The burden the state must meet to show in civil harassment case that defendant's knew his words or acts could be interpreted as a "true threat" could depend on how much a potential sanction, whether civil or criminal, "threatens to chill constitutionally protected speech," the state Department of Justice said in a court brief.
"It is possible that First Amendment rights could be sufficiently protected by a lower level of required scienter, such as negligence, rather than recklessness," Assistant Attorney General Thomas Bellavia wrote.
"Scienter" is "a defendant's knowledge that an act or conduct is wrongful and intent to act despite this knowledge," according to Westlaw.
The state Supreme Court last month heard arguments in Kindschy v Aish, in which abortion protester Brian Aish is challenging a civil harassment injunction prohibiting him from being near a Planned Parenthood clinic where nurse Nancy Kindschy sometimes worked.
During oral arguments, Aish attorney Joan Mannix told the justices that Aish's speech to Kindschy was protected by the First Amendment and came "from a place of love and non aggression."
Among other things Aish told Kindschy, according to a Court of Appeals decision upholding the injunction, was “You have time to repent," and "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.”
Before the argument and while the Aish case was pending, the U.S. Supreme Court issued a decision in Counterman v Colorado, ruling that the First Amendment requires that state, in a criminal prosecution, to show that a defendant had some "understanding of the threatening nature of his statements” to be convicted of making "true threats" of violence.
The court adopted a recklessness standard that requires "showing that a person 'consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another.' ”
Wisconsin's negligence standard, on the other hand, says negligence occurs if a person, "without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property," according to Wisconsin's civil jury instructions.
After that decision, the state Supreme Court asked for briefs on how U.S. high court's decision affected the Aish case. End Domestic Abuse Wisconsin (EDA) and the state Department of Justice (DOJ) each filed an amicus brief. This post looks at DOJ's; EDV's brief argued that additional requirements should not be imposed on "petitioners seeking civil injunctions against their abusers and harassers, even in cases involving threatening speech." A post about that brief is here.
"If consideration of the content of Aish’s speech is necessary to justify the injunction, then a Counterman analysis is required to determine whether that content can be enjoined as an unprotected true threat," Bellavia wrote.
The Counterman decision made clear the recklessness requirement applied to both criminal and civil cases, Bellavia said.
"It does not follow, however, that the same level of scienter is necessary to protect against a chilling effect in different cases involving sanctions that have substantially different degrees of severity or that present greater or lesser potential burdens on free speech rights," he said. "After all, a heavier or more restrictive sanction on unprotected speech could be more likely to chill protected speech than would a lighter or less restrictive sanction."
Counterman's logic, he said, did not eliminate the possibility that a lesser sanction in civil harassment cases would chill speech less than a harsher penalty in criminal cases.
In injunction cases, like other civil actions, "the important factor is the extent to which a particular injunction restricting unprotected speech also threatens to chill protected speech," he said.
"The issue is thus one of degree," Bellavia said.
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