Court Reverses Injunction Against Anti-Anti-Semitic Speech Targeted at Neighbor

Galapo’s neighbor Oberholzer called him a “fucking Jew”; the Galapos “posted twenty-three signs” on their property, facing the Oberholzers’ property.

[A.] From today's Pennsylvania Supreme Court majority opinion in Oberholzer v. Galapo, written by Justice Kevin Dougherty, joined by Chief Justice Debra Todd and Justices Christine Donohue and Sallie Updyke Mundy:

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 "fucking Jew."

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 twenty-three 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," and twenty more. The Oberholzers sued, claiming the Galapos' posting of the signs constituted "(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." The trial court ordered the Galapos to move or reorient 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."

Today, the Pennsylvania Supreme Court held the injunction violated the Pennsylvania Constitution's free speech clause. The Court applied its 1978 precedent in Willing v. Mazzacone, which generally suggested that injunctions against speech (in that case, against libel) are unconstitutional prior restraint, and held that it applied to this situation as well. Recent court decisions throughout the country have mostly concluded that the federal First Amendment doesn't prohibit permanent injunctions against speech found to be constitutionally unprotected, for instance because it is libelous. But state courts are entitled to read their state constitutions as more speech-protective than the federal Constitution. A few excerpts from the 57-page opinion:

[1.]

The fact that one purpose of the Galapos' signs was to engage in a "personal protest" against the Oberholzers does not alter this conclusion [that the speech cannot be enjoined]…. 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.

[2.] For purposes of this categorical protection,

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."

And the speech here was on a matter of public concern, even though it stemmed from a private dispute:

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 "[t]hese are concerns of general interest to the Jewish community and the wider public[.]"

[3.] Injunctions might be proper when "substantial privacy interests are being invaded in an essentially intolerable manner," but that high threshold was not met here:

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….

[W]e 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.

[4.] Nor does it matter that the injunction "only ordered the Galapos to turn their signs around and make them opaque rather than take them down entirely": "By preventing the Galapos from directing their message to one of their intended audiences—the Oberholzers—the court violated the Galapos' speech rights."

[B.] Justice Kevin Brobson dissented, arguing that content-neutral injunctions aimed at preventing private nuisances caused by residential speech are constitutional; here's an excerpt (though this opinion is also quite long):

[1.]

[T]he signs were not directed toward the public. Instead, the Galapos erected the signs in their back yard 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. 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….

[2.]

I fail to see how a severe and negative impact upon the well-being, tranquility, and quiet enjoyment of the Oberholzers' home is insufficient to warrant injunctive relief. Surely, the quiet enjoyment of the home is a "substantial privacy interest." The Majority also offers no explanation for how a severe and negative impact on that interest has any meaningful distinction from an "intolerable invasion" of privacy.

[C.] Justice David Wecht dissented as well, also in a long opinion. A few excerpts:

[1.]

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.

[2.]

At the heart of the prior restraint doctrine is the idea that "a free society prefers to punish the few who abuse rights of speech after they break the law [rather] than to throttle them and all others beforehand." Narrowly tailored permanent injunctions do not throttle speakers before they break the law. Rather, they threaten subsequent punishment for repeat lawbreaking.

[3.]

[T]he injunction here also is extremely narrowly tailored to remedy the nuisance without burdening any more of the Galapos' speech than is absolutely necessary. The injunction does not prevent the Galapos from expressing—to the Oberholzers or to anyone else—any of the messages that appear on any of the twenty-three signs. The injunction merely prohibits the Galapos from expressing those views in the exact manner that they had been employing—i.e., the tortious manner, which consisted of a years-long performance involving a rotating assortment of nearly two dozen signs placed along the property line so that they would be visible from inside the Oberholzers' home.

Even with the injunction in place, the Galapos remain free to communicate the messages featured on their signs to the Oberholzers in any other way that they please. They can move the signs to their front yard. They can hang fliers on telephone poles in the neighborhood. They can place bumper stickers on their cars. They can post the messages on a social media application for neighbors. They could even stand on the sidewalk in front of the Oberholzers' home holding the signs. I could go on. The critical point here is that the present injunction is laser-targeted to remedy the nuisance while preserving the Galapos' right to express their thoughts and ideas in a non-tortious manner….

Furthermore, even assuming that the Majority is correct that the Galapos' aim here was at least partially to educate the "local community" on "the consequences of hatred and racism," … [t]he injunction has no impact at all on the Galapos' freedom to speak to the community about anti-Jewish hatred in any of the usual ways that many of us do [citing several articles about anti-Semitism, including by Justice Wecht himself].