2024 WI 27

SUPREME 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.
2

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. 
2024 WI 27

NOTICE

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,

 v.

Brian Aish,

 Respondent-Appellant-Petitioner.

FILED

JUN 27, 2024

Samuel A. Christensen

Clerk of Supreme Court

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 antiabortion 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

¶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 

 

1 Our remedy, directing the circuit court to vacate the 

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.
No. 2020AP1775 

3

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 

 

2 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version.

3 The Honorable Rian W. Radtke of the Trempeleau County 

Circuit Court presided.
No. 2020AP1775 

4

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 
No. 2020AP1775 

5

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
No. 2020AP1775 

6

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 

 

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).
No. 2020AP1775 

7

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)).

¶12 The harassment injunction in this case is a contentbased 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. 

 

8 Kindschy contends that the injunction entered against Aish 

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. 
No. 2020AP1775 

8

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

¶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, 
No. 2020AP1775 

9

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.

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. 

 

9 Prior 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.
No. 2020AP1775 

10

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, 

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 

 

10 Some courts have, with little or no analysis, declined to 

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. 

11 The language the Supreme Court used to describe liability 

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.
No. 2020AP1775 

11

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 truethreat 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 

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 
No. 2020AP1775 

12

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 

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 
No. 2020AP1775 

13

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 

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. 
No. 2020AP1775 

14

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

¶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 contentbased restriction on Aish's speech and that it fails to satisfy 
No. 2020AP1775 

15

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. 
No. 2020AP1775.rgb

1

¶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 

 

1 https://founders.archives.gov/documents/Washington/99-01-

02-10840. 
No. 2020AP1775.rgb

2

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. 

3 "Harassment" is statutorily defined to also include 

"[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 
No. 2020AP1775.rgb

3

¶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. 

4 Kindschy's testimony does not explain why Aish received a 

ticket.
No. 2020AP1775.rgb

4

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 
No. 2020AP1775.rgb

5

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. 
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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. 
No. 2020AP1775.rgb

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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; 
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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.
No. 2020AP1775.rgb

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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).
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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 coconspirator 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 
No. 2020AP1775.rgb

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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 

 

7 "The listener might be the victim of a threat or another 

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. 
No. 2020AP1775.rgb

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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. 

 

8 A 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). 

9 Jennifer 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."). 
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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). 

 

10 United States v. Rumely, 345 U.S. 41, 56 (1953) (Douglas, 

J., concurring); Abrams v. United States, 250 U.S. 616, 630

(1919) (Holmes, J., dissenting) ("free trade in ideas"). 
No. 2020AP1775.rgb

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¶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
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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 

 

11 But 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."). 

12 The lack of circuit court findings regarding true threats 

suffices to vacate the circuit court's injunction, and this 
No. 2020AP1775.rgb

16

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. 
No. 2020AP1775.rgb

17

 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 coconspirator 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 
No. 2020AP1775.rgb

18

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; 
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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 
No. 2020AP1775.rgb

20

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) 
No. 2020AP1775.rgb

21

(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 ragefilled 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, 

 

14 See also United States v. Dinwiddie, 76 F.3d 913, 917 

(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 

 

15 Kindschy did not pursue her claim of harassment under 

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 nonthreatening 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 

 

16 Importantly, the record does not indicate Kindschy ever 

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 coconspirator 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. 
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¶75 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER joins this concurrence.
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