The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Signs Posted Facing Neighbor's Property Enjoined, by Analogy to Residential Picketing


From Oberholzer v. Galapo, which was decided two months ago by the Pennsylvania intermediate appellate court (Judge Carolyn Nichols, joined by Judges Victor Stabile and James Gardner Colins) but just popped up for me on a Westlaw query:

Appellants Simon and Toby Galapo (individually, Appellant Husband and Appellant Wife) appeal from the judgment entered in favor of Appellees Frederick E. Oberholzer, Jr., and Denise L. Oberholzer (individually, Appellee Husband and Appellee Wife)…. [T]he backyards of the parties' respective properties abut each other and are separated by a creek. In November 2014, Appellants allegedly began landscaping their yard during the evening hours in violation of a township noise ordinance. Appellees eventually complained to the township and the evening noises temporarily ceased.

On November 22, 2014, Appellant Husband confronted Appellees about a resurveyed property line. During the ensuing argument, Appellant Husband alleged that Appellee Wife called him a "f***ing Jew." Appellants subsequently filed a police report, but it was determined that no further police action was warranted.

Starting in June 2015, Appellants erected signs on their property, which included primarily anti-hate and anti-racist statements. Appellants' signs contained the following statements:

  1. No Place 4 Racism
  2. Hitler Eichmann Racists
  3. Racists: the true enemies of FREEDOM
  4. No Trespassing—Violators Will Be Prosecuted
  5. Warning! Audio & Video Surveillance On Duty At All Times
  6. Racism = Ignorant
  7. ✡​ Never Again
  8. WWII: 1,500,000 children butchered: Racism
  9. Look Down on Racism
  10. Racist Acts will be met with Signs of Defiance
  11. Racism Against Kids Is Not Strength, It's Predatory
  12. Woe to the Racists. Woe to the Neighbors
  13. Got Racism?
  14. Every Racist Action Must be Met With a Sign of Defiance
  15. Racism is Self-Hating; "Love thy Neighbor as Thyself"
  16. Racism—Ignore It and It Won't Go Away
  17. Racism—The Maximum of Hatred for the Minimum of Reason
  18. RACISM: It's Like a Virus, It Destroys Societies
  19. Racists Don't Discriminate Whom They Hate
  20. Hate Has No Home Here [in multiple languages]
  21. Every Racist Action Must Have an Opposite and Stronger Reaction
  22. Quarantine Racism and Society Has a Chance
  23. Racism Knows No Boundaries

As of June 2016, Appellants posted twenty-three signs on their property, all of which were placed facing towards and in the line of sight of the backyard of Appellees' property.

Appellees sued, and the trial court granted a permanent injunction:

The trial court summarized Appellant Husband's preliminary injunction testimony that the signs targeted Appellees:

[Appellant Husband] testified that the purpose of the signs was "to protest behavior which we perceive as being racist towards myself, my wife, and my family." [Appellant Husband] was also clear that the signs are directed at [Appellees] and their property and would only come down when the racist behavior of [Appellees] as he perceived it ceased. When questioned regarding the position of the signs only being in the backyard facing [Appellees'] home and not anywhere else, [Appellant Husband] indicated that the greatest threat to him and his family with regard to racism was [Appellees]. These beliefs were further cemented during oral arguments regarding the petition to grant a permanent injunction in which [Appellant Husband's] counsel indicated that this was a personal protest for [Appellant Husband] against his backdoor neighbors, [Appellees].

{We add that Appellant Husband also testified that Appellees were racist and that racism led to the killing of the Jewish people. Appellant Husband additionally testified that at least one of the signs could be seen from the sidewalk in front of Appellees' home or anyone driving by Appellees' home. We acknowledge that the trial court did not reference any of this testimony in granting Appellees' request for injunctive relief.}

The trial court concluded that Appellants'

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.

As a result, the trial court ordered Appellants to position their signs in such a way so that they did not face Appellees' property[:] …

  1. The signs posted by [Appellants] on their property are allowed to remain;
  2. 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.

The court's analysis is complicated, but in essence the court treated the signs as tantamount to residential picketing, and the injunction as tantamount to a content-neutral ban on residential picketing, which is permissible if it "'burden[ed] no more speech than necessary to serve' Pennsylvania's right to residential privacy" (see Frisby v. Schultz (1988) and Madsen v. Women's Health Center (1994)). The court remanded to the trial court to decide whether the injunction passed this test, since the trial court judge had applied the slightly less speech-protective test for content-neutral statutes that impose time, place, and manner regulations (under which the laws just have to be "narrowly tailored" to the government interest and leave open ample alternative channels for expression).

Judge Stabile would have simply affirmed the injunction:

The trial court took a very measured and narrow approach to fashioning its injunction to protect Appellees' privacy interest in their home by ordering only that the signs be positioned so as not to face Appellees' property…. The trial court did not ban or seek to modify any content of the offending signs. It did not limit the number of signs or the number of messages that could be posted. No restriction was placed on the time when the signs could be placed, the location of the signs upon Appellants' property, or who may see the signs other than Appellees.

In sum, the only restraint the court imposed upon Appellants' personal protest against Appellees was to construct the signs of opaque material and to face the signs away from Appellees' home…. I cannot fathom a more narrowly tailored remedy under the more stringent standard not to burden speech any more than necessary than that ordered by the trial court. Under these circumstances, I would conclude that the trial court's improper reliance upon a time, place and manner standard to fashion its injunctive remedy was harmless error not warranting a remand….