Pro-Life Advocate Wins Huge Free Speech Victory in Court

On June 27, 2024, Thomas More Society attorneys representing pro-life advocate Brian Aish won a unanimous victory at the Wisconsin Supreme Court. The lawyers for Aish successfully defeated an earlier court order that blocked Aish from coming near a Planned Parenthood nurse. That order had prohibited Aish from sharing his pro-life views and Christian religious message while outside of his local abortion facility.

The Wisconsin Supreme Court unanimously ruled to vacate, or nullify, the injunction against Aish, concluding that “the injunction violates the First Amendment” and “the injunction is a content-based restriction on Aish’s speech and that it fails to satisfy strict scrutiny.” This is the highest standard of review that a court uses to evaluate the constitutionality of a given matter. Justice Rebecca Bradley, concurring in the judgment, noted in a separate opinion that the lower court “never deemed Aish’s statements true threats, and no reasonable factfinder could have made such a finding based on the record.” “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,’” Justice Bradley added.

Joan Mannix, Thomas More Society Executive Vice President and Managing Counsel, stated:

“We are very pleased that the Wisconsin Supreme Court vindicated Brian Aish’s free speech rights and restored his ability to continue sharing his pro-life message. Importantly, the Wisconsin Supreme Court’s decision was unanimous. It reaffirms that the First Amendment embodies a paramount American value of protecting free speech, even if the viewpoint expressed may be unpopular or controversial—a value that transcends partisan divides. The First Amendment, as Justice Rebecca Bradley wrote in her concurrence, ‘is a bulwark against the weaponization of the justice system to squelch or even criminalize disfavored political voices.’”

Beginning in 2014, Aish had regularly advocated for life on the public sidewalk outside the Planned Parenthood facility in Blair, Wisconsin. He preached the Christian message of repentance and shared his pro-life views on the public right of way. Following a series of interactions between Kindschy and Aish, Kindschy sought a court order barring Aish from being near her. In 2020, a county judge agreed to issue the requested injunction. In 2022, a state appeals court upheld the injunction on the grounds that Kindschy found Aish’s message to be “threatening,” and ruled that the injunction did not run afoul of First Amendment speech protections.

Thomas More Society attorneys appealed to the Wisconsin Supreme Court, before which the case was argued in 2022. Thomas More Society attorneys argued the case did not involve any “true threat”—a form of speech that does not enjoy protection under the First Amendment. The case was then re-argued in 2024, to address the United States Supreme Court’s precedent-setting 2023 ruling in Counterman v. Colorado. In Counterman, the U.S. Supreme Court clarified that a speaker must act recklessly with regard to whether his or her words will be perceived as a “true threat.” Thomas More Society attorneys successfully demonstrated, and the Wisconsin Supreme Court found, that absent any findings satisfying that requirement, the injunction prohibiting Aish’s speech could not stand.

Read the Opinion and Decision of the Supreme Court of Wisconsin, issued on June 27, 2024, in Nancy Kindschy v. Brian Aish, here.

LifeNews Note: Peter Breen is the Executive Vice President & Head of Litigation for the Thomas More Society. File photo.

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