Kindschy v. Aish

Is preaching the Gospel a “true threat” that is criminal? Since 2014, Brian Aish has shared the pro-life viewpoint and preached the Christian message of repentance outside of a Planned Parenthood facility in Blair, Wisconsin—demonstrating his opposition to abortion and aiming to convince the abortion facility’s employees to leave their jobs. Nancy Kindschy, a Planned Parenthood nurse at the Blair, Wisconsin facility, petitioned for and was granted in 2020 a harassment injunction against Aish—claiming that Aish had “threatened” her through his speech. However, Aish’s speech was merely aimed towards “[convincing Kindschy] to leave her employment or stop what she was doing.” Aish’s speech was aimed at sharing a message of repentance and helping Kindschy realize the violence of abortion.  

Aish appealed, arguing that the injunction violated his free speech rights in the public square—namely, on the public right of way outside the Planned Parenthood facility—under the First Amendment. Not only was he prohibited from being near Kindschy, but he was also effectively prohibited from sharing the pro-life message outside of the Planned Parenthood because he had no certainty of when Kindschy would be present in the facility. The lower courts never deemed Aish’s statements to be “true threats,” which are violent expressions that do not enjoy protection under the First Amendment, but a state appeals court nonetheless upheld the order. Thomas More Society appealed the case on behalf of Aish to the Wisconsin Supreme Court.

Thomas More Society attorneys argued the case before the Wisconsin Supreme Court in 2022, and then re-argued it in 2024, due to the precedent-setting nature of the U.S. Supreme Court case, Counterman v. Colorado. On June 27, 2024, the Wisconsin Supreme Court dismissed the injunction against Aish, handing down a major victory for free speech rights. In a unanimous ruling, the Wisconsin Supreme Court ruled that the injunction against Aish violated the First Amendment and failed strict scrutiny, the highest standard of review used by courts to determine the constitutionality of a given matter. This victory for freedom of speech reaffirms our bedrock First Amendment principles and makes clear that speech in the public square—even when disfavored or unpopular—is protected.

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