with, any real-world acts of violence.
Cf. A.S., 243 Wis. 2d 173, ¶23 (student's statements that he
would kill everyone at his school could be true threats because
the student made allusions to a similar, real-world event,
familiar to himself and others at the school: the Columbine
High School shooting).
¶64 In United States v. Hart, the defendant parked two
Ryder trucks close to the doors of an abortion clinic, blocking
the entrances. 212 F.3d at 1072. He left each truck unattended
and without indicating their purpose. Id. at 1069. On its own,
this was not a true threat. Only two years earlier, however, a
federal office building had been bombed, and the crime involved
a Ryder truck. Id. at 1070. Given the Ryder trucks' history
and placement at the entrances of the facility, the employees of
the facility, unsurprisingly, worried their building would be
bombed too. Unlike the trucks in Hart, Aish's statements did
not allude to any recent, or well-known, real-world acts of
intentional violence.
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¶65 In United States v. Dillard, a family practitioner,
Dr. Mila Means, publicly confirmed she would offer abortion
services to the public in Wichita. 795 F.3d at 1196. At the
time, no doctors were performing abortions in Wichita; the last
doctor to do so (Dr. George Tiller) was murdered two years
prior. Id. In a letter to Dr. Means, Angela Dillard wrote, "If
Tiller could speak from hell, he would tell you what a soulless
existence you are purposefully considering . . . ." Id.
Dillard added, "You will be checking under your car everyday——
because maybe today is the day someone places an explosive under
it." Id. "I urge you to think very carefully about the choices
you are making. . . . We will not let this abomination continue
without doing everything we can to stop it." Id. at 1197.
Dillard also had a publicized friendship with Dr. Tiller's
killer. Id. at 1202. As the Tenth Circuit explained:
The context in this case includes Wichita's past
history of violence against abortion providers, the
culmination of this violence in Dr. Tiller's murder
less than two years before Defendant mailed her
letter, Defendant's publicized friendship with Dr.
Tiller's killer, and her reported admiration of his
convictions. When viewed in this context, the
letter's reference to someone placing an explosive
under Dr. Means' car may reasonably be taken as a
serious and likely threat of injury, and Defendant's
discussion of what Dr. Tiller might say if he "could
speak from hell"——which inherently carries an implicit
allusion to his death——can reasonably be read to
provide an additional threatening undertone to the
letter.
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Id. at 1201.14 No similar contextual factors exist in this case.
Nothing in the record documents any history of violence at the
Blair Planned Parenthood facility. Aish's statements did not
allude to past acts of intentional violence against abortion
providers. There is no evidence Aish endorsed or associated
with anyone who has engaged in violent activism.
¶66 Courts must be careful not to use the context of
background violence by third parties to misconstrue obviously
non-threatening speech as true threats. Doing so would
impermissibly chill the speech of those who express a position
shared by a violent fringe. The "fear of liability due to third
party action would deprive the marketplace of particular ideas
and particular speakers of the liberty to express such ideas."
Martin, supra, at 306.
¶67 The conditional nature of Aish's statements is not
very probative. Conditional statements are sometimes less
threatening than non-conditional statements. See Watts, 394
U.S. at 706-08 ("'If they ever make me carry a rifle the first
man I want to get in my sights is L.B.J.'"). Aish suggested bad
things, including death, could happen if Kindschy did not
repent. While warnings are generally conditional ("If you don't
buckle your seatbelt, you may die in a car crash"), so are most
threats. United States v. Schneider, 910 F.2d 1569, 1570 (7th
Cir. 1990) (citing United States v. Velasquez, 772 F.2d 1348,
See also United States v. Dinwiddie, 76 F.3d 913, 917
14
(8th Cir. 1996); Planned Parenthood of Columbia/Willamette, Inc.
v. Am. Coal. of Life Activists, 290 F.3d 1058, 1085 (9th Cir.
2002) (en banc).
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1357 (7th Cir. 1985)) ("Most threats are conditional; they are
designed to accomplish something; the threatener hopes that they
will accomplish it, so that he won't have to carry out the
threats."). Because the conditional nature of Aish's statements
could cut either way, that factor cannot be dispositive in this
case.
¶68 The listener's reaction is not very probative either.
Although Kindschy testified she felt threatened by Aish's
statements, such testimony is not dispositive.15 See Douglas D.,
243 Wis. 2d 204, ¶37 (holding a creative writing assignment
describing the teacher having her head cut off by a student,
which the teacher believed was a threat, was not a true threat
under the First Amendment); Wheeler, 776 F.3d at 746 (listener's
reaction is "not dispositive"). The test for whether a
statement constitutes a true threat is objective, not
subjective. We consider whether a reasonable listener, given
relevant context, would understand Aish's statements as threats
Kindschy did not pursue her claim of harassment under
15
Wis. Stat. § 813.125(1)(am)4.a., which defines "harassment" as
"[s]triking, shoving, kicking or otherwise subjecting another
person to physical contact . . . or attempting or threatening to
do the same." As counsel for Kindschy conceded before the
circuit court, that definition is "not relevant" in this case.
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of violence.16 Elonis, 575 U.S. at 751 (Thomas, J., dissenting)
(explaining the reasonable listener test ensures speech will not
"be suppressed at the will of an eggshell observer"); Operation
Rescue, 273 F.3d at 196 ("[E]xcessive reliance on the reaction
of recipients would endanger First Amendment values, in large
part by potentially misconstruing the ultimate source of the
fear."). On its own, a listener's reaction cannot convert non-
threatening statements into true threats. See R.D., 464 P.3d
717, ¶61.
¶69 In some cases, directing a statement to a particular
person might suggest the statement is a threat. See Hart, 212
F.3d at 1071. Although Aish's statements were made directly to
Kindschy, a reasonable listener would not believe Aish intended
to inflict violence on Kindschy. A clearly non-threatening
statement, such as a word of caution or warning, does not become
threating merely because it is directed to a particular person.
An indirect warning is often ineffective.
V
¶70 A law that can be directed against speech found
offensive to some portion of the public can be turned
against minority and dissenting views to the detriment
Importantly, the record does not indicate Kindschy ever
16
reported Aish's statements to the police as threats of violence.
See United States v. Bagdasarian, 652 F.3d 1113, 1121 (9th Cir.
2011); New York ex rel. Spitzer v. Operation Rescue Nat'l, 273
F.3d 184, 196 n.5. (2d Cir. 2001). Nothing in the record shows
how police officers reacted to his statements. It is also
unclear what Kindschy meant when she testified she felt
threatened by Aish. During her testimony, she said she felt
threatened by Aish on February 25, 2020, because he called her a
liar. Calling someone a liar does not convey an intent to enact
violence.
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of all. The First Amendment does not entrust that
power to the government's benevolence. Instead, our
reliance must be on the substantial safeguards of free
and open discussion in a democratic society.
Matal v. Tam, 582 U.S. 218, 253–54 (2017) (Kennedy, J., concurring in part and concurring in
the judgment).
¶71 The government may not silence speech simply because
it offends or frightens others. The circuit court entered an
injunction against Aish because it believed Kindschy should not
"have to even think about that she might get killed on her way
home or bad things are going to happen to her and her family."
The First Amendment, however, protects speech that makes people
think about the possibility of their deaths. Unless a
reasonable listener, who is familiar with the full context,
would understand the statement as conveying the speaker or a co-
conspirator intends to inflict unlawful violence on a person or
group of people, the speech cannot be restricted or punished.
¶72 Some might regard Aish's speech as frightening,
offensive, and hurtful. But silencing speech because it offends
"strikes at the heart of the First amendment." Id. at 246
(plurality opinion). "'If there is a bedrock principle
underlying the First Amendment, it is that the government may
not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.'" Snyder v.
Phelps, 562 U.S. 443, 458 (2011) (quoting Texas v. Johnson, 491
U.S. 397, 414 (1989)). "[T]he proudest boast of our free speech
jurisprudence is that we protect the freedom to express 'the
thought that we hate.'" Matal, 528 U.S. at 246 (quoting United
States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J.,
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dissenting)). Before the People ratified the Constitution, our
Founders understood that infringing the essential liberty to
speak freely would imperil our freedom.
¶73 Free speech rights bear a cost. They force us to
endure distressing and loathsome speech. See, e.g., Snyder, 562
U.S. at 454 (holding the First Amendment protected the picketing
of a funeral with signs that included messages such as "Thank
God for IEDs," "God Hates Fags," and "Thank God for Dead
Soldiers"); Bible Believers v. Wayne Cnty., 805 F.3d 228, 238
(6th Cir. 2015) (en banc) (protesters carrying signs saying,
inter alia, "Islam Is A Religion of Blood and Murder" along with
"a severed pig's head on a spike"). That is the price we pay
for living in a free society that tolerates and encourages,
rather than suppresses, alternative points of view. Free speech
stands as a bulwark against tyranny.
¶74 Because a reasonable factfinder could not construe
Aish's statements as true threats, the First Amendment protects
them. An unconstitutional injunction impermissibly infringed
Aish's fundamental First Amendment right to speak freely on "a
profound moral issue on which Americans hold sharply conflicting
views." Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 223
(2022). The government violated Aish's free speech rights for
nearly four years, in part because of this court's avoidable
delay in deciding the matter. Any future attempt to enjoin Aish
based on those statements would violate the Constitution.
¶75 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.
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