Permanent Injunction Standard; Non-defamation Tort; Prior Restraint Doctrine

Oberholzer v. Galapo, 274 A.3d 738 (Pa. Super. 2022), allocatur granted Oct. 24, 2022, appeal docket 104 MAP 2022

During an argument about a resurveyed property line between neighbors, the Galapos (Appellants) and the Oberholzers (Appellees), Mrs. Oberholzer allegedly made an anti-Semitic remark to Mr. Galapo. Following the argument, the Galapos erected signs on their property with general anti-hate and anti-racist messages, e.g., “Look Down on Racism.” The Oberholzers filed suit against the Galapos, seeking permanent and preliminary injunctive relief prohibiting the Galapos from putting up signs in their backyard that faced the Oberholzer’s home. The trial court granted a permanent injunction in part and the Galapos appealed.

As the Superior Court explained, the trial court  ordered the Galapos to position their signs in such a way so that they did not face Oberholzers property; the trial court, concluded that:

[the] acts were done as a personal protest against [Appellees]. The personal and specific messages of the signs are for the alleged racist behavior exhibited by [Appellees], not racism generally existing in society. The placement of the signs indicates that [Appellant Husband] is targeting specific individuals with the signs that decry their perceived racist behavior.

The trial court justified the injunction for the following reasons: “(1) [Appellees] have no adequate remedy at law; and (2) that a greater injury of a continuing intrusion on [Appellees’] residential privacy will result from refusing to grant the equitable relief sought and allowing the existing signs to remain as they are presently positioned on the [Appellants’] property.” Id. at 8, R.R. at 625a. Ultimately, the trial court concluded that because Appellants infringed on Appellees’ right to privacy and quiet enjoyment of their residential home, a time, place, and manner restriction on Appellants’ speech was permissible. Id. at 9-11, R.R. at 626a-28a.

However, the trial court did not enjoin the content of Appellants’ signs because under Pennsylvania law, “equity lacks the power to enjoin the publication of defamatory matter where an injunction would be an unconstitutional prior restraint on freedom of expression.” Id. at 12, R.R. at 629a (citing Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978) (plurality)).

Slip op. at 6-7. Thereafter, the Oberholzers filed a petition to hold the Galapos in civil contempt because while the Galapos had turned the signs to face the other direction, the text was still visible to the Oberholzers from their property. The trial court did not hold the Galapos in contempt, but amended its initial order granting the injunction in part to require the Galapos signs be constructed of opaque materials, ordering that:

A) The signs posted by [Appellants] on their property are allowed to remain;

B) The signs previously posted on [Appellants’] property shall be positioned in such a way that they do not directly face [Appellees’] property; e., the fronts of the signs (lettering, etc.) are not to be visible to [Appellees] nor face in the direction of [Appellees’] home. In order to ensure that none of the signs are visible regardless of their positioning, these signs shall be constructed with opaque material.

Slip op. at 8. The Galapos petitioned for post-trial relief, arguing that: the injunction is an unconstitutional prior restraint on future speech; the injunction was content-based because it prohibits the Galapos “from communicating specific messages to [Appellees] because [Appellees] find those messages offensive,” slip op. at 20. The Oberholzers countered that: the injunction was tailored to past communications so as to not violate the prior restraint doctrine and the injunction does not refer “to the specific beliefs of [Appellants] on any sign,” therefore the injunction is “prima facie content neutral,” id.

The trial court denied the Galapos petition for post trial relief, applying a time, place, and manner test to justify its injunction. The trial court reasoned: “when a citizen’s exercise of their right to freedom of speech substantially impacts another citizen’s private civil rights, that speech constitutes expressive activity and such expressive activity may be subject to reasonable time, place and manner restrictions” and that its injunction contained permissible time, place, and manner restrictions on Appellants that did not regulate the content of their signs. Slip op. at 8-9. The trial court further reasoned that because the injunction was “clear that all signs, no matter the language or images depicted, may remain but may not face or target” Appellees’ property, the injunction was content-neutral. Slip op. at 20-21.

Superior Court held that the trial court’s injunction did not constitute a prior restraint on speech because it addressed the existing signs, not future communications. Superior Court additionally found that the injunction was content neutral because it did not reference the content or subject matter of the signs. However, Superior Court concluded that the trial court applied the incorrect legal standard to justify the injunction, which should have been tailored pursuant to the heightened standard set forth in Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994) because the injunction furthered a significant governmental interest to serve the Oberholzers’ right to residential privacy. The court reasoned:

With respect to Appellants’ argument that the injunction does not further a significant government interest, they are incorrect. In Frisby, the United States Supreme Court remarked that all members of the community have a right to residential privacy, which includes the right to “enjoy within their own walls . . . an ability to avoid . . . unwanted speech . . . .” See Frisby, 487 U.S. at 484-85. Pennsylvania has similarly recognized this right and that courts may enjoin any activity violating an individual’s right to residential privacy. See Klebanoff, 552 A.2d at 678; accord SmithKline, 959 A.2d at 357-58. A right to residential privacy may be violated when a listener is subjected to targeted speech, including picketing and protesting. See Frisby, 487 U.S. at 484-85; Klebanoff, 552 A.2d at 678-80; accord SmithKline, 959 A.2d at 359. As previously set forth above, Appellant Husband testified that Appellants’ signs targeted Appellees.  Because an injunction could further the significant governmental interest in Appellees’ right to residential privacy, the trial court should have applied the heightened, more rigorous standard under Madsen in tailoring its injunction. See Madsen, 512 U.S. at 765 (holding, “when evaluating a content-neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous”). The instant trial court, however, instead applied the time, place, and manner test in justifying its injunction. Like the Madsen Court, which closely reviewed the terms of the state court’s injunction to the extent it impacted private property, including the clinic employees’ right to residential privacy, the instant trial court should have also similarly tailored its injunction to ensure it “burden[ed] no more speech than necessary to serve” Pennsylvania’s right to residential privacy. See Madsen, 512 U.S. at 765; see also Pap’s A.M., 812 A.2d at 605 (noting that Pennsylvania’s right to freedom of expression is broader than the First Amendment). Therefore, because the trial court applied an incorrect legal standard, we must vacate the trial court’s judgment and amended injunction and remand for further proceedings. See Madsen, 512 U.S. at 765.

Slip op. at 50-51.

In concurring and dissenting opinion, Judge Stabile agreed with the Majority’s “discussion and summary of applicable legal principles in its analysis” but dissented as to the Majority’s holding to vacate and remand on the basis that the trial court applied the incorrect standard. Judge Stabile opined that such remand was “unnecessary because the relief ordered by the trial court comports with the applicable standard governing content-neutral injunctions that have the effect of restricting speech.” Concur/Dissent slip op. at 1.  Judge Stabile explained:

I find the cases cited by the Majority, whereby it feels it has no choice but to order a remand, to be distinguishable from the present matter. See Majority Opinion at 766, n.24 (“[w]hen a trial court has applied an incorrect legal standard, we should vacate and remand.”). While I cannot quibble with the general proposition that a remand ordinarily is in order when an incorrect legal standard is employed, I do not find a remand necessary where the error here is harmless, since the injunctive remedy ordered by the trial court comports with the Madsen standard. Nowhere in the cases cited by the Majority do I find a mandate for remand where the error is harmless. In fact, in the lone Pennsylvania Supreme Court case cited by the Majority, Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049 (2013), discussed more fully, infra, it was the Court’s statement that when “a reviewing court applies the incorrect legal standard, our court generally will remand the matter with appropriate directions.” Id. at 1057 (emphasis added). This statement does not compel a remand every time an error is made in the standard employed.

Concur/Dissent slip op. at 5. Judge Stabile concluded that:

…the parties have expended great time and energy litigating this dispute between them with the trial court issuing an injunction and an amended injunction. The material facts are not in dispute. Review of the amended injunction under the correct standard is as a matter of law. A more narrow injunction cannot be fashioned that would burden speech more than necessary to address Appellants’ unwanted intrusion of messaging into the Appellees’ home. In the interests of justice, I believe we too may review the scope of the amended injunction to decide as a matter of law whether the limited injunction granted by the trial court comports with the Madsen standard.

I previously stated my belief that while the trial court improperly looked to a time, manner and place analysis in coming to the injunctive relief it ordered, the relief nonetheless burdened no more speech than necessary to serve the significant government interest in protecting the privacy of the Appellees’ home. As such, I do not believe a remand is necessary to come to the same conclusion and therefore, any error in the standard used was harmless. I therefore respectfully dissent from that part of the Majority’s decision to vacate the judgment and amended injunction in order to remand this matter for a determination under the Madsen standard.

 Concur/Dissent slip op. at 8-9.

The Pennsylvania Supreme Court will consider the following issues:

(1) Whether an injunction prohibiting ongoing publication constitutes an impermissible prior restraint under Article I, Section 7 of the Pennsylvania Constitution?

(2) Whether the publication of language which gives rise to tort claims other than defamation cannot be enjoined under Article I, Section 7 of the Pennsylvania Constitution?

(3) Whether the Superior Court committed an error of law by concluding that the injunction was content-neutral and therefore not subject to strict scrutiny?

For more information, contact Kevin McKeon or Dennis Whitaker.