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Oberholzer v. Galapo, 2022 Pa. Super. LEXIS 169 (April 18, 2022) (Nichols, J.)  Appellants Simon and Toby Galapo appealed from judgment entered in favor of Oberholzer.  It is claimed that the order entered against them was an unconstitutional restraint on their right to free speech.  The Superior Court vacated and remanded for further proceedings.  The parties are neighbors in Abington Township.  They are separated by a creek.  There was a question about where the property line was.  Starting in June 2015, Appellants erected signs on their property including primarily anti-hate and anti-racist statements, but which were clearly intended to be obnoxious.  The court entered an order granting Appellees’ request for permanent injunction in part.  The placement of the signs, said the court, indicated that appellant was targeting specific individuals with the signs that decry their perceived racist behavior.  As a result, the trial court ordered appellants to position their signs in such a way that they do not face Appellees’ property.  The court did not enjoin the content of the signs.  The court wound up amending its order permitting the signs to remain, but again requiring that they be positioned in such a way that they not directly face Appellees’ property.  The parties’ settlement agreement did not bar Appellees from pursuing injunctive relief adverse to Appellants.  The settlement had to do with monetary relief but that Appellees could pursue injunctive relief notwithstanding the money payments.  Instantly, there is no dispute that a permanent injunction can result in a prior restraint on speech. A prior restraint involves an order forbidding future communications. See Alexander, 509 U.S. at 550; Willing, 393 A.2d at 1157; Corbett, 689 A.2d at 979. The instant permanent injunction, however, does not involve a prior restraint on speech. Rather, it addresses the existing signs, i.e., preexisting, and not future, communications: “The signs posted by [Appellants] on their property are allowed to remain” but turned away from Appellees’ property. Because the permanent injunction does not affect future communications, we conclude that Appellants are due no relief on this issue.  The court said that state action is involved since this was a court granting injunctive relief.  The Superior Court concluded that Appellants’ argument that the injunction is content-based is due no relief.


The Instant Trial Court Did Not Apply the Heightened Scrutiny Standard in Enjoining Appellants’ Targeted Speech of Appellees. 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. For these reasons, we vacate the judgment, and vacate the injunction.  Judgment vacated.