Oberholzer v. Galapo, 2024 Pa. LEXIS 1219 (Pa. Super. for Court of Common Pleas, August 20, 2024) (Doughtery, J.)
The question was whether signs decrying hatred and racism, placed by a Jewish family on their own lawn – after a neighbor called one of them a “fucking Jew,” were properly enjoined by the trial court. This case involves inspection of the free speech provision found in Article I, Section 7 of the Pennsylvania Constitution. The Court found that the injunction in this case violates free speech. The neighbors had a right to put up the signs.
This case initially involved a neighbors dispute. The feud involved Dr. Galapo, confronting Mr. Oberholzer concerning their property line, and Mrs. Oberholzer calling the neighbor a “fucking Jew.” This prompted the Galapos to erect may signs displaying anti-hate and anti-hate messages along the back tree line directly abutting the Oberholzer’s property line, pointing directly at the Oberholzer’s house, and in direct site of other neighbor’s houses. Twenty-three signs were posted.
The Court granted an injunction against posting of the signs, based on private nuisance, intrusion upon seclusion, defamation, false light, and infliction of emotional distress.
The majority of the Superior Court concluded that the trial court wrongly applied the time, place, and manner test, when it should have applied the heightened, more rigorous standard when tailoring it’s injunction. The Superior Court vacated the trial court’s judgement, and injunction was remanded for further proceedings. Superior Court said the courts must ask whether the challenged provisions of injunction burden no more speech than necessary to serve a significant government interest.
The Pennsylvania Constitution of 1776 was the first constitution in the country to protect freedom of speech and writing. The Galapos’ sign posting constituted an act of pure speech. It does not fit the bill of “picketing”.
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.” Tannous v. Cabrini Univ., 697 F. Supp. 3d. 350, 367 (E.D. Pa. 2023). In response, the Galapos erected on their own lawn stationary signs decrying hatred, anti-Semitism, and racism. We have no hesitation in fin ding “[t]hese are concerns of general interest to the Jewish community and the wider public[.]” Id., citing Fenico v. City of Phila., 70 F.4th 151, 165 (3d Cir. 2023) (“[S]peech touching on race relations is inherently of public concern.”) (internal quotations and citation omitted), Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006) (“[C]ommentary on race is, beyond peradventure, within the core protections of the First Amendment.”), and Rybas v. Wapner, 457 A.2d 108, 110 (Pa. Super. 1983) (“Individuals should be able to express their views about the prejudices of others without the chilling effect of a possible lawsuit in defamation resulting from their words.”); see Clark v. Allen, 204 A.2d 42, 46 (Pa. 1964) (“no question or issue has divided the American people” more than “the highly emotional question of racism”); id. at 47 (“It is absolutely essential for the existence and preservation of our Country that opinions on such vitally important and highly controversial issues should be vigorously argued and debated[.]”).
Taking all these principles into account, we hold that although trial courts generally lack the power to enjoin speech under Article I, Section 7, because freedom of speech is not absolute and residents “may legitimately expect the highest degree of privacy known to our society” when inside their homes, Flewellen, 380 A.2d at 1220, and enjoy the “right to require a degree of quietude which is consistent with the standard of comfort prevailing in the locality wherein [they] live[,]” Bedminster Twp., 253 A.2d at 661, courts may enjoin pure speech occurring in the residential context “upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.”
We hold the Galapos engaged in protected speech when they posted in their own yard stationary signs decrying hatred and racism. We further hold the Oberholzers failed to prove that substantial privacy interests are being invaded in an essentially intolerable manner by the Galapos’ pure residential speech. As such, Article I, Section 7 of the Pennsylvania Constitution and this Court’s precedents precluded the trial court from enjoining the signs, regardless of the nature of the torts alleged. The injunction imposed an improper prior restraint on speech in violation of Article I, Section 7. We therefore affirm the Superior Court’s order only insofar as it vacated the injunction entered by the trial court; we reverse the Superior Court’s decision remanding for further proceedings, and instead order the injunction dissolved.
Chief Justice Todd and Justices Donohue and Mundy join the opinion.
Justice Wecht files a dissenting opinion.
Justice Brobson files a dissenting opinion.
