Oberholzer, F. v. Galapo, S.

J-A27022-20
2022 PA Super 69FREDERICK E. OBERHOLZER, JR AND : IN THE SUPERIOR COURT OF
DENISE L. OBERHOLZER : PENNSYLVANIA
:
:
v. :
:
:
SIMON AND TOBY GALAPO :
: No. 794 EDA 2020
Appellant :
Appeal from the Judgment Entered April 1, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2016-11267
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
OPINION BY NICHOLS, J.: FILED APRIL 18, 2022
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). Appellants challenge the injunction entered
against them and in favor of Appellees as an unconstitutional restraint on
Appellants’ right to free speech. We vacate and remand for further
proceedings, as set forth in detail below.
Procedural and Factual History
We briefly summarize the relevant facts and procedural history of this
case. Appellants and Appellees are neighbors in Abington Township.
Specifically, the backyards of the parties’ respective properties abut each
*
Retired Senior Judge assigned to the Superior Court.
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other and are separated by a creek. Am. Compl., 7/5/16, at 2-3, R.R. 13a-
14a.1 In November 2014, Appellants allegedly began landscaping their yard
during the evening hours in violation of a township noise ordinance. Id.Appellees eventually complained to the township and the evening noises
temporarily ceased. Id.On November 22, 2014, Appellant Husband confronted Appellees about
a resurveyed property line. Trial Ct. Op. & Order, 9/12/19, at 3, R.R. at 620a.
During the ensuing argument, Appellant Husband alleged that Appellee Wife
called him a “f***ing Jew.” Ex. B to Appellants’ Mot. for Summary J., 7/9/18,
at 4, R.R. at 39a. Appellants subsequently filed a police report, but it was
determined that no further police action was warranted. Trial Ct. Op. & Order,
9/12/19, at 3, R.R. at 620a.
Starting in June 2015, Appellants erected signs on their property, which
included primarily anti-hate and anti-racist statements. Id. 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
1 We may refer to the reproduced record for the parties’ convenience.
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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
Confidential Settlement Agreement, 6/5/19, at 4-5, R.R. at 434a-35a;2 Am.
Compl., at 2-8, R.R. at 13a-19a; Trial Ct. Op., 1/3/20, at 1 n.1, R.R. at 660a;
2Confidential portions of the parties’ settlement agreement are not quoted
and are not at issue.
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see also R.R. at 2b-31b (color photographs of some of the signs at issue).
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. Confidential Settlement Agreement, 6/5/19, at 4-5,
R.R. at 434a-35a; Am. Compl., at 2-8, R.R. at 13a-19a.
On June 7, 2016, Appellees filed a complaint, which they amended on
July 5, 2016. Trial Ct. Op. & Order, 9/12/19, at 3, R.R. at 620a. Appellees
pleaded five causes of action: (1) private nuisance; (2) intrusion upon
seclusion; (3) defamation—libel and slander; (4) intentional infliction of
emotional distress; and (5) publicity placing Appellees in a false light. Am.
Compl., at 1-20, R.R. at 12a-31a. Additionally, Appellees sought a preliminary
and permanent injunction against Appellants from continuing to post their
signs. Id.On August 29, 2016, the parties entered into a consent order in which
Appellants agreed to remove the signs pending the outcome of the hearing for
a preliminary injunction. Trial Ct. Op. & Order, 9/12/19, at 4, R.R. at 621a.
On October 31, 2016, the parties stipulated to extend this consent order. Id.On November 17, 2016, the trial court denied Appellees’ request for a
preliminary injunction. Id.Subsequently, the parties filed cross-motions for summary judgment.
Trial Ct. Op. & Order, 9/12/19, at 4, R.R. at 621a. On September 6, 2018,
the trial court issued a responsive order that granted in part and denied in
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part Appellants’ motion for summary judgment. Order, 9/6/18, R.R. at 429a.
Specifically, the trial court dismissed Appellees’ claim for intrusion on seclusion
and denied Appellants’ motion in all other respects. Id. The trial court also
denied Appellees’ cross-motion for summary judgment. Id.On June 5, 2019, the parties entered into a confidential settlement
agreement resolving the remaining claims at law while leaving the issue of
permanent injunctive relief for the trial court to decide. Trial Ct. Op. & Order,
9/12/19, at 4, R.R. at 621a; Confidential Settlement Agreement, 6/5/19, at
1-12, R.R. at 431a-42a; N.T. Settlement Agreement H’rg, 6/5/19, at 3-4. The
settlement agreement provided, in relevant part, that:
Notwithstanding the provisions in the preceding paragraphs, this
Agreement does not prohibit, limit or affect [Appellees’] rights to
seek and/or pursue their claim in equity for injunctive relief
against [Appellants] in this action (no. 2016-11267) prohibiting
the present and/or future posting of signs on [Appellants’]
property enumerated specifically in paragraph 5 of this
Agreement, including a final decree with respect thereto, which
claim is specifically not released in this Agreement. Although
[Appellants] do not admit any wrongdoing or liability herein,
[Appellants] agree they will not contest [Appellees’] request for
injunctive relief on the grounds [Appellees] have failed to succeed
on the merits of their claim for such relief.
Confidential Settlement Agreement, at 5, R.R. at 435a.
The parties stipulated that the trial court would consider various
deposition transcripts, the preliminary injunction transcript, and selected
exhibits in resolving Appellees’ request for permanent injunctive relief. Trial
Ct. Op. & Order, 9/12/19, at 4-5, R.R. at 621a-22a. On August 13, 2019, the
trial court heard oral argument. N.T., 8/13/19, at 2-97, R.R at 505a-600a.
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On September 12, 2019, the trial court entered an order granting
Appellees’ request for a permanent injunction in part. Trial Ct. Op. & Order,
9/12/19, at 1, R.R. at 618a. 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].
Id. at 8-9, R.R. at 625a-26a (citations omitted); accord Ex. E to Appellants’
Mot. for Summary J., at 41 (agreeing that signs were directed to Appellees
and their property), 47, 54 (testifying that the signs were directed to Appellees
and about the Appellees), 61, R.R. at 244a, 250a, 257a, 264a.3
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
3 We add that Appellant Husband also testified that Appellees were racist and
that racism led to the killing of the Jewish people. Ex. E to Appellants’ Mot.
for Summary J., at 40, 45, R.R. at 243a, 248a. 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. Id. at 35-36, 41,
R.R. at 238a-39a, 244a. We acknowledge that the trial court did not reference
any of this testimony in granting Appellees’ request for injunctive relief.
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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.
Trial Ct. Op. & Order, 9/12/19, at 9, R.R. at 626a. As a result, the trial court
ordered Appellants to position their signs in such a way so that they did not
face Appellees’ property. Id.
The trial court justified the injunction for the following reasons: “(1)
[Appellees] have no adequate remedy at law; and (2) that a greater injury of
a continuing intrusion on [Appellees’] residential privacy will result from
refusing to grant the equitable relief sought and allowing the existing signs to
remain as they are presently positioned on the [Appellants’] property.” Id. at
8, R.R. at 625a. Ultimately, the trial court concluded that because Appellants
infringed on Appellees’ right to privacy and quiet enjoyment of their residential
home, a time, place, and manner restriction on Appellants’ speech was
permissible. Id. at 9-11, R.R. at 626a-28a.
However, the trial court did not enjoin the content of Appellants’ signs
because under Pennsylvania law, “equity lacks the power to enjoin the
publication of defamatory matter where an injunction would be an
unconstitutional prior restraint on freedom of expression.” Id. at 12, R.R. at
629a (citing Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978) (plurality)).
On September 23, 2019, Appellees filed a petition to hold Appellants in
civil contempt in which they asserted that although Appellants had turned the
signs to face the other direction, the text was still visible to Appellees from
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their property. Pet. for Civ. Contempt, 9/23/19, R.R. at 761a-82a. After a
hearing, the trial court did not hold the Appellants in contempt, but on October
11, 2019, the trial court amended its initial order granting the injunction in
part to require Appellants’ signs be constructed of opaque materials. Am.
Order, 10/11/19, R.R. at 631a. The order provided as follows:
A) The signs posted by [Appellants] on their property are allowed
to remain;
B) The signs previously posted on [Appellants’] property shall be
positioned in such a way that they do not directly face [Appellees’]
property; i.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.
Id. (formatting altered).
Meanwhile, Appellants filed a timely motion for post-trial relief on
September 20, 2019.4 Appellants’ Mot. for Post-Trial Relief, 9/20/19, R.R. at
632a-58a. The trial court denied Appellants’ motion for post-trial relief on
January 3, 2020. Order, 1/3/20, R.R. at 659a. The trial court’s order did not
enter judgment. Id. The trial court explained that “when a citizen’s exercise
of their right to freedom of speech substantially impacts another citizen’s
private civil rights, that speech constitutes expressive activity and such
4 “Filing an immediate appeal from an injunction under [Pa.R.A.P.] 311(a)(4)
is not mandatory, and an appellant may elect instead to engage in normal
post-trial procedures and then appeal from a final judgment. See Pa.R.A.P.
311(g).” Thomas A. Robinson Family Ltd. P’ship v. Bioni, 178 A.3d 839,
847 n.11 (Pa. Super. 2017) (Bioni).
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expressive activity may be subject to reasonable time, place and manner
restrictions” and that its injunction contained permissible time, place, and
manner restrictions on Appellants that did not regulate the content of their
signs. Trial Ct. Op., 1/3/20, at 3-4, R.R. at 662a-63a.
Appellants timely filed a notice of appeal on January 9, 2020, and filed
a timely court-ordered Pa.R.A.P. 1925(b) statement. On March 12, 2020, the
trial court filed a Rule 1925(a) opinion that incorporated its January 3, 2020
opinion and order, October 11, 2019 order, and September 12, 2019 opinion
and order. Trial Ct. Op., 3/12/20.
On March 31, 2020, this Court issued a rule to show cause why this
appeal should not be quashed as no judgment had been entered below.
Appellants filed a response to the rule to show cause on April 16, 2020. The
response contained a copy of the trial court docket indicating that judgment
had been entered on April 1, 2020. This Court discharged the rule to show
cause on April 20, 2020. See Order, 4/20/20.
On appeal, Appellant raises the following issues for our review:
1. Did the trial court commit an error of law by improperly
concluding that an injunction was necessary to prevent a
legal wrong for which there is no adequate redress at law?
2. Did the trial court commit an error of law by improperly
concluding that injunctive relief is permissible under Article
I, Section 7 of the Pennsylvania Constitution?
3. Did the trial court commit an error of law by entering a
content-based injunction that is not narrowly tailored to
serve a compelling governmental interest?
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4. Did the trial court commit an error of law by entering an
injunction that fails to further an important or substantial
governmental interest, is not narrowly tailored, and/or does
not leave open ample alternative channels for
communication?
Appellants’ Brief at 4 (formatting altered).
All of Appellant’s issues involve challenges to the trial court’s entry of
permanent injunctive relief. A permanent injunction is a permanent order
requiring an individual or entity to comply with mandatory conditions imposed
by the court. See, e.g., Kuznik v. Westmoreland County Board of
Commissioners, 902 A.2d 476 (Pa. 2006); Thomas A. Robinson Family
Limited Partnership v. Bioni, 178 A.3d 839 (Pa. Super. 2017). Additionally,
a permanent injunction may be granted only where: 1) the party seeking the
injunction has established that its right to relief is clear; 2) an injunction is
necessary to avoid an injury where there no adequate remedy at law, i.e.,
damages will not compensate for the injury; and 3) a greater injury will result
from refusing rather than granting injunctive relief. Kuznik, 902 A.2d at 489
(Pa. 2006); see also Liberty Place Retail Associates, L.P. v. Israelite
School of Universal Practical Knowledge, 102 A.3d 501, 505-06 (Pa.
Super. 2014). Unlike a preliminary injunction, a permanent injunction does
not require proof of immediate irreparable harm. Morgan v. Millstone
Resources Ltd., 267 A.3d 1235, 1249 (Pa. Super. 2021). With these
principles in mind, we now proceed to discuss the merits of Appellants’ claims.
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1. Adequate Remedy at Law
Appellants raise two arguments that the trial court erred by granting a
permanent injunction in favor of Appellees: (1) Appellees have an adequate
remedy at law that precludes any award of injunctive relief, and (2)
regardless, the parties’ settlement agreement permitted Appellants to
challenge Appellees’ request for injunctive relief on two of the three elements
required for a grant of injunctive relief. Id. at 17, 22, 24.
First, Appellants note that the settlement agreement provided that
Appellants would pay Appellees to compensate Appellees “for past, present
and future damages suffered as a result of the posting of the signs.” Id. at
19. Appellants reason that because Appellees have received monetary
compensation, an adequate remedy at law exists. Id. at 20. Appellants
explain that because (1) Appellees have an adequate remedy at law, and (2)
Appellees actually “received an adequate remedy in the form of monetary
compensation,” Appellees “are not entitled to permanent injunctive relief.”
Id. at 20-21.
Second, Appellants further claim that under the parties’ settlement
agreement, Appellants agreed to “refrain from arguing that [Appellees] failed
to satisfy the first requirement for permanent injunctive relief: the clear right
to relief.” Id. at 23-24. Appellants, therefore, reason that they could
challenge whether Appellees proved the other two requirements for
permanent injunctive relief, including the third prong “that greater injury will
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result from refusing [injunctive relief] rather than granting the relief
requested.” Id. at 24. Appellants explain that their remaining issues, which
are based on Article I, Section 7 of the Pennsylvania Constitution,
“undoubtedly contests the merits of injunctive relief” under the third prong.
Id.
Appellees counter that the parties’ settlement agreement expressly
reserved their right to pursue injunctive relief notwithstanding the settlement
and release of all claims at law. Appellees’ Brief at 12. Appellees quote the
clause of the parties’ settlement agreement that Appellants “agree they will
not contest [Appellees’] request for injunctive relief on the grounds
[Appellees] have failed to succeed on the merits of their claim for such relief.”
Id. (formatting altered). The trial court’s opinion did not directly address this
issue.
In reviewing Appellant’s claims, we are guided by the following
principles. In Bioni, we stated the standard of review:
The grant or denial of a permanent injunction is a question of law.
Regarding the trial court’s legal determination, our standard of
review is de novo, and our scope of review is plenary. As in all
equity matters, however, we must accept the trial court’s factual
findings and give them the weight of a jury verdict where they are
supported by competent evidence.
Bioni, 178 A.3d at 843 (citation omitted); see also Madsen v. Women’s
Health Center, Inc., 512 U.S. 753, 765-66 (1994) (discussing standard of
review for content-neutral injunction).
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In Professional Flooring Co. v. Bushar Corp., 152 A.3d 292 (Pa.
Super. 2016), this Court stated the following in construing a settlement
agreement:
The meaning of an unambiguous written instrument presents a
question of law for resolution by the court and is subject to de
novo review. When the words in a writing are unequivocal, the
writing speaks for itself, and a meaning cannot be given to it other
than that expressed.
Moreover, principles of contract law govern the interpretation and
applicability of settlement agreements. Questions of contract
interpretation are matters of law that we review de novo. A court
determines the effect of a release from its language, and we give
language its ordinary meaning unless the parties clearly intended
a different meaning. A release ordinarily covers only such matters
as can fairly be said to have been within the contemplation of the
parties when the release was given. We must read portions of
contractual language interdependently, considering their
combined effects in the totality of the document. Additionally,
specific language controls the general.
Professional Flooring, 152 A.3d at 299-300 (citations omitted and
formatting altered). We add that injunctive relief is an equitable remedy that
“will lie where there is no adequate remedy at law.” SLT Holdings, LLC v.
Mitch-Well Energy, Inc., 249 A.3d 888, 894-95 (Pa. 2021) (citation omitted
and formatting altered).
Here, Appellants’ first argument does not address the import of the
clause in the parties’ settlement agreement:
Agreement does not prohibit, limit or affect [Appellees’] rights to
seek and/or pursue their claim in equity for injunctive relief
against [Appellants] in this action prohibiting the present and/or
future posting of signs on [Appellants’] property . . . , which claim
is specifically not released in this Agreement. Although
[Appellants] do not admit any wrongdoing or liability herein,
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[Appellants] agree they will not contest [Appellees’] request for
injunctive relief on the grounds [Appellees] have failed to succeed
on the merits of their claim for such relief.
R.R. at 435a.
Upon giving the above release language its ordinary meaning, the
parties unequivocally agreed that Appellees could pursue injunctive relief
notwithstanding any monetary payments by Appellants. See Professional
Flooring, 152 A.3d at 299-300. Moreover, Appellants’ argument that
Appellees have an adequate remedy at law and that injunctive relief is an
equitable remedy unavailable in actions at law is meritless. See SLT
Holdings, 249 A.3d at 894-95. In sum, we conclude that the parties’
settlement agreement did not bar Appellees from pursuing injunctive relief
adverse to Appellants.
2. Enjoining Defamation Under the Pennsylvania Constitution
Appellants next argue that an injunction cannot enjoin defamation.
Appellants’ Brief at 25-27. Appellants reason that Article I, Section 7 of the
Pennsylvania Constitution prohibits prior restraints on communication. Id. at
26. Appellants explain that because defamation is a form of communication,
an injunction on defamation is an impermissible prior restraint. Id. at 27
(summarizing Willing, 393 A.2d 1155). Appellants summarize Pennsylvania
federal court cases in support of its position. Id. at 28-32. Appellants
conclude that the instant “restriction of speech via injunction constitutes an
impermissible prior restraint of speech.” Id. at 32. Therefore, Appellants
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argue that the trial court cannot limit their posting of signs on their property,
“even if those signs are defamatory or place [Appellees] in false light.” Id. at
33.
Appellees counter that they did not pursue injunctive relief on
defamation, as Appellees released that claim. Appellees’ Brief at 16. Further,
in Appellees’ view, Appellants’ signs were not “content-driven speech, but
solely to torment and invade” Appellees’ right to privacy and right to seclusion.
Id. at 17. Appellees explain that the injunction is not a prior restraint because
the parties’ settlement agreement explicitly listed the signs that Appellants
agreed Appellees could challenge. Id. at 20. Appellees reiterate the trial
court’s reasoning that Appellants’ signs were a “personal protest” and
therefore not content-driven speech. Id. at 21.
The trial court reasoned that because it did not issue a “blanket
injunction prohibiting all freedom of expression,” it did not impose an
impermissible prior restraint. Trial Ct. Op. & Order, 9/12/19, at 12, R.R. at
629a.
Article I, Section 7 of the Pennsylvania Constitution states in relevant
part that “[t]he free communication of thoughts and opinions is one of the
invaluable rights of man, and every citizen may freely speak, write and print
on any subject, being responsible for the abuse of that liberty. . . .” Pa. Const.
Art. I, § 7. It “provides protection for freedom of expression that is broader
than the federal constitutional guarantee.” Pap’s A.M. v. City of Erie, 812
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A.2d 591, 605 (Pa. 2002) (citations omitted and formatting altered).
Specifically, it “prohibit[s] the imposition of prior restraints upon the
communication of thoughts and opinions, leaving the utterer liable only for an
abuse of the privilege.” William Goldman Theatres, Inc. v. Dana, 173
A.2d 59, 62 (Pa. 1961).
For example, in Phila. Newspapers, Inc. v. Jerome, 387 A.2d 425(Pa. 1978), our Supreme Court defined a prior restraint as a court order that
“prevents publication of information or material in the possession of the press
. . . .” Jerome, 387 A.2d at 432 (citations omitted). A court order that does
“not prevent petitioners from publishing any information in their possession
or from writing whatever they pleased” does “not constitute a prior restraint
upon publication.” Id. at 433 (footnote omitted); accord Commonwealth
v. Genovese, 487 A.2d 364, 366, 369 (Pa. Super. 1985) (holding that a court
order preventing the press “from publishing information obtained during a
public trial,” was a prior restraint).
A prior restraint was also at issue in Willing, in which the defendant
had hired the plaintiffs as her counsel in an underlying lawsuit, who then
obtained a favorable settlement. Willing, 393 A.2d at 1156. The plaintiffs
deducted from the settlement amount the costs of the case, including an
expert witness fee that was actually disbursed to that witness. Id. The
defendant, believing that the plaintiffs wrongfully retained a portion of the
expert witness fee, started marching for several hours each day next to the
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court buildings where plaintiffs practiced. Id. at 1156-57. The defendant
“wore a sandwich-board sign around her neck” asserting that the plaintiffs’
law firm stole money from her, pushed a shopping cart with the American flag,
and “continuously rang a cow bell and blew on a whistle to further attract
attention.” Id. at 1156 (formatting altered).
The plaintiffs moved for injunctive relief against the defendant, which
the trial court granted and enjoined the defendant from “further unlawful
demonstration, picketing, carrying placards which contain defamatory and
libelous statements and or uttering, publishing and declaring defamatory
statements” against plaintiffs. Id. at 1157. The defendant appealed to this
Court, which affirmed but it modified the trial court’s order to enjoin the
defendant from “demonstrating against and/or picketing” plaintiffs by
“uttering or publishing statements to the effect” that plaintiffs stole money
from her. Id. (citation omitted). In other words, the courts enjoined the
defendant from expressing, from that date on forward, her view that plaintiffs
stole money. See id. The defendant appealed to our Supreme Court, which
reversed in a plurality decision. Id. at 1156. The Willing Court reasoned
that the state constitution prohibited prior restraint of even a defamatory
matter. Id. at 1158.
The Pennsylvania state law definition of a “prior restraint” is also
mirrored in federal jurisprudence. For example, in Alexander v. United
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States, 509 U.S. 544 (1993), the United States Supreme Court explained as
follows:
The term prior restraint is used to describe administrative and
judicial orders forbidding certain communications when issued in
advance of the time that such communications are to occur.
Temporary restraining orders and permanent injunctions—i.e.,
court orders that actually forbid speech activities—are classic
examples of prior restraints. This understanding of what
constitutes a prior restraint is borne out by our cases . . . . In
Near v. Minnesota ex rel. Olson, [283 U.S. 697 (1931)], we
invalidated a court order that perpetually enjoined the named
party, who had published a newspaper containing articles found
to violate a state nuisance statute, from producing any future
“malicious, scandalous or defamatory” publication. Id., at 706.
Near, therefore, involved a true restraint on future speech—a
permanent injunction. So, too, did Organization for a Better
Austin v. Keefe, 402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed.2d 1(1971), and Vance v. Universal Amusement Co., 445 U.S. 308,
100 S. Ct. 1156, 63 L. Ed.2d 413 (1980) (per curiam), two other
cases cited by petitioner. In Keefe, we vacated an order
“enjoining petitioners from distributing leaflets anywhere in the
town of Westchester, Illinois.” 402 U.S., at 415, 91 S. Ct., at 1576(emphasis added). And in Vance, we struck down a Texas statute
that authorized courts, upon a showing that obscene films had
been shown in the past, to issue an injunction of indefinite
duration prohibiting the future exhibition of films that have not yet
been found to be obscene. 445 U.S., at 311, 100 S. Ct., at 1158–
1159. See also New York Times Co. v. United States, 403
U.S. 713, 714, 91 S. Ct. 2140, 2141, 29 L. Ed.2d 822 (1971) (per
curiam) (Government sought to enjoin publication of the Pentagon
Papers).
Alexander, 509 U.S. at 550 (emphases in original and formatting altered);
accord Golden Triangle News, Inc. v. Corbett, 689 A.2d 974, 979 (Pa.
Cmwlth. 1997) (Corbett) (holding that “a prior restraint is a prohibition on
speech in advance of its publication or expression, and a restraint must
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unduly burden the expression before it will be in violation of Article I, § 7”
(citation omitted and formatting altered)).5
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. R.R. at 631a. Because the permanent
injunction does not affect future communications, we conclude that Appellants
are due no relief on this issue.6
3. Whether the Injunction is Content-Based or Content-Neutral, i.e.,
Positioning of the Signs to Face Away From Appellees’ Home
We briefly quote the order at issue:
A) The signs posted by [Appellants] on their property are allowed
to remain;
5Although decisions of the Commonwealth Court are not binding on this Court,
they may provide persuasive authority. See Maryland Cas. Co. v. Odyssey,
894 A.2d 750, 756 n.2 (Pa. Super. 2006).
6 We discuss recent Supreme Court and Third Circuit jurisprudence resolving
government restriction of offensive speech, infra. See, e.g., Mahanoy Area
Sch. Dist. v. B. L. by & through Levy, 141 S. Ct. 2038, 2046-47 (2021)
(Mahanoy) (explaining that a student’s vulgar speech criticizing her school
team and coaches was constitutionally protected). As noted elsewhere, more
recent jurisprudence has not balanced a recipient’s right to residential privacy
against unwanted or unrequested speech.
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B) The signs previously posted on [Appellants’] property shall be
positioned in such a way that they do not directly face [Appellees’]
property; i.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.
Am. Order, 10/11/19, R.R. at 631a.
Appellants argue that even if the injunction is not a prior restraint on
their speech, the injunction is content-based. Appellants’ Brief at 33. Because
the injunction is content-based, Appellants assert that the injunction is subject
to a strict scrutiny standard of review, and it fails that review. Id. at 33-34.
Appellants explain that the trial court’s injunction is not content-neutral
because they are prohibited “from communicating specific messages to
[Appellees] because [Appellees] find those messages offensive . . . .” Id. at
36.
Appellees counter that because the court’s injunction does not refer “to
the specific beliefs of [Appellants] on any sign,” the injunction is “prima facie
content neutral.” Appellees’ Brief at 34. Appellees argue that in Klebanoff
v. McMonagle, 552 A.2d 677 (Pa. Super. 1988), this Court “reached a near-
identical holding on content-neutral enjoinment,” by affirming injunctive relief
that prohibited demonstrators from picketing in a public street in front of a
private property. Id.The trial court reasoned that because the injunction was “clear that all
signs, no matter the language or images depicted, may remain but may not
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face or target” Appellees’ property, the injunction was content-neutral. Trial
Ct. Op. & Order, 9/12/19, at 12, R.R. at 629a.
Background
Initially, the general rule is that the government cannot censor offensive
speech in the open/free marketplace of speech. The burden is on the viewer
to avoid offensive speech. Snyder v. Phelps, 562 U.S. 443, 459 (2001);7
Erznoznik v. Jacksonville, 422 U.S. 205, 210-11 (1975); Cohen v.
California, 403 U.S. 15, 21 (1971).
Courts “have long recognized that each medium of expression presents
special First Amendment problems.” F.C.C. v. Pacifica Found., 438 U.S.
726, 748 (1978). “Each method of communicating ideas is a law unto itself
and that law must reflect the differing natures, values, abuses and dangers of
each method.” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501
(1981) (footnote omitted and formatting altered). Therefore, the analytical
7 The Snyder Court explained as follows:
In most circumstances, the Constitution does not permit the
government to decide which types of otherwise protected speech
are sufficiently offensive to require protection for the unwilling
listener or viewer. Rather, the burden normally falls upon the
viewer to avoid further bombardment of his sensibilities simply by
averting his eyes. As a result, the ability of government,
consonant with the Constitution, to shut off discourse solely to
protect others from hearing it is dependent upon a showing that
substantial privacy interests are being invaded in an essentially
intolerable manner.
Snyder, 562 U.S. at 459 (citations omitted and formatting altered).
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framework for billboards may or may not be identical to the framework for
school speech, signs, a gag order, or picketing. Compare id., with
Mahanoy, 141 S. Ct. at 2044-45; City of Ladue v. Gilleo, 512 U.S. 43, 48
(1994) (Gilleo);8 S.B. v. S.S., 243 A.3d 90, 104 (Pa. 2020); Klebanoff, 552
A.2d at 678; see also SmithKline Beecham Corp. v. Stop Huntingdon
Animal Cruelty USA, 959 A.2d 352, 356-57 (Pa. Super. 2008)
(SmithKline).
Further, the subject matter of the speech may modify the analytical
framework. For example, “speech on matters of public concern is at the heart
of the First Amendment’s protection.” Snyder, 562 U.S. at 451-52 (citation
8In Gilleo, the High Court noted the distinctive problems presented by a
municipal ordinance banning almost all outdoor signs on private property:
While signs are a form of expression protected by the Free Speech
Clause, they pose distinctive problems that are subject to
municipalities’ police powers. Unlike oral speech, signs take up
space and may obstruct views, distract motorists, displace
alternative uses for land, and pose other problems that
legitimately call for regulation. It is common ground that
governments may regulate the physical characteristics of signs—
just as they can, within reasonable bounds and absent censorial
purpose, regulate audible expression in its capacity as noise.
However, because regulation of a medium inevitably affects
communication itself, it is not surprising that we have had
occasion to review the constitutionality of municipal ordinances
prohibiting the display of certain outdoor signs.
Gilleo, 512 U.S. at 48 (citations omitted). The Gilleo Court noted that “a
person who puts up a sign at her residence often intends to reach neighbors,
an audience that could not be reached nearly as well by other means.” Id. at
57 (emphasis in original and footnote omitted). In any event, as discussed
infra, a municipal ordinance differs from an injunction.
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omitted and formatting altered). Speech on matters of private concern, in
contrast, are subject to lesser protections.9 Id. at 452.
9 The Snyder Court explained as follows:
The First Amendment reflects a profound national commitment to
the principle that debate on public issues should be uninhibited,
robust, and wide-open. That is because speech concerning public
affairs is more than self-expression; it is the essence of self-
government. Accordingly, speech on public issues occupies the
highest rung of the hierarchy of First Amendment values, and is
entitled to special protection.
Not all speech is of equal First Amendment importance, however,
and where matters of purely private significance are at issue, First
Amendment protections are often less rigorous. That is because
restricting speech on purely private matters does not implicate the
same constitutional concerns as limiting speech on matters of
public interest: There is no threat to the free and robust debate of
public issues; there is no potential interference with a meaningful
dialogue of ideas; and the threat of liability does not pose the risk
of a reaction of self-censorship on matters of public import.
Snyder, 562 U.S. at 452 (citations omitted and formatting altered).
Different limitations also apply to obscene or commercial speech. See
Davenport, 551 U.S. at 188 (stating, “[f]or example, speech that is obscene
or defamatory can be constitutionally proscribed because the social interest in
order and morality outweighs the negligible contribution of those categories
of speech to the marketplace of ideas.” (citation omitted)); Cent. Hudson
Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557,
563 (1980) (holding the “Constitution . . . accords a lesser protection to
commercial speech” (citation omitted)).
In Mahanoy, for example, the United States Supreme Court explained that
the speech at issue was not obscene:
Consider B.L.’s speech. Putting aside the vulgar language, the
listener would hear criticism, of the team, the team’s coaches, and
the school—in a word or two, criticism of the rules of a community
of which B.L. forms a part. This criticism did not involve features
that would place it outside the First Amendment’s ordinary
protection. B.L.’s posts, while crude, did not amount to fighting
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In addition to the subject matter of the speech, the nature of the forum
at issue may alter the analytical framework. See S.B., 243 A.3d at 104
(noting, “First Amendment freedoms must be applied in light of the special
characteristics of the relevant environment” (citation omitted and formatting
altered)); see also Davenport v. Washington Educ. Ass’n, 551 U.S. 177,
189 (2007) (stating it is “black-letter law that, when the government permits
speech on government property that is a nonpublic forum, it can exclude
speakers on the basis of their subject matter” (citation omitted)); Gilleo, 512
U.S. at 58 (noting a “special respect for individual liberty in the home has long
been part of our culture and our law; that principle has special resonance
when the government seeks to constrain a person’s ability to speak there”
(emphasis in original and citations omitted)); see generally Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983). For example,
“the constitutional rights of students in public school are not automatically
coextensive with the rights of adults in other settings.” Morse v. Frederick,
551 U.S. 393, 404-05 (2007); accord Mahanoy, 141 S. Ct. at 2044-45.
words. And while B.L. used vulgarity, her speech was not obscene
as this Court has understood that term. To the contrary, B.L.
uttered the kind of pure speech to which, were she an adult, the
First Amendment would provide strong protection.
Mahanoy, 141 S. Ct. at 2046-47 (citations omitted).
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The right to free speech also includes the right to listen to or receive
speech.10 Snyder, 562 U.S. at 459-60; Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976)
(stating, “freedom of speech presupposes a willing speaker. But where a
speaker exists . . . the protection afforded is to the communication, to its
source and to its recipients both” (formatting altered)); accord PG Pub. Co.
v. Aichele, 705 F.3d 91, 100 n.9 (3d Cir. 2013). Additionally, Pennsylvania
recognizes a right to privacy that includes the right to be free from unwanted
10In Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457
U.S. 853 (1982), the Supreme Court of the United States explained that
the State may not, consistently with the spirit of the First
Amendment, contract the spectrum of available knowledge. In
keeping with this principle, we have held that in a variety of
contexts the Constitution protects the right to receive information
and ideas. This right is an inherent corollary of the rights of free
speech and press that are explicitly guaranteed by the
Constitution, in two senses. First, the right to receive ideas
follows ineluctably from the sender’s First Amendment right to
send them: The right of freedom of speech and press embraces
the right to distribute literature, and necessarily protects the right
to receive it. The dissemination of ideas can accomplish nothing
if otherwise willing addressees are not free to receive and consider
them. It would be a barren marketplace of ideas that had only
sellers and no buyers.
More importantly, the right to receive ideas is a necessary
predicate to the recipient’s meaningful exercise of his own rights
of speech, press, and political freedom.
Pico, 457 U.S. at 866-67 (emphases in original, citations omitted, and
formatting altered).
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speech, which we discuss in further detail, infra. See Klebanoff, 552 A.2d at
679.
Instantly, the alleged state action at issue, the trial court’s order
granting a permanent injunction, may change the analytical framework. For
example, the analysis for a municipal ordinance is different than the analysis
for a court injunction. Madsen, 512 U.S. at 764; see also Gilleo, 512 U.S.
at 50-51 (discussing the two analyses for challenging a municipal ordinance
regulating signs on private property).
Standard of Review
The “standard of review is de novo and our scope of review is plenary.”
S.B., 243 A.3d at 104 (citation omitted). “In conducting our inquiry, we
acknowledge that in cases raising First Amendment issues an appellate court
has an obligation to make an independent examination of the whole record in
order to make sure that the judgment does not constitute a forbidden intrusion
on the field of free expression.” Id. (citation omitted and formatting altered).
We next summarize the applicable law addressing the existence of a state
action and resolving whether a state action is content-based or content-
neutral.
Existence of a State Action
The First Amendment “prohibits only governmental abridgment of
speech. [It] does not prohibit private abridgment of speech.” Manhattan
Comm’n Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (emphases
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in original and citations omitted); see also Crozer Chester Medical Ctr. v.
May, 506 A.2d 1377, 1380 (Pa. Super. 1986). Article I, section 7 of the
Pennsylvania Constitution similarly prohibits governmental “intrusion upon an
individual’s right of free speech.” W. Pa. Socialist Workers 1982
Campaign v. Conn. Gen. Life Ins. Co., 485 A.2d 1, 6 (Pa. Super. 1984)
(stating “there is no historical basis for concluding that the framers of the
[Pennsylvania] Constitution intended to reach the owners of purely private
property when they adopted the original free speech provisions of the
Constitution” (footnote omitted and formatting altered)). Therefore, the
threshold inquiry is whether a state action is at issue. Halleck, 139 S. Ct. at
1930. A state action includes a court order that infringes upon speech and is
issued at the request of a private party in a civil lawsuit. See, e.g., Madsen,
512 U.S. at 764; New York Times Co. v. Sullivan, 376 U.S. 254, 265
(1964). Based on the foregoing, we conclude that the instant trial court’s
order granting a permanent injunction constitutes state action.
Whether the Governmental Restriction on Speech
is Content-Based or Content-Neutral
Next, we examine whether the state action restricting speech, such as
a court order, is content-based or content-neutral. See Madsen, 512 U.S. at
763; see generally United States v. O’Brien, 391 U.S. 367 (1968). In
determining whether a court order restricting speech is content-based or
content-neutral, our Supreme Court provided the following guidance:
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It is well-established that content-based restrictions on speech are
presumptively unconstitutional and are subject to the strict
scrutiny standard, which requires the government to prove that
the restrictions are narrowly tailored to serve a compelling state
interest. Government regulation of speech is content based if a
law applies to a particular speech because of the topic discussed
or the idea or message expressed.
Determining whether a particular restriction on speech is content
based or content neutral is not always a simple endeavor. A
restriction is content based if either the face of the regulation or
the purpose of the regulation is based upon the message the
speaker is conveying.
To the contrary, regulations that are unrelated to the content of
speech are subject to an intermediate level of scrutiny because in
most cases they pose a less substantial risk of excising certain
ideas or viewpoints from the public dialogue.
* * *
The High Court has explained that the principal inquiry in
determining content neutrality, in speech cases generally and in
time, place, or manner cases in particular, is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys.
S.B., 243 A.3d at 104-06 (citations and footnote omitted and formatting
altered); accord Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)
(stating, “government regulation of speech is content based if a law applies
to particular speech because of the topic discussed or the idea or message
expressed” (citations omitted and formatting altered)).
“The government’s purpose of the speech restriction is the controlling
consideration and, if the purpose is unrelated to the expression of content,
the restriction is deemed neutral, even though the speech restriction may
have an incidental effect on some speakers or messages, but not others.”
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S.B., 243 A.3d at 106 (citation omitted); see also Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (noting that “the government’s purpose is
the controlling consideration” (formatting altered)); accord Friends of
Danny DeVito v. Wolf, 227 A.3d 872, 902 (Pa. 2020). “A regulation that
serves purposes unrelated to the content of expression is deemed neutral,
even if it has an incidental effect on some speakers or messages but not
others. Government regulation of expressive activity is content neutral so
long as it is justified without reference to the content of the regulated
speech.” Ward, 491 U.S. at 791 (emphasis in original, citations omitted, and
formatting altered).
As our Supreme Court observed, “[d]etermining whether a particular
restriction on speech is content based or content neutral is not always a simple
endeavor.” S.B., 243 A.3d at 105. For example,
laws that confer benefits or impose burdens on speech without
reference to the ideas or views expressed are in most instances
content neutral. See, e.g., Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.
Ct. 2118, 2128, 80 L. Ed.2d 772 (1984) (ordinance prohibiting the
posting of signs on public property “is neutral—indeed it is silent—
concerning any speaker’s point of view”)
Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994)
(Turner).
When an injunction restricts the expression of a speaker, that speaker
may argue that because the restriction affects the speaker or message, the
restriction must be content-based. Courts, however, have rejected that
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argument. For example, in Madsen, an injunction case, the United States
Supreme Court rejected the petitioners’ argument that because the court’s
injunction affected only them, the injunction must be content-based:
We begin by addressing petitioners’ contention that the state
court’s order, because it is an injunction that restricts only the
speech of antiabortion protesters, is necessarily content or
viewpoint based. Accordingly, they argue, we should examine the
entire injunction under the strictest standard of scrutiny. We
disagree. To accept petitioners’ claim would be to classify
virtually every injunction as content or viewpoint based.
An injunction, by its very nature, applies only to a particular group
(or individuals) and regulates the activities, and perhaps the
speech, of that group. It does so, however, because of the
group’s past actions in the context of a specific dispute between
real parties. The parties seeking the injunction assert a violation
of their rights; the court hearing the action is charged with
fashioning a remedy for a specific deprivation, not with the
drafting of a statute addressed to the general public.
Madsen, 512 U.S. at 762 (citation omitted and emphases added).
In Schenck v. Pro-Choice Network of W. New York, 519 U.S. 357(1997), the High Court resolved a similar issue that also involved injunctive
relief. The Schenck Court reasoned that “in assessing a First Amendment
challenge, a court looks not only at the private claims asserted in the
complaint, but also inquires into the governmental interests that are protected
by the injunction, which may include an interest in public safety and order.”
Schenck, 519 U.S. at 375 (citations omitted). The injunction at issue had a
“cease and desist” provision that prevented petitioners from speaking with
individuals who indicated they did not want to be “counseled” “in an attempt
to persuade them not to get an abortion.” Id. at 363-64. The petitioners
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argued that the “cease and desist” provision was “content based, because it
allow[ed] a clinic patient to terminate a protester’s right to speak based on,
among other reasons, the patient’s disagreement with the message being
conveyed.” Id. at 384. Like the Madsen Court, the Schenck Court rejected
the petitioners’ argument because the injunction was directed only against the
petitioners and was a direct result of the petitioners’ past actions. Id. at 384-
85; see also Bruni v. City of Pittsburgh, 941 F.3d 73, 87 (3d. Cir. 2019)
(holding that an ordinance, which banned congregating, patrolling, picketing,
and demonstrating outside health care facilities, was content-neutral because
regulations of those acts are “based on the manner in which expressive
activity occurs, not its content”).
In Klebanoff, this Court affirmed a permanent injunction that
prevented the defendants “from picketing or demonstrating in the street
directly in front of” the plaintiff’s home. Klebanoff, 552 A.2d at 677. The
Klebanoff Court first acknowledged that public streets and sidewalks are
public fora. Id. at 678. The Court reasoned that because the permanent
injunction banned all picketing of the plaintiff’s “house without reference to
the content or subject matter of the protest,” the injunction was content-
neutral. Id. at 678-79. The Klebanoff Court, as discussed infra, also
acknowledged Pennsylvania’s substantial interest in protecting an individual’s
right to privacy of one’s home. Id. at 679. The Court summarized the
evidence that the plaintiff’s right to privacy was intruded upon and held the
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injunction was constitutionally permissible. Id.; see also Schenck, 519 U.S.
at 375 (holding that courts, when issuing an injunction, must examine the
governmental interests involved).
In SmithKline, this Court similarly addressed injunctive relief that
banned the defendants from “picketing, demonstrating, leafleting, protesting
or congregating” at the plaintiffs’ homes, among other places.11 SmithKline,
959 A.2d at 356. The SmithKline Court noted that the injunction was like
the injunction in Klebanoff and was similarly content-neutral:
This means the speech is not regulated due to a disagreement
with the message conveyed. A restriction on speech that is not
content based is still considered neutral even if it might affect
some speakers or messages and not others. The . . . injunction,
on its face, does not seek to ban any subject matter from being
protested. The purpose in enacting the restrictions is to prevent
the excessive tactics used by the protesters, not to stifle the
message itself.
Id. at 356 n.2 (citations omitted); see also id. at 357 (citing Madsen, 512
U.S. at 765).12
But even if the court’s order appears content-neutral on its face, we
must determine whether “it is nevertheless a content-based regulation of
11 SmithKline also involved injunctive relief granted in favor of the plaintiffs’
employer, as well as the individual plaintiffs, who were employees.
SmithKline, 959 A.2d at 356. For ease of discussion, when we refer to the
plaintiffs, we refer to the individual plaintiffs.
12The defendants did not argue that the injunction was content-based, but
the SmithKline addressed whether the injunction was content-based or
content-neutral. Id. at 356 n.2
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speech because it cannot be justified without reference to the content of the
regulated speech.” Reed, 576 U.S. at 164 (explaining that, “our precedents
have also recognized a separate and additional category of laws that, though
facially content neutral, will be considered content-based regulations of
speech: laws that cannot be justified without reference to the content of the
regulated speech, or that were adopted by the government because of
disagreement with the message the speech conveys” (citation omitted and
formatting altered)); see also Ward, 491 U.S. at 791. The government’s
intent or motive is not a factor. Simon & Schuster, Inc. v. Members of
New York State Crime Victims Bd., 502 U.S. 105, 117 (1991) (holding
evidence of improper motive or illicit “intent is not the sine qua non of a
violation of the First Amendment”). Having summarized the applicable law,
we turn to the instant state action at issue.
The Instant Order is Facially Content-Neutral
Here, state action is involved, as the trial court issued, at Appellees’
request, injunctive relief that specifically ordered Appellants to position the
signs away from Appellees’ property with the front of the signs not visible to
Appellees. Order, 9/12/19, at 1; see, e.g., Madsen, 512 U.S. at 764;
Sullivan, 376 U.S. at 265; Klebanoff, 552 A.2d at 677. The trial court
specified that the justification of the order is to protect Appellees’ “right of
residential privacy.” Trial Ct. Op., 9/12/19, at 12.
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Like the injunctions in SmithKline and Klebanoff that enjoined all
picketing or demonstrating in front of the plaintiffs’ homes, the instant
injunction was also, on its face, content-neutral as it was “without reference
to the content or subject matter” of the signs. See SmithKline, 959 A.2d at356 n.2; Klebanoff, 552 A.2d at 678. Identical to the injunctions in
SmithKline and Klebanoff, the justification of the instant injunction was to
ensure Appellees’ constitutional right of residential privacy. See SmithKline,
959 A.2d at 357-59; Klebanoff, 552 A.2d at 679. The instant order, to
paraphrase Ward, serves a purpose unrelated to the content of the signs at
issue. See Ward, 491 U.S. at 791; see also Turner, 512 U.S. at 643; S.B.,
243 A.3d at 105-06. In sum, the trial court’s order is facially content-neutral,
as it is unrelated to the content of the speech. See S.B., 243 A.3d at 105-
06.
However, under Reed, we must also examine whether the trial court’s
injunction order, although “facially content neutral,” can be “justified without
reference to the content of the regulated speech.” See Reed, 576 U.S. at
164 (citation omitted and formatting altered). As set forth above, the trial
court ordered that Appellants’ signs face away from and not be otherwise
visible to Appellees. In SmithKline, the injunction barred the defendants
from protesting within 100 feet of the plaintiffs’ homes. See SmithKline, 959
A.2d at 355. In Klebanoff, the injunction enjoined the defendants from
protesting in front of the plaintiff’s home. See Klebanoff, 552 A.2d at 677.
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Both Courts justified the injunction on the basis that the plaintiffs’ right
to residential privacy was violated. See SmithKline, 959 A.2d at 357-59;
Klebanoff, 552 A.2d at 679. Because a complete bar on protesting without
reference to the content of the defendant’s speech was held to be a content-
neutral restriction, it follows that a similar restriction preventing Appellants’
signs from being seen because it violated Appellees’ right to residential
privacy, is also content-neutral.13 See SmithKline, 959 A.2d at 356-59;
Klebanoff, 552 A.2d at 678-79, 682.
Furthermore, the United States Supreme Court has rejected Appellants’
argument that because the injunction restricts speech that Appellees find
offensive, the injunction must be content-based. See Madsen, 512 U.S. at
762; accord Schenck, 519 U.S. at 384; cf. Bruni, 941 F.3d at 87. The
Madsen Court, as discussed above, rejected the antiabortion protestors’
argument that because the injunction restricted their speech, the injunction
was “necessarily content or viewpoint based.” Madsen, 512 U.S. at 762. To
accept that argument, the High Court ruled, “would be to classify virtually
every injunction as content or viewpoint based” even if the injunction affects
speech. Id.; accord Schenck, 519 U.S. at 384 (holding that an injunction’s
13 We acknowledge that the mode of expression in SmithKline and
Klebanoff, i.e., picketing or demonstrating on public fora, differs from the
instant mode of expression, i.e., posting of signs on private property. See
Gilleo, 512 U.S. at 45. But our focus at this stage is whether the order is
content-neutral or content-based. Whether the instant trial court’s injunction
passes constitutional muster is discussed infra.
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“cease and desist” provision was content-neutral despite banning the speech
of only antiabortion protestors). Therefore, we conclude Appellants’ argument
that the injunction is content-based is due no relief. We next address whether
the trial court’s injunction passes constitutional scrutiny.
4. Whether the Injunction, Even If Content-Neutral, Fails Scrutiny
Appellants lastly argue that even if the injunction is content-neutral, it
still fails. Appellants’ Brief at 39. Appellants assert that the injunction fails to
further a significant governmental interest by distinguishing the three cases
the trial court relied on: Frisby v. Schultz, 487 U.S. 474 (1988), Klebanoff,
and Rouse Phila. Inc. v. Ad Hoc ’78, 417 A.2d 1248 (Pa. Super. 1979)
(Rouse). Id. at 40-47.
Appellants also argue that the injunction, even if it furthers a significant
governmental interest, is not narrowly tailored. Id. at 51. Appellants reason
that the trial court’s injunction cannot be both content-neutral and narrowly
tailored. Id. Appellants assert that a content-neutral injunction “must leave
open ample alternative means of communication.” Id. at 53. In their view,
the trial court’s injunction did not leave Appellants those alternative means of
communication. Id. Appellants point out that the right to free speech protects
both the speaker’s ability to convey their message and the speaker’s ability to
ensure the message reaches the intended recipients. Id. Appellants therefore
reason that if they cannot post signs protesting Appellees’ anti-Semitic
behavior in a manner that can be seen by the intended recipients, i.e.,
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Appellees, Appellants have no alternative means of communicating their
message. Id. at 54-55.
Appellees counter that Appellants’ signs are an “unwanted invasion of
[their] privacy in the occupancy of their home.” Appellees’ Brief at 31.
Appellees assert that all they see from the back of their home and backyard
are Appellants’ signs. Id. at 32. Appellees claim they stopped using their
backyard and are afraid to go outside. Id. In Appellees’ view, the trial court
correctly adhered to the reasoning of Klebanoff and Rouse. Id. at 33.
Appellees contend that Appellants have ample alternatives means of
communicating their speech. Id. at 35.
The trial court, relying on Klebanoff, Rouse, and Frisby, reasoned that
Appellants’ actions violated Appellees’ right to residential privacy. Trial Ct.
Op., 9/12/19, at 9-12, R.R. at 626a-29a. Critically, the trial court asserted
that its time, place, and manner restrictions were proper. Id. at 9, R.R. at
626a. In the trial court’s view, its injunction was narrowly tailored because
Appellants are “free to continue to post signs on [their] property with any
message [they] deem[] appropriate so long as they do not target or face”
Appellees’ property. Id. at 11, R.R. at 628a. We next summarize the
applicable law.
Background
Generally, governmental regulations of speech “that are unrelated to
the content of speech are subject to an intermediate level of scrutiny because
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in most cases they pose a less substantial risk of excising certain ideas or
viewpoints from the public dialogue.” S.B., 243 A.3d at 105 (citation omitted).
For example, a gag order may be constitutional if it complies with the well-
settled O’Brien test.14 See id. (summarizing the four-part O’Brien test).
14In S.B., our Supreme Court addressed the constitutionality of a court order,
specifically, a gag order that prohibited a party and her counsel from speaking
publicly about the case. Id. at 100.
A content-neutral regulation of speech passes constitutional
muster if it satisfies the following four-part standard set forth by
the High Court in United States v. O’Brien, [391 U.S. 367(1968)]: (1) the regulation was promulgated within the
constitutional power of government; (2) the regulation furthers an
important or substantial governmental interest; (3) the
government interest is unrelated to the suppression of free
expression; and (4) the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest.
So long as the regulation of speech is not a means, subtle or
otherwise, of exercising content preference, it is not presumed
invalid.
Restrictions on the time, place and manner of expression, whether
oral, written or symbolized by conduct, are a form of a content-
neutral regulation of speech. These restrictions may make it more
difficult for an individual to engage in a desired speech-related
activity by targeting, inter alia, the means of speech or the method
of communication, but they do not target the content of the
message ultimately conveyed. Time, place, and manner
restrictions are valid, provided that they: (1) are justified without
reference to the content of the regulated speech; (2) are narrowly
tailored to serve a significant governmental interest unrelated to
speech; and (3) leave open ample alternative channels for
communication of the information.
See S.B., 243 A.3d at 105-06 (most citations and footnote omitted); see also
Gilleo, 512 U.S. at 56-59 (rejecting the time, place, and manner restriction
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An injunction, however, requires a “more stringent application of
general First Amendment principles” than the O’Brien test. Madsen, 512
U.S. at 765. In Madsen, the United States Supreme Court explained why a
court injunction was subject to greater scrutiny than a legislative ordinance:
If this were a content-neutral, generally applicable statute,
instead of an injunctive order, its constitutionality would be
assessed under the standard set forth in Ward . . . , and similar
cases. Given that the forum around the clinic is a traditional public
forum, see Frisby . . . , we would determine whether the time,
place, and manner regulations were narrowly tailored to serve a
significant governmental interest.
There are obvious differences, however, between an injunction
and a generally applicable ordinance. Ordinances represent a
legislative choice regarding the promotion of particular societal
interests. Injunctions, by contrast, are remedies imposed for
violations (or threatened violations) of a legislative or judicial
decree. Injunctions also carry greater risks of censorship and
discriminatory application than do general ordinances. There is
no more effective practical guaranty against arbitrary and
unreasonable government than to require that the principles of
law which officials would impose upon a minority must be imposed
generally. Injunctions, of course, have some advantages over
generally applicable statutes in that they can be tailored by a trial
judge to afford more precise relief than a statute where a violation
of the law has already occurred.
We believe that these differences require a somewhat more
stringent application of general First Amendment principles in
this context. In past cases evaluating injunctions restricting
speech, we have relied upon such general principles while also
seeking to ensure that the injunction was no broader than
necessary to achieve its desired goals. Our close attention to the
fit between the objectives of an injunction and the restrictions it
imposes on speech is consistent with the general rule, quite apart
from First Amendment considerations, that injunctive relief should
on ordinance banning nearly all signs on private property because it failed to
provide alternative mediums of communication).
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be no more burdensome to the defendant than necessary to
provide complete relief to the plaintiffs. Accordingly, when
evaluating a content-neutral injunction, we think that our
standard time, place, and manner analysis is not
sufficiently rigorous. We must ask instead whether the
challenged provisions of the injunction burden no more speech
than necessary to serve a significant government interest.
Id. at 764-65 (footnote and most citations omitted, formatting altered, and
emphases added); accord SmithKline, 959 A.2d at 356-57. We discuss
Madsen in further detail, infra.15
Significant Governmental Interest of Residential Privacy
As the Madsen Court set forth above, an injunction must serve a
significant governmental interest. Although the general rule is that the burden
is on the viewer to avoid offensive speech, one exception to that general rule
is when that speech is unwanted and uninvited in the viewer’s home. Sorrell
v. IMS Health Inc., 564 U.S. 552, 575 (2011) (holding that “personal privacy
even in one’s own home receives ample protection from the resident’s
unquestioned right to refuse to engage in conversation with unwelcome
visitors” (citation omitted and formatting altered)). This is known as the
captive audience doctrine. Snyder, 562 U.S. at 459 (explaining that “as a
general matter, we have applied the captive audience doctrine only sparingly
to protect unwilling listeners from protected speech” (formatting altered)).
The protection of one’s personal, residential privacy, i.e., a captive audience,
15 Madsen was filed after this Court’s decisions in Klebanoff and Rouse.
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is considered a significant governmental interest, which the SmithKline and
Klebanoff Courts recognized exists in Pennsylvania. See Frisby, 487 U.S.
at 484; SmithKline, 959 A.2d at 357; Klebanoff, 552 A.2d at 679, 681; cf.
Gilleo, 512 U.S. at 54 (noting that the municipal ordinance that nearly
completely banned signs posted on private property, almost “foreclosed a
venerable means of communication”; the signs at issue, however, were not
directed to a captive audience).
In Frisby, the plaintiffs were anti-abortion activists who picketed on a
public street outside a doctor’s home in the town of Brookfield, Wisconsin.
Frisby, 487 U.S. at 476. Subsequently, the town enacted an ordinance
banning all residential picketing, specifically, “It is unlawful for any person to
engage in picketing before or about the residence or dwelling of any individual
in the Town of Brookfield.”16 Id. at 477 (citation omitted). The ordinance
stated that its primary purpose was
16 The Frisby Court defined “picketing” as “posting at a particular place, a
characterization in line with viewing the ordinance as limited to activity
focused on a single residence.” Frisby, 487 U.S. at 482. “Picketing” has also
been defined as follows:
The demonstration by one or more persons outside a business or
organization to protest the entity’s activities or policies and to
pressure the entity to meet the protesters’ demands; esp., an
employees’ demonstration aimed at publicizing a labor dispute
and influencing the public to withhold business from the employer.
Black’s Law Dictionary (11th ed. 2019). The conduct at issue in Rouse falls
within this definition.
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the protection and preservation of the home’ through assurance
that members of the community enjoy in their homes and
dwellings a feeling of well-being, tranquility, and privacy [and
because] the practice of picketing before or about residences and
dwellings causes emotional disturbance and distress to the
occupants and has as its object the harassing of such occupants.
Id. (citations omitted and formatting altered).17
The Frisby Court explained that a significant government interest is the
protection of residential privacy:
The State’s interest in protecting the well-being, tranquility, and
privacy of the home is certainly of the highest order in a free and
civilized society. Our prior decisions have often remarked on the
unique nature of the home, the last citadel of the tired, the weary,
and the sick, and have recognized that preserving the sanctity of
the home, the one retreat to which men and women can repair to
escape from the tribulations of their daily pursuits, is surely an
important value.
One important aspect of residential privacy is protection of the
unwilling listener. Although in many locations, we expect
individuals simply to avoid speech they do not want to hear, the
home is different. That we are often captives outside the
sanctuary of the home and subject to objectionable speech does
not mean we must be captives everywhere. Instead, a special
benefit of the privacy all citizens enjoy within their own walls,
which the State may legislate to protect, is an ability to avoid
17 The plaintiffs sued the town and other defendants, and moved for
preliminary injunctive relief, which the district court granted. Frisby, 487
U.S. at 478. The appellate court ultimately affirmed, and the High Court
granted the defendants’ petition for certiorari. Id. at 479.
Initially, the Frisby Court held that the speech at issue was on an issue of
public concern, and therefore presumptively protected speech. Id. The
Frisby Court then identified the forum at issue, which was the town’s public
streets. Id. at 479-80. The Frisby Court did not challenge the lower courts’
prior holdings that the ordinance was content-neutral. Id. at 482. The Frisby
Court therefore examined whether the ordinance was narrowly tailored to
serve a significant governmental interest. Id.- 42 -
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intrusions. Thus, we have repeatedly held that individuals are not
required to welcome unwanted speech into their own homes and
that the government may protect this freedom.
This principle is reflected even in prior decisions in which we have
invalidated complete bans on expressive activity, including bans
operating in residential areas. In all such cases, we have been
careful to acknowledge that unwilling listeners may be protected
when within their own homes. In [Schneider v. State of New
Jersey (Town of Irvington), 308 U.S. 147, 162-63 (1939)], for
example, in striking down a complete ban on handbilling,[18] we
spoke of a right to distribute literature only to one willing to
receive it. Similarly, when we invalidated a ban on door-to-door
solicitation in [Martin v. Struthers, 319 U.S. 141 (1943)], we
did so on the basis that the homeowner could protect himself from
such intrusion by an appropriate sign that he is unwilling to be
disturbed. We have never intimated that the visitor could insert
a foot in the door and insist on a hearing. There simply is no right
to force speech into the home of an unwilling listener.
Frisby, 487 U.S. at 484-85 (some citations omitted and formatting altered).19
18 Handbilling is the distribution, by hand, of literature, such as
advertisements. Schneider, 308 U.S. at 154.
19 The Frisby Court therefore held as follows:
The First Amendment permits the government to prohibit
offensive speech as intrusive when the captive audience cannot
avoid the objectionable speech. The target of the focused
picketing banned by the Brookfield ordinance is just such a
captive. The resident is figuratively, and perhaps literally, trapped
within the home, and because of the unique and subtle impact of
such picketing is left with no ready means of avoiding the
unwanted speech. Thus, the evil of targeted residential picketing,
the very presence of an unwelcome visitor at the home, is created
by the medium of expression itself. Accordingly, the Brookfield
ordinance’s complete ban of that particular medium of expression
is narrowly tailored.
Id. at 487-88 (citations omitted and formatting altered).
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We have previously stated the facts of Klebanoff, which provided
guidance in determining whether a governmental restriction on speech is
content-neutral. In addressing the government’s interest, the Klebanoff
Court held that “courts of this Commonwealth can enjoin activity which
violates an individual’s residential privacy, and that the injunction in this case,
which restricts the place where the expressive activity can occur, is a proper
time, place and manner restriction.” Klebanoff, 552 A.2d at 678. Relying on
Frisby, supra, the Klebanoff Court recognized that only “weighty and
substantial reasons” can justify a governmental restriction on the use of public
fora, such as the residential street at issue. Id.The Klebanoff Court noted that the
this injunction serves to protect a substantial interest recognized
in both Pennsylvania law, and in the United States Constitution.
It protects what has been variously called the individual’s right of
privacy, the right to be free from intrusion upon one’s solitude or
seclusion, or the right to be left alone.
The public’s interest in protecting the well-being, tranquility, and
privacy of the home is of the highest order. The home has been
called the last citadel of the tired, the weary, and the sick. The
home serves to provide, among other things, a [refuge] from
today’s complex society where we are inescapably captive
audiences for many purposes. Rowan v. United States Post
Office, 397 U.S. 728, 738, 90 S. Ct. 1484, 1491, 25 L. Ed.2d 736(1970). Normally, outside of the home, consonant with the
Constitution, we expect individuals to avoid unwanted speech,
simply by averting their eyes. But such avoidance within the walls
of one’s own house is not required. Therefore, the courts have
repeatedly held that individuals are not required to welcome
unwanted speech and the State may act to avoid such intrusions
into the privacy of the dwelling place.
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Id. at 679 (formatting altered and most citations omitted). In sum,
Pennsylvania’s right to privacy includes the right to not be forced to listen to
unwanted and uninvited speech.20 See id.; see also Sorrell, 564 U.S. at
575; Snyder, 562 U.S. at 459-60; Frisby, 487 U.S. at 484-85, 488; Pico,
457 U.S. at 866-67.
The SmithKline Court similarly affirmed a permanent injunction that
prevented the defendants from picketing within 100 feet of the plaintiffs’
homes. SmithKline, 959 A.2d at 359. The Court, citing Frisby and
Klebanoff, acknowledged Pennsylvania’s governmental interest in protecting
an individual’s residential privacy. See id. at 357. The SmithKline Court
noted that the defendants had graffitied the plaintiffs’ homes, glued the door
locks shut, used bullhorns, and shouted obscenities and threats, among other
actions. Id. at 358-59. Therefore, the SmithKline Court concluded, “ample
evidence” of record existed that the defendants had “intruded upon the
privacy interests” of the plaintiffs.21 Id. at 359.
20 The Klebanoff Court concluded that the record established that the
picketing of the plaintiff’s home significantly intruded upon the plaintiffs’
privacy. Klebanoff, 552 A.2d at 679-80. In the Court’s view, the record
established that the picketing caused emotional stress to the plaintiff’s family,
impacted the quiet enjoyment of their home, and interfered with their holidays
and family routines. Id. After noting that “[e]ven a complete ban on all
expressive activity in a traditional public forum is permissible if substantial
privacy interests are being invaded in an essentially intolerable manner,” the
Court held that the injunction was constitutionally permissible. Id. at 680
(citation omitted).
21 In contrast, Rouse did not address the governmental interest in residential
privacy. In Rouse, the plaintiff obtained a temporary restraining order
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In Madsen, the United States Supreme Court addressed a similar state
court injunction involving targeted speech and the governmental interest in
residential privacy. In Madsen, pro-life activists “picketed and demonstrated
[on] the public street” that gave access to a Florida abortion clinic. Madsen,
512 U.S. at 758. A Florida state court permanently enjoined the activists from
“blocking or interfering with public access to the clinic, and from physically
abusing persons entering or leaving the clinic.” Id. The clinic, however,
sought a broader injunction because the activists, among other things, had
continued to impede access to the clinic and had picketed in front of the clinic
employees’ private residences. Id. at 758-59.
The trial court agreed and enjoined the activists from entering a 36-foot
buffer zone surrounding the clinic. Id. at 768-69. This buffer zone included
the public access street to the clinic as well as private property surrounding
the clinic. Id. at 769. The amended injunction also prohibited the activists
from using “images observable to or within earshot of the patients” inside the
clinic. Id. at 760. The trial court also enjoined the activists from “picketing,
against the defendant from picketing from within the public areas inside a
shopping mall, the entrance to a department store located in the shopping
mall, an exterior courtyard area, and the sidewalk surrounding the shopping
mall. Rouse, 417 A.2d at 1251-52. The trial court held the defendant in
contempt of the order. Id. at 1248. The defendant appealed and argued,
among other things, that the order violated his “First Amendment rights of
freedom of speech and expression.” Id. at 1252. The Rouse Court disagreed
because the order did not limit the defendant’s “expression of the ideas” but
instead limited the conduct in which the defendant chose to express those
ideas. Id. at 1254.
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demonstrating, or using sound amplification equipment within 300 feet of the
[private] residences of clinic staff.” Id. at 774.
The Madsen Court initially held that the amended injunction was
content-neutral.22 Id. at 763-64. It also agreed that the activists’ picketing
was “directed primarily at patients and staff of the clinic.” Id. at 769
(distinguishing between generally disseminated communication such as
handbilling and solicitation that may not be banned in public fora, and focused
picketing, which can be banned).
With respect to the private property encompassed by the 36-foot buffer
zone, the Madsen Court invalidated that part of the injunction. Id. at 771.
The Madsen Court reasoned that there was no “evidence that [the activists]
standing on the private property have obstructed access to the clinic, blocked
vehicular traffic, or otherwise unlawfully interfered with the clinic’s operation
. . . .” Id. The Madsen Court therefore held that the 36-foot buffer zone, to
22 Specifically, the Madsen Court reasoned as follows:
That petitioners all share the same viewpoint regarding abortion
does not in itself demonstrate that some invidious content- or
viewpoint-based purpose motivated the issuance of the order. It
suggests only that those in the group whose conduct violated the
court’s order happen to share the same opinion regarding
abortions being performed at the clinic. In short, the fact that the
injunction covered people with a particular viewpoint does not
itself render the injunction content or viewpoint based.
Madsen, 512 U.S. at 763. Thus, an injunction enjoining the communicating
of a particular viewpoint, e.g., pro-life or anti-racism, does not presumptively
render the instant trial court’s injunction content or viewpoint based. See id.- 47 -
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the extent it applied to the private property surrounding the clinic, “burdens
more speech than necessary to protect access to the clinic.” Id.The Madsen Court also overturned the portion of the trial court’s
injunction that prohibited the activists from using “images observable” to any
patients inside the clinic:
Clearly, threats to patients or their families, however
communicated, are proscribable under the First Amendment. But
rather than prohibiting the display of signs that could be
interpreted as threats or veiled threats, the state court issued a
blanket ban on all “images observable.” This broad prohibition on
all “images observable” burdens more speech than necessary to
achieve the purpose of limiting threats to clinic patients or their
families. Similarly, if the blanket ban on “images observable” was
intended to reduce the level of anxiety and hypertension suffered
by the patients inside the clinic, it would still fail. The only
plausible reason a patient would be bothered by “images
observable” inside the clinic would be if the patient found the
expression contained in such images disagreeable. But it is much
easier for the clinic to pull its curtains than for a patient to stop
up her ears, and no more is required to avoid seeing placards
through the windows of the clinic. This provision of the injunction
violates the First Amendment.
Id. at 773.
With respect to the portion of the trial court’s injunction that prohibited
the anti-abortion activists from picketing within a 300 feet zone of the clinic
employees’ private homes, the Madsen Court held that the zone was too
large:
As for the picketing, our prior decision upholding a law banning
targeted residential picketing remarked on the unique nature of
the home, as the last citadel of the tired, the weary, and the sick.
We stated that the State’s interest in protecting the well-being,
tranquility, and privacy of the home is certainly of the highest
order in a free and civilized society.
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But the 300–foot zone around the residences in this case is much
larger than the zone provided for in the ordinance which we
approved in Frisby. The ordinance at issue [in Frisby] made it
unlawful for any person to engage in picketing before or about the
residence or dwelling of any individual. The prohibition was
limited to focused picketing taking place solely in front of a
particular residence. By contrast, the 300–foot zone would ban
general marching through residential neighborhoods, or even
walking a route in front of an entire block of houses. The record
before us does not contain sufficient justification for this broad a
ban on picketing; it appears that a limitation on the time, duration
of picketing, and number of pickets outside a smaller zone could
have accomplished the desired result.
Id. at 775 (citations omitted and formatting altered).23
In sum, the Madsen Court struck “down as unconstitutional the 36–foot
buffer zone as applied to the private property [around] the clinic, the ‘images
observable’ provision, . . . and the 300–foot buffer zone around the [clinic
employees’ private] residences, because [those] provisions [swept] more
broadly than [was] necessary to accomplish the permissible goals of the
injunction.” Id. at 776. Having summarized the applicable law, we next
address the instant trial court’s injunction.
23 We comment that the Madsen Court’s reasoning must also be considered
in light of the heightened scrutiny of an injunction, as compared to the
ordinance in Frisby. See Madsen, 512 U.S. at 764-65. We add that Madsen
involved targeted picketing to a private residence, as compared to the
untargeted signs at issue in Gilleo. See Gilleo, 512 U.S. at 55 (citing and
quoting Frisby for the proposition that “picketing focused upon individual
residence is ‘fundamentally different from more generally directed means of
communication that may not be completely banned in residential areas,’” i.e.,
signs (citation omitted)).
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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. Trial Ct. Op.,
9/12/19, at 8-9, R.R. at 625a-26a (citations omitted); accord Ex. E to
Appellants’ Mot. for Summary J., at 41, 47, 54, 61, R.R. at 244a, 250a, 257a,
264a.
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
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manner analysis is not sufficiently rigorous”). The instant trial court, however,
instead applied the time, place, and manner test in justifying its injunction.
See Trial Ct. Op. & Order, 9/12/19, at 9, R.R. at 626a. 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.24 See Madsen, 512 U.S. at 765. For these reasons, we vacate
the judgment, and vacate the injunction.
24 When a trial court has applied an incorrect legal standard, we should vacate
and remand. For example, in In re M.B., 228 A.3d 555 (Pa. Super. 2020),
because the trial court improperly held the appellant to a higher standard of
proof, the M.B. Court vacated the order and remanded for further
proceedings. M.B., 228 A.3d at 577; see also Barak v. Karolizki, 196 A.3d
208, 221, 224 (Pa. Super. 2018) (vacating and remanding to have trial court
apply correct law when it improperly applied the preliminary injunction
standard to lis pendens); New Milford Twp. v. Young, 938 A.2d 562, 566
(Pa. Cmwlth. 2007) (vacating permanent injunction and remanding because
trial court failed to hold the hearing required by law).
The same principle also binds this Court. In Commonwealth v. Clay, 64
A.3d 1049 (Pa. 2013), our Supreme Court held that when “a reviewing court
applies the incorrect legal standard, our court generally will remand the matter
with appropriate directions.” Clay, 64 A.3d at 1057 (citation omitted).
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Because the Superior Court in Clay applied the incorrect standard of review,
our Supreme Court “reverse[d] the decision of the Superior Court and
remand[ed] this matter to the Superior Court for reconsideration of [the]
claims under the appropriate abuse of discretion standard.” Id.
Federal courts have similarly remanded to have the lower courts apply the
proper legal standard. See, e.g., Roberts v. City of Honolulu, 938 F.3d
1020, 1022 (9th Cir. 2019) (explaining that “[b]ecause we agree that the
district court did not apply the correct legal standard . . . , we vacate and
remand for application of the correct legal standard” (formatting altered));
Genband US LLC v. Metaswitch Networks Corp., 861 F.3d 1378, 1381
(Fed. Cir. 2017) (holding that “where it is not evident that a district court has
applied the correct legal standard in exercising its discretion, we may vacate
and remand for the district court to do so in the first instance, especially where
further factual findings may be warranted under the correct legal standard”
(citation omitted and formatting altered)); G.G. ex rel. Grimm v. Gloucester
Cty. Sch. Bd., 822 F.3d 709, 715 (4th Cir. 2016) (stating, “because we
conclude that the district court used the wrong evidentiary standard in
assessing [the] motion for a preliminary injunction, we vacate its denial and
remand for consideration under the correct standard” (formatting altered)),
vacated and remanded, 137 S. Ct. 1239 (2017); Holton v. City of
Thomasville Sch. Dist., 425 F.3d 1325, 1356 (11th Cir. 2005) (remanding
for reconsideration because “we conclude that the court failed to apply the
correct legal standard and that this error tainted its factual findings on this
issue”); see also Pullman-Std. v. Swint, 456 U.S. 273, 291 (1982)
(explaining that “when an appellate court discerns that a district court has
failed to make a finding because of an erroneous view of the law, the usual
rule is that there should be a remand for further proceedings” (formatting
altered)); Willis v. Town of Marshall, N.C., 426 F.3d 251, 267 (4th Cir.
2005) (vacating district court’s denial of preliminary injunction and remanding
for reconsideration because district court failed to address equal protection
claim); Hamad v. Woodcrest Condominium Ass’n, 328 F.3d 224, 233-34
(6th Cir. 2003) (rejecting argument that appellate court should issue
preliminary injunction despite district court’s failure to apply the correct law);
Real Truth About Obama, Inc. v. Federal Election Comm’n, 796 F.
Supp.2d 736, 744 (E.D. Va. 2011) (construing High Court’s vacate and
remand mandate as instruction to consider whether subsequent Supreme
Court caselaw would alter its holding).
For example, in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015), the district
court “applied the wrong legal standard” in granting a permanent injunction
resolving a First Amendment issue regarding campaign contributions. Lair,
798 F.3d at 740, 749. Because the district court applied an incorrect legal
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Judgment vacated. Trial court’s amended October 11, 2019 order and
September 12, 2019 order granting injunctive relief vacated and we remand
for further proceedings.25 Jurisdiction relinquished.
standard, the Lair Court held that the district court “abused its discretion
when it entered a permanent injunction, and we remand for the district court
to apply the correct standard.” Id. at 748 (footnote omitted); accord
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1142 (9th Cir. 2009) (vacating
preliminary injunction involving First Amendment issue and remanding to
have district court apply the “rational basis level of scrutiny” because the
district court “abused its discretion in applying an erroneous legal standard of
review”). Similarly, in Virginia Soc’y for Human Life, Inc. v. Federal
Election Comm’n, 263 F.3d 379 (4th Cir. 2001) (Virginia Soc’y), overruled
on other grounds by The Real Truth About Abortion, Inc. v. Federal
Election Comm’n, 681 F.3d 544 (4th Cir. 2012), the Circuit Court vacated
the district court’s nationwide injunction regarding a First Amendment issue
because it was too broad and remanded for the district court to amend it.
Virginia Soc’y, 263 F.3d at 394.
Here, similar to the district courts in Lair and Stormans, as well as the trial
court in M.B., and this Court in Clay, the instant trial court applied an incorrect
legal standard. See Clay, 64 A.3d at 1057; M.B., 228 A.3d at 577; accord
Lair, 798 F.3d at 748; Stormans, 586 F.3d at 1142. As set forth herein, the
instant trial court erroneously applied the less strict “time, place, and manner”
O’Brien test in justifying its injunction and did not apply the heightened,
stricter Madsen test. Because the trial court applied an incorrect legal
standard, we remand “for the [trial] court to apply the correct standard.” See
Lair, 798 F.3d at 748; Stormans, 586 F.3d at 1142; Clay, 64 A.3d at 1057;
M.B., 228 A.3d at 577; cf. Virginia Soc’y, 263 F.3d at 394. Upon application
of the correct legal standard, the trial court may decide to deny relief or if it
grants relief, may tailor a properly narrowed injunction that may withstand
constitutional scrutiny.
25 Although the Concurring and Dissenting Statement agrees that the trial
court applied an incorrect legal standard, it concludes that the relief ordered
by the trial court burdened no more speech than necessary and results in
harmless error. Concurring and Dissenting Statement at 8. Considering the
impact of the instant decision on fundamental constitutional rights, including
the First Amendment, we cannot agree that the error was harmless.
Additionally, we conclude that the application of an erroneous legal standard
requires remand for a proper determination by the trial court. See 17
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J-A27022-20
Judge Colins joins the opinion.
Judge Stabile files a concurring and dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2022
Standard Pennsylvania Practice 2d § 92:103 (remand to correct errors of law)
(citing In re J. F., 408 A.2d 1382, 1387 (Pa. 1979)). The trial court should
be given the opportunity to correct its error as it is not for this Court to
presuppose what the trial court’s decision would be upon applying the proper
legal standard. See In re B.S., 861 A.2d 974, 977 (Pa. Super. 2004)
(remanding with instructions for the trial court to apply the correct legal
standard in an adoption matter); cf. Osial v. Cook, 803 A.2d 209, 215 (Pa.
Super. 2002) (noting that although this Court could correct the error, the
better course of action was to remand for the trial court to decide the matter).
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