By Gretchen Schuldt
An abortion protester's comments to a clinic employee about “bad things happening to you and your family” and that “you’re lucky if you make it home safe” constituted harassment and went beyond protected free speech, the state Court of Appeals ruled Tuesday.
The District III appeals court panel upheld an injunction barring, until Sept. 9, 2024, Brian Aish from harassing nurse practitioner Nancy Kindschy and requiring him to avoid her residence or any premises she temporarily occupies, including the Blair Health Center. Kindschy worked at the clinic, which did not provide abortions. It provided Planned Parenthood family planning services.
"Although Aish claims that he intended only to influence Kindschy to leave her employment, to shut down Planned Parenthood, and to proselytize, his comments and behavior were harassing to Kindschy, making his actions unprotected speech," Appellate Judge Gregory B. Gill wrote for the three-judge panel. He was joined in his opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz.
"An individual’s ability to protest abortion, like any other subject, is not unlimited," Gill wrote in the decision upholding a ruling by Trempealeau County Circuit Judge Rian Radtke.
Kindschy petitioned for the harassment injunction in March 2020, alleging that Aish's behavior made her fear for her safety. He had protested at clinics where Kindschy worked since 2014, and he grew confrontational in 2019.
“You have time to repent," Aish told Kindschy one day that year, according to testimony, Gill said. Aish also told Kindschy that "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.”
About a week later, Kindschy testified in circuit court, Aish approached her vehicle as she left the clinic and told her angrily that, “you have blood on your hands.”
"Kindschy saw Aish receive a citation for trespassing, which Kindschy believed angered him even more," Gill wrote. "Kindschy was frightened of Aish’s aggressive and angry behavior."
Aish also followed Kindschy to her car and told her that she would be "lucky" if she got home safely and that bad things were going to happen to her family.
"A week later, Aish accused Kindschy of lying to the authorities about him and told her that she would be 'lucky' to make it home safely, which caused her 'great concern,' ” Gill said.
Radtke, in ordering the injunction, found that some of Aish's statements were threatening and that he was using intimidation with an intent to scare Kindschy into quitting her job at Blair.
Aish argued on appeal that Radtke erred by finding his actions were harassing or intimidating, but the appeals court disagreed.
"Aish claims that he was merely 'drawing [Kindschy’s] attention to the reality of commonplace but serious dangers' and that there 'was no explicit or suggested causal relationship to Aish,' ” Gill wrote. "These assertions, however, are contrary to both the record and the circuit court’s findings."
A co-worker testified that Kindschy appeared bothered and scared, Gill said, and the clinic added a security guard and cameras because of Kindschy's concerns about Aish.
"Harassing behavior cannot be transformed into nonharassing, legitimate conduct simply by labeling it as a political protest." – Appellate Judge Gregory B. Gill Jr.
Aish also argued on appeal that Radtke erred by finding that Kindschy had a greater interest in not hearing the 'negative realities' that Aish raised than he had in 'exercising his First Amendment rights and expressing his pro-life, anti-Planned Parenthood, Christian viewpoint,' Gill wrote.
Aish's contention that his conduct was protected by the First Amendment also is incorrect, Gill said.
"Harassing behavior cannot be transformed into nonharassing, legitimate conduct simply by labeling it as a political protest," he wrote.
The appellate judges also rejected Aish's claim that his protest was an anti-abortion one and so was public and deserving of special protection.
"Aish was not protesting at an abortion clinic," Gill wrote. "His efforts were not geared toward changing the minds of the general public or legislators. Rather, Aish was attempting to get Kindschy specifically to change her mind and to resign her position as a nurse practitioner at the Blair Clinic.... Aish’s efforts were almost entirely personal – and not public – in nature."
"The (circuit) court correctly determined that the First Amendment does not uphold a right to threaten or scare people in order to sway their religious beliefs or induce them to quit their jobs," Gill said. "The court properly concluded that Aish had engaged in harassment that was not protected by the First Amendment."
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