The Wisconsin Supreme Court, which is dominated by liberals,
The decision was unanimous. The court ruled in favor of pro-life Christian Brian Eish on Thursday, vacating an injunction that had barred him from peacefully protesting abortion in the presence of certain nurses.
Aish has been protesting the slaughter of unborn children for years, often protesting on the sidewalk outside a former Planned Parenthood abortion clinic in Blair, Wisconsin. According to court documents, he “warns women” [seeking abortions] “If we proceed, we will be accountable to God on Judgment Day,” they said, quoting Bible verses and holding up signs.
After several interactions with Aish, nurse Nancy Kindsey sought a harassment injunction against the pro-life activist in March 2020.
On Feb. 18, 2020, Aish was recorded telling Kindcy, “I pray that you all get home safe and sound for another day or two until you turn to Christ and repent. There’s still time.”
This and other alleged comments appear to have infuriated the nurse.
The circuit court found that Aish’s pleas to the abortion nurse were made “from a place of love and non-aggression” and in the context of “communicating.”[ing] A message of repentance.”
Ultimately, Aish testified, his purpose was to “warn those who are going in there that if they have any thought whatsoever of torturing and killing children for convenience or choice, they are mistaken and will be held accountable.” [to God] For they are shedding the blood of innocent children.”
He went on to say that his warning to Kindcy and others about the traffic accident was meant to emphasize that “we don’t know if there will be a tomorrow, so God is warning us not to assume that there will be a tomorrow to repent.”
While the lower court acknowledged Aish’s intent, it still concluded that his words were coercive and served no “legitimate purpose.”
“No reasonable fact finder would make such a finding based on the record.”
Aish was given a four-year restraining order, forbidding her from speaking to the nurse and effectively banning her from protesting outside the abortion clinic where the nurse sometimes works.
Pro-lifers appealed, but the appeals court upheld the injunction.
The Wisconsin Supreme Court reviewed the case following a decision by the U.S. Supreme Court.
Counterman v. ColoradoThe Wisconsin judges CountermanThe Supreme Court ruled that “in a criminal prosecution for harassment predicated on true threats, the First Amendment requires the government to prove, at a minimum, that the defendant ‘consciously disregarded a substantial risk that his or her communications would be perceived as threatening violence.'”
In light of
Counterman In its decision, the Wisconsin Supreme Court held that even if Aish’s statements were legitimate threats, the anti-harassment injunction still violated the First Amendment because the lower court had failed to prove that Aish demonstrated such conscious disregard.
In her concurring opinion, Judge Rebecca Bradley emphasized that Eish’s statements were not a genuine threat to begin with and that “no reasonable fact-finder could make such a finding based on the record before the circuit court.”
Bradley noted that to constitute a true threat, “there must be an explicit or implicit expression of the speaker’s or conspirators’ intent to inflict imminent or future harm on the victim. … This element is essential. Speech cannot be punished or restricted because the hearer ‘fears general harm from what the speaker suggests.'”
In a majority opinion, the Wisconsin Supreme Court ruled that the injunction “violates the First Amendment” because it “amounts to a content-based restriction on Mr. Eish’s speech and fails to meet strict scrutiny,” and voided the injunction.
Joan Mannix, vice president of the Thomas More Society, the lawyer who represented Aish in the case.
stated The ruling “reaffirms that the First Amendment embodies America’s most important value, protecting free speech even when the views expressed are unpopular or controversial — a value that transcends partisan divisions.”
Middle Tennessee State University’s Free Speech Center
Shown Kindsey has since retired and the clinic where he worked has closed.
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