HARRISBURG – The Supreme Court has reversed a trial court injunction that prevented a Jewish family from erecting lawn signs in their backyard, signs which protested hostile and anti-Semitic behavior they allegedly experienced from their neighbors.
On Aug. 20, state Supreme Court Justices Kevin M. Dougherty, Debra Todd, Christine Donohue and Sallie Updyke Mundy ruled to overturn the injunction issued by the Montgomery County Court of Common Pleas, in Frederick E. Oberholzer Jr. and Denise L. Oberholzer’s action against Simon Galapo and Toby Galapo. Dougherty authored the Court’s opinion in this matter.
“Dr. Simon and Toby Galapo (appellants) own a home in Abington Township, Montgomery County, the rear yard of which borders the property of Frederick and Denise Oberholzer (appellees). Although the properties are separated by a creek, low-lying shrubs and some tall trees, the houses and yards remain visible to one another. In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point, after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a ‘f—king Jew,” Dougherty said.
“This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages ‘along the back tree-line directly abutting [the Oberholzers’] property line, pointed directly at [the Oberholzers’] house, and in direct sight of [other] neighbors’ houses.’ All told, the Galapos posted 23 signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances.”
The signs included, among others, “No Place 4 Racism”, “Hitler Eichmann Racists”, “Racists: The true enemies of FREEDOM,” plus 20 additional signs.
The Oberholzers brought suit in the Montgomery County Court of Common Pleas, arguing the Galapos’ posting of the signs was tantamount to “(1) Private nuisance; (2) Intrusion upon seclusion; (3) Defamation – libel and slander; (4) Publicly placing the Oberholzers in false light; and (5) Intentional infliction of emotional distress."
In issuing its injunction, the trial court ordered the Galapos to move or re-place the signs so that they “be positioned in such a way that they do not directly face and target [the Oberholzers’] property: The fronts of the signs (lettering, etc.) are not to be visible to [the Oberholzers] nor face in the direction of [their] home.”
In a post-trial relief dispute, a panel trio of the Superior Court of Pennsylvania vacated the trial court’s amended order granting the permanent injunction in part and remanded the case for further proceedings.
The Superior Court held “the trial court’s order is facially content-neutral, as it is unrelated to the content of the speech”, leading the Galapos to appeal to the state Supreme Court.
But on appeal, a majority contingent of the state Supreme Court found that the original injunction violated the Pennsylvania Constitution’s Free Speech Clause – and cited its own precedent in Willing v. Mazzacone, which had found that injunctions against speech are examples of unconstitutional prior restraint.
“The fact that one purpose of the Galapos’ signs was to engage in a ‘personal protest’ against the Oberholzers does not alter this conclusion. Surely, a protest was part of the motive behind the signs. But so what? Again, Article I, Section 7 [of the Pennsylvania Constitution] ‘specifically affirms the ‘invaluable right’ to the free communication of thoughts and opinions, and the right of ‘every citizen’ to ‘speak freely’ on ‘any subject’ so long as that liberty is not abused.’ Those sweeping terms necessarily include the right to use speech as a means of (peaceful) protest,” Dougherty said.
“What matters is whether the ‘speech is of public or private concern, as determined by all the circumstances of the case.’ ‘Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ Further, the ‘arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”
In this case, Dougherty and his colleagues in the majority believe that it was.
“Here, it cannot seriously be disputed that the messages relayed by the Galapos’ signs are matters of public concern. Mrs. Oberholzer admitted to making an offensive, anti-Semitic remark to Dr. Galapo, which some might argue is ‘part of a broader, societal trend of hate and violence toward Jewish people.’ In response, the Galapos erected on their own lawn stationary signs decrying hatred, anti-Semitism and racism. We have no hesitation in finding ‘these are concerns of general interest to the Jewish community and the wider public,” Dougherty stated.
The Supreme Court majority further found that substantial privacy interests were not invaded in an intolerable fashion.
“The Galapos’ signs are stationed exclusively on their own property and they lack any coercive or other element that might implicate the Oberholzers’ privacy interests. Nor do the signs present any type of actionable, non-speech-based nuisance, like excessive illumination or loud noises. The signs are just that: signs. All homeowners at one point or another are forced to gaze upon signs they may not like on their neighbors’ property – be it ones that champion a political candidate, advocate for a cause, or simply express support or disagreement with some issue. If a single judge could suppress such speech any time an offended viewer invoked a generalized right to residential privacy, without proving more – specifically, that substantial privacy interests are being invaded in an essentially intolerable manner – it would mark the end to residential expression; after all, we cannot ignore that the Galapos have property rights too,” Dougherty said.
“We do not doubt the permanent injunction judge’s finding that the Galapos’ signs ‘severely and negatively impact the [Oberholzers’] well-being, tranquility, and quiet enjoyment of their home.’ That finding, however, is not equivalent to a determination ‘that substantial privacy interests are being invaded in an essentially intolerable manner,’ and the record does not support such a conclusion in any event.”
State Supreme Court Justices P. Kevin Brobson and David N. Wecht separately dissented from the majority.
Brobson found that the Oberholzers’ quiet enjoyment of their residence was a substantial privacy interest that was impeded upon by the Galapos’ signs.
“The signs were not directed toward the public. Instead, the Galapos erected the signs in their backyard and directed them strictly toward the Oberholzers – i.e., one private home – while placing zero signs in their front yard for the public to see. Additionally, if the Galapos intended to reach a broader audience with the signs, there would be no need for the Galapos to appeal from the trial court’s order entering the injunction because, under the injunction’s limitations, the signs were still visible to the neighbors, just not the Oberholzers,” Brobson said.
“The nail in the coffin that cements these points is Dr. Galapo’s testimony that it was irrelevant whether anyone other than the Oberholzers saw the signs. Thus, the foregoing makes clear that the Galapos’ signs were targeted speech designed to disrupt the quiet enjoyment of the Oberholzers’ home.”
Wecht concurred that his colleagues in the majority erred in their interpretation.
“I conclude ultimately that the injunction here is not a prior restraint and does not violate the no-injunction rule, a rule that in any event does not exist in Pennsylvania, and one that would not apply to this case even if it did exist here. Contrary to the majority’s analysis, equity courts possess the authority to issue certain kinds of narrow injunctions that restrict speech so long as those injunctions can withstand either intermediate scrutiny (for content-neutral injunctions) or strict scrutiny (for content-based injunctions). Because the instant injunction survives application of either standard, it should be upheld,” Wecht said.
Supreme Court of Pennsylvania case 104 MAP 2022
Superior Court of Pennsylvania case 794 EDA 2020
Montgomery County Court of Common Pleas case 2016-11267
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com