[J-51-2023] [MO: Dougherty, J.] 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

FREDERICK E. OBERHOLZER, JR. AND 

DENISE L. OBERHOLZER,

 Appellees

 v. 

SIMON AND TOBY GALAPO,

 Appellants

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No. 104 MAP 2022

Appeal from the Order of the 

Superior Court at No. 794 EDA 2020 

dated April 18, 2022, Vacating the 

judgment of the Montgomery County 

Court of Common Pleas, Civil 

Division, entered April 1, 2020, at 

No. 2016-11267 and Remanding. 

(The order of the Superior Court 

dated April 5, 2022, withdrew the 

March 7, 2022, memorandum.)

ARGUED: October 17, 2023

DISSENTING OPINION

JUSTICE WECHT DECIDED: August 20, 2024

In this appeal, Simon and Toby Galapo present two primary claims. First, they 

argue that the trial court’s injunction is an unconstitutional prior restraint on speech. 

Second, they assert that the injunction violates “the so-called traditional rule that equity 

lacks the power to enjoin the publication of defamatory matter.”1 (The “no-injunction rule” 

for short.) Because the trial court’s injunction in this case was not based on a theory of 

defamation, the Galapos urge us to adopt an unprecedented version of the no-injunction 

rule that would prohibit injunctions in all tort cases, not just in defamation actions.

2 Today, 

the Majority seems to resolve both appellate claims in the Galapos’ favor. In so doing, 

1 Willing v. Mazzocone (“Willing II”), 393 A.2d 1155, 1158 (Pa. 1978) (plurality).

2 Brief for the Galapos at 26 (“[I]t does not and should not matter whether a plaintiff 

bases his or her request for injunctive relief on allegations of defamation, false light, 

nuisance, or any other tort.”).
[J-51-2023] [MO: Dougherty, J.] - 2

the Majority obscures the important differences between the prior restraint doctrine and 

the no-injunction rule.3

In this dissent, I explore the history of the no-injunction rule and the reasons that 

modern courts have given for modifying or abandoning it. I then discuss the Majority’s

adoption of the no-injunction rule, its dramatic expansion of that rule to encompass torts 

other than defamation, and its separate conclusion that the present injunction is an 

unconstitutional prior restraint under Article I, Section 7 of the Pennsylvania Constitution.4 

I conclude ultimately that the injunction here is not a prior restraint and does not violate 

the no-injunction rule, a rule that in any event does not exist in Pennsylvania, and one 

that would not apply to this case even if it did exist here. Contrary to the Majority’s 

analysis, equity courts possess the authority to issue certain kinds of narrow injunctions 

that restrict speech so long as those injunctions can withstand either intermediate scrutiny 

(for content-neutral injunctions) or strict scrutiny (for content-based injunctions). Because 

the instant injunction survives application of either standard, it should be upheld.

I. History of the No-Injunction Rule

The no-injunction rule and Article I, Section 7’s prohibition on prior restraints have 

distinct origins, with the former predating the latter.

5 The no-injunction rule, at least at its 

3 See, e.g., Majority Opinion at 46 (expanding the no-injunction rule to encompass 

all torts “because the text of Article I, Section 7 does not distinguish between defamation 

or any other tort involving speech”).

4 See PA. CONST. art. I, § 7 (“The 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.”).

5 Erwin Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L. REV. 157, 

167 (2007) (explaining that the no-injunction rule “was established in eighteenth-century 

England, well before the American revolution”); David S. Ardia, Freedom of Speech, 

Defamation, and Injunctions, 55 WM. & MARY L. REV. 1, 18 (2013) (“The no-injunction rule 

has been a fixture of Anglo-American law for more than three centuries. Well before the 

First Amendment was ratified, it was taken as a given by judges and lawyers that 

(continued...)
[J-51-2023] [MO: Dougherty, J.] - 3

inception, was not designed to protect free speech. It was a constraint on the jurisdiction 

of equity courts in England. “Due to the historical division between courts of law and 

courts of equity, [English] common law judges originally lacked the authority to grant any 

equitable relief.”6 Because English common law “courts had no power to grant 

injunctions, and courts of equity lacked the authority to adjudicate claims for defamation, 

the only remedy available for defamation was money damages at law.”7

Early American courts invoking the common law no-injunction precept likewise

treated the rule as a jurisdictional limitation on courts of equity.8 Yet many of those same 

courts “continued to deny requests for injunctions targeting defamatory speech” on this 

basis even “long after law and equity courts had merged in most jurisdictions in the United 

States.”9 Broadly speaking, American courts adhering to the no-injunction rule cited one 

or more of the following three reasons for doing so. First, some courts believed that to 

allow a court of equity to decide whether speech is defamatory would be to intrude upon 

injunctions, including permanent injunctions following trial, were not permissible remedies 

in defamation actions.”); Note, The Restraint of Libel by Injunction, 15 HARV. L. REV. 734, 

734 (1902) (“For one hundred and fifty years there has existed a tradition having the force 

of absolute law that equity has no jurisdiction to enjoin a libel.”).

6 Ardia, supra note 4, at 20.

7 Id.

8 “When American courts initially invoked the no-injunction rule, the reason most 

often cited was the conviction that a court of law did not have the power to issue an 

injunction.” Id. (emphasis added); id. at 21 (“American judges were quick to dismiss 

requests for injunctions directed at defamatory speech, and the earliest decisions almost 

uniformly did so on the basis that the court had no jurisdiction to grant equitable relief of 

any kind.”); Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339, 350 (Cal. 2007) 

(explaining that the no-injunction rule “was created more as an offshoot of a jurisdictional 

dispute than as a calculated understanding of the needs of a free press”).

9 Ardia, supra note 4, at 21-22; see Eugene Volokh, Anti-Libel Injunctions, 168 U.

PA. L. REV. 73, 90 (2019) (“Many past cases do say that ‘equity will not enjoin a libel,’ but 

that was a descriptive claim, describing a rule that no longer applies in many states.”).
[J-51-2023] [MO: Dougherty, J.] - 4

the role of the jury.

10 Second, some courts reasoned that defamation plaintiffs already 

have an adequate remedy at law and therefore are not entitled to equitable relief.

11 Third,

some courts suggested that an injunction prohibiting further defamatory speech would be 

an unconstitutional prior restraint.

12 Each of these distinct rationales for the no-injunction 

rule warrants closer scrutiny.

First, “[r]espect for the role of juries in free speech controversies played a seminal 

part in the adoption of the no-injunction rule by American courts.”13 Because courts of 

law empaneled juries while courts of equity did not, a view emerged that allowing an 

equity court to enjoin speech that the court itself has determined to be defamatory would 

deprive defendants of their “right to have the truth or falsity of the issue determined by a 

10 Willing II, 393 A.2d at 1159 (Roberts, J., concurring) (“One of the underlying 

justifications for equity’s traditional refusal to enjoin defamatory speech is that in equity 

all questions of fact are resolved by the trial court, rather than the jury. Thus, it deprives 

appellant of her right to a jury trial on the issue of the truth or falsity of her speech.”); 

Preston Hollow Cap. LLC v. Nuveen LLC, 216 A.3d 1, 11 (Del. Ch. 2019) (“The original 

intent behind the rule was to give jurors, rather than judges, the ability to determine 

whether statements were defamatory.”).

11 Under our legal standard governing permanent injunctions, a party seeking an 

injunction must demonstrate that they have a clear legal right to relief and no other 

adequate remedy at law, meaning that monetary damages are insufficient to make the 

plaintiff whole. Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Prac. 

Knowledge, 102 A.3d 501, 505-06 (Pa. Super. 2014); Mazzocone v. Willing (“Willing I”), 

369 A.2d 829, 832 (Pa. Super. 1976) (noting that one “argument often invoked for denying 

injunctive relief in defamation cases is that the plaintiff has an adequate remedy at law”), 

overruled by Willing II, 393 A.2d at 1158 (plurality).

12 Willing I, 369 A.2d at 832 (“The final reason frequently advanced for equity’s 

reluctance to enjoin defamation is that an injunction against the publication would be 

unconstitutional as a prior restraint on free expression.”), overruled by Willing II, 393 A.2d 

at 1158 (plurality).

13 Ardia, supra note 4, at 22 (“The aphorism that ‘equity will not enjoin a libel’ was 

essentially an assertion that a judge, acting alone, could not censor speech, and that 

juries were a necessary bulwark against government encroachment into fundamental 

liberties.”).
[J-51-2023] [MO: Dougherty, J.] - 5

jury trial as at common law.”14 In a 1902 case, for example, this Court affirmed a lower 

court’s refusal to exercise equity jurisdiction in a defamation case.15 We explained that, 

even in cases where the plaintiff lacks an adequate legal remedy such that the exercise 

of equity jurisdiction may be warranted, the defamation nevertheless “must be so clear as 

to be practically conceded, or it must first be established by the verdict of a jury.”16

If the no-injunction precept is to be understood as a rule intended to protect the 

defendant’s right to a jury trial, a distinction necessarily arises between preliminary and 

permanent injunctions. Unlike preliminary injunctions, permanent injunctions can be 

issued after a jury has determined that the specific statements sought to be enjoined are 

in fact defamatory, or perhaps even after the defendant has waived his right to a jury trial 

by opting for a bench trial or by entering into a settlement agreement. Assuming that the 

injunction goes no further than prohibiting the defendant from republishing the exact 

statement found or agreed to be defamatory, there can be no serious claim that the grant 

of an equitable remedy deprives the defendant of his right to a jury trial. I stress that the 

narrowness of any injunction is key here, since an order restricting speech beyond that 

which was adjudged or agreed to be tortious would, in theory, deny the defendant his

14 Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 F. 

553, 556 (C.C.M.D. Ala. 1909).

15 Baltimore Life Ins. Co. v. Gleisner, 51 A. 1024, 1024 (Pa. 1902).

16 Id. at 1024.
[J-51-2023] [MO: Dougherty, J.] - 6

right to have a jury determine whether the additional statements are defamatory.17 But 

as long as the injunctions are crafted narrowly, they are upheld in most states.

18

Turning to the notion that defamation plaintiffs are not entitled to an equitable 

remedy because they possess an adequate legal one, I believe that the Superior Court 

in Willing I justifiably was skeptical of this premise.19 Such a rule “would make an 

17 University of North Carolina School of Law Professor David S. Ardia, whose 

scholarship has greatly informed my understanding of this case, has sorted injunctions 

into four categories based on their breadth. Type I and Type II injunctions, which courts 

universally reject, prohibit the defendant from making “any statements” or “any 

defamatory statements” about the plaintiff. Ardia, supra note 4, at 52-53. Type III 

injunctions “prohibit a party from publishing certain enumerated statements about the 

plaintiff without limiting the injunction to the specific statements that have been found to 

be defamatory.” Id. at 54. For example, a Type III injunction “might order the defendant 

to take down an entire website, even though only a few statements on the site have been 

found to be defamatory.” Id. at 54-55. Lastly, a Type IV injunction “prohibits further 

publication, or orders the removal of the specific statements a court or jury has found are 

defamatory.” Id. at 56. In Professor Ardia’s view, only Type IV injunctions are likely 

permissible. Id. at 58. My own views dovetail with this broad protection of speech rights. 

See S.B. v. S.S., 243 A.3d 90, 120 (Pa. 2020) (Wecht, J., dissenting). Ironically, and 

inexplicably, this Court today extends unwarranted protection to the Galapos’ speech, 

notwithstanding its recent denial of basic speech rights to the appellant mother in S.B. Id.

at 107 (majority describing as content-neutral a gag order that prevented a mother (and 

her attorneys) in a contentious custody case from “speak[ing] publicly or communicat[ing]

about” the case). Readers will search in vain for a governing principle that can harmonize 

or reconcile these two majority opinions.

18 See Volokh, supra note 8, at 77 (“Thirty-four states allow such injunctions, at least 

in some situations, and only six have generally rejected them.”); id. (“If ‘equity will not 

enjoin a libel’ was ever a firm rule, it isn’t so now.” (footnote omitted)); McCarthy v. Fuller, 

810 F.3d 456, 464 (7th Cir. 2015) (Sykes, J., concurring) (“An emerging modern trend . . . 

allows for the possibility of narrowly tailored permanent injunctive relief as a remedy for 

defamation as long as the injunction prohibits only the repetition of the specific statements 

found at trial to be false and defamatory.”). As I explain in greater detail below, the 

requirement that the injunction restrict only speech adjudged to be defamatory also 

ensures that the injunction will not constitute an unconstitutional prior restraint. 

19 Willing I, 369 A.2d at 832 (noting, among other things, that reputational damages 

may be difficult to prove or measure and that bringing repeated legal actions against an 

incessant defamer “would be a pointless gesture” when the defendant is judgment proof),

overruled by Willing II, 393 A.2d at 1158 (plurality).
[J-51-2023] [MO: Dougherty, J.] - 7

impecunious defamer undeterrable” because he could simply “continue defaming the 

plaintiff, who after discovering that the defamer was judgment proof would cease suing, 

as he would have nothing to gain from the suit, even if he won a judgment.”20 This would 

leave the defamer “free to repeat all their defamatory statements with impunity” and the 

defamed with “no remedy except to sue for damages and obtain another money judgment 

that they won’t be able to collect.”21 This is not an adequate remedy. It is a purely 

theoretical one. Scholars rightly have criticized the notion that such an illusory entitlement 

to damages constitutes an adequate remedy at law.22

The adequate-remedy theory was never all that persuasive, and it has become 

even less so over time. As technology has lowered barriers to mass communication, 

assumptions that courts made in earlier eras have grown ripe for reexamination. In the 

1980s, for example, “70 percent of all libel actions in the United States involved claims 

against the mass media,” while such suits today are more likely to be filed against 

20 McCarthy, 810 F.3d at 462.

21 Id.

22 DOUGLAS LAYCOCK & RICHARD L. HASEN, MODERN AMERICAN REMEDIES 346 (5th ed. 

2018) (“Does it make any sense at all to say that a damage judgment is adequate if it can 

never be collected? The Pennsylvania rule is in a tiny minority; it might not even be the 

rule in Pennsylvania if the issue were squarely presented outside a free speech context.”); 

Estella Gold, Does Equity Still Lack Jurisdiction to Enjoin A Libel or Slander?, 48 BROOK.

L. REV. 231, 243 (1982) (“[N]otwithstanding the manifest inadequacy of the legal remedy 

in [Willing], the Pennsylvania court refused to provide the limited equitable protection 

sought by the plaintiff. Ironically, then, this formalistic reliance on an age-old equitable 

maxim, rather than doing justice, deprived the plaintiffs of all forms of redress and 

permitted the defendant to continue to act with impunity.”); RODNEY A. SMOLLA, 2 LAW OF 

DEFAMATION § 9:87 (2d ed. 1999 & Supp. 2024) (“The idea that damages are an adequate 

remedy at law begs the essential question—a convincing case can in fact be made that 

defamation is precisely the form of nonquantifiable injury for which damages are ill-suited, 

and that equitable relief would prevent reputational damage that might never be truly 

restored by money.”).
[J-51-2023] [MO: Dougherty, J.] - 8

judgment-proof bloggers, “citizen journalists,” or social media users.23 Furthermore, the 

lifespan of a defamatory statement today is now “essentially infinite” given that it “can live 

indefinitely on the Internet, waiting to be pulled up and recycled by a search engine.”24 

This stands in stark contrast to the “relatively ephemeral stream of information” that was 

available when newspapers and television broadcasts dominated the media ecosystem.25

As the defendants in libel actions have changed, so too have the plaintiffs. “In past 

decades, the typical defamation plaintiff was a public official or public figure,” but today, 

“given the ease with which information is published and shared online, many defamation 

plaintiffs are not so well known.”26 While such plaintiffs are at an advantage in that they 

need not prove actual malice to establish their defamation claims, “they still face the hard 

reality that their legal remedies are limited” in states that prohibit equitable remedies in 

defamation cases.27 This is so because individual tortfeasors are much more likely than 

media organizations to be judgment-proof, and online intermediaries like social media 

23 Ardia, supra note 4, at 11. “A database of libel lawsuits against bloggers 

maintained by the Media Law Resource Center, for example, revealed a 216 percent 

increase in cases filed between 2006 and 2009.” Id. at 12; id. at 11 (“[S]o few defamation 

cases have been filed against the mass media in the past five years that several of the 

nation’s leading media lawyers have suggested that libel law is dead. For example, 

George Freeman, vice president and assistant general counsel at The New York Times, 

says that for the first time in his twenty-nine years at the Times there are no active 

domestic libel suits.” (footnotes omitted)); see also Eugene Volokh, What Cheap Speech 

Has Done: (Greater) Equality and Its Discontents, 54 U.C. DAVIS L. REV. 2303, 2306 

(2021) (“Say what you will about the old mainstream media, but it didn’t offer much of a 

voice to people obsessed with private grievances, or to outright kooks, or to the overly 

credulous spreaders of conspiracy theories. In 1990, someone who wanted to educate 

the world about an ex-lover’s transgressions would have found it hard to get these 

accusations published, unless the ex-lover was famous.”).

24 Ardia, supra note 4, at 17-18.

25 Id. at 17.

26 Id. at 12-13.

27 Id. at 13-14.
[J-51-2023] [MO: Dougherty, J.] - 9

websites generally are not vicariously liable for the tortious speech of their users under 

Section 230 of the Communications Decency Act.28 

As scholars have pointed out, the idea that an illusory right to monetary damages 

constitutes an “adequate” remedy has become increasingly tough to maintain as the 

Internet has made it easier than ever to defame.

29 And while the rule prohibiting courts 

from enjoining defamatory speech produces unjust outcomes in the Internet era, things 

could be even worse when the next wave of technology becomes mainstream.

30

The final justification that courts have given for the rule that equity lacks jurisdiction 

to enjoin defamation is that a judicial order prohibiting the defendant from defaming the 

plaintiff would be an unconstitutional prior restraint.31 A prior restraint is “a law, regulation 

28 Id. at 16 (explaining that Section 230 “grants operators of websites and other 

interactive computer services broad protection from defamation claims based on the 

speech of third parties, including protection from injunctive relief” (footnotes omitted)); see

47 U.S.C. § 230.

29 See Erwin Chemerinsky, Tucker Lecture, Law and Media Symposium, 66 WASH.

& LEE L. REV. 1449, 1451 (2009) (“The democratization of access to the media is 

inherently different than anything that has preceded it.”). Although Dean Chemerinsky’s 

earlier writings on the subject had embraced the idea that money damages constitute an 

adequate legal remedy in defamation cases, his views have evolved, at least “with regard 

to the Internet.” Id. at 1460; compare id. (“I do not see any reason to continue the 

traditional rule that there can never be an injunction in defamation cases. I do not believe 

that damages will necessarily be an adequate remedy. There certainly can be an instance 

where the defendant has no assets and can continue to engage in the speech as long as 

they are willing to take the risk of a damage judgment against them. I think, though, that 

an injunction has to be narrowly tailored. It has to be limited to specific speech that is 

proven to be false.”), with Chemerinsky, supra note 4, at 168-70 (arguing that damages 

are a sufficient remedy for plaintiffs in defamation cases).

30 See generally Jessica Ice, Defamatory Political Deepfakes and the First 

Amendment, 70 CASE W. RSRV. L. REV. 417, 454 (2019) (arguing that “courts should draw 

lessons from both obscenity and copyright law to allow some narrowly crafted permanent 

injunctions against deepfakes”).

31 Willing I, 369 A.2d at 832 (“The final reason frequently advanced for equity’s 

reluctance to enjoin defamation is that an injunction against the publication would be 

(continued...)
[J-51-2023] [MO: Dougherty, J.] - 10

or judicial order that suppresses speech—or provides for its suppression at the discretion 

of government officials—on the basis of the speech’s content and in advance of its actual 

expression.”32 While I concede that some permanent injunctions certainly can be prior 

restraints, the notion that the prior restraint doctrine necessarily acts “as a constitutional 

bar to the granting of equitable relief against speech in an appropriate case has been 

greatly exaggerated.”33 As explained above, an equity court crafting a permanent 

injunction theoretically could enjoin only the exact statement already adjudged to be 

defamatory, without sweeping any broader.

34 Under a proper understanding of the prior 

restraint doctrine, such injunctions do not violate Article I, Section 7 or the First 

Amendment.35

Those who believe that the prior-restraint doctrine justifies the no-injunction rule 

do not mean literally to say that every conceivable order enjoining defamatory speech 

would be a prior restraint. The idea instead is that, to avoid creating an unconstitutional 

prior restraint, an equity court would have to craft an injunction so narrow that it would not 

unconstitutional as a prior restraint on free expression.”), overruled by Willing II, 393 A.2d 

at 1158 (plurality).

32 United States v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005).

33 William O. Bertelsman, Injunctions Against Speech and Writing: A Re-Evaluation, 

59 KY. L. J. 319, 329 (1970).

34 See supra note 16 (discussing Professor Ardia’s four categories of injunctions).

35 See Steve Tensmeyer, Constitutionalizing Equity: Consequences of Broadly 

Interpreting the “Modern Rule” of Injunctions Against Defamation, 72 N.Y.U. ANN. SURV.

AM. L. 43, 60 (2017) (“[T]he modern view is simply that once a court has evaluated certain 

speech, it can enjoin repetitions of that speech.”); see, e.g., Balboa Island Vill. Inn, 156 

P.3d at 343 (“[A]n injunction issued following a trial that determined that the defendant 

defamed the plaintiff that does no more than prohibit the defendant from repeating the 

defamation, is not a prior restraint and does not offend the First Amendment.”).
[J-51-2023] [MO: Dougherty, J.] - 11

really stop a resolute defamer from continuing to harm the plaintiff.

36 To borrow Dean 

Chemerinsky’s pithy summation of the dilemma: “Any effective injunction will be 

overbroad, and any limited injunction will be ineffective.”37 This is problematic because it 

is well-established that equity courts should refrain from issuing orders that have no 

chance of accomplishing their intended result.38 Proponents of the prior-restraint 

justification for the no-injunction rule also point out that, even if an injunction is limited to 

the statements already found to be defamatory, that does not necessarily mean that the 

statements will always be defamatory.39 Yet even this objection would seem to allow for 

some injunctions that restrict false statements about past events.

40

II. The Majority’s Adoption and Expansion of the No-Injunction Rule

The notion that our common law imposes some blanket prohibition on equity courts 

enjoining defamatory speech has fallen out of favor with courts. And for good reason. 

Although jurists have attempted to justify the rule on many different grounds, none of the 

reasons given have been persuasive. The adequate-remedy theory has been ridiculed 

by scholars. The jury-trial objection does not explain why equity courts should be 

36 Chemerinsky, supra note 4, at 171 (“An injunction that is limited to preventing 

repetition of the specific statements already found to be defamatory is useless because 

a defendant can avoid its restrictions by making the same point using different words 

without violating the court’s order.”).

37 Id.

38 See New York Times Co. v. United States, 403 U.S. 713, 744 (1971) (Marshall, J., 

concurring) (“It is a traditional axiom of equity that a court of equity will not do a useless 

thing[.]”).

39 Chemerinsky, supra note 4, at 171 (“A statement that was once false may become 

true later in time.”).

40 Tensmeyer, supra note 34, at 61 (“Chemerinsky’s concern is that someone might 

be enjoined from making a statement that could become true if circumstances change, 

but this concern evaporates if the speech concerns only past events. For example, the 

statement ‘LeBron James has never won an NBA championship’ is not only false, it will 

always be false.”).
[J-51-2023] [MO: Dougherty, J.] - 12

prohibited from entering permanent injunctions after a tort suit has been resolved on the 

merits. And the prior-restraint justification ignores the fact that a permanent injunction 

enjoining only the precise statement or statements already adjudged to be defamatory

would not constitute a prior restraint.

One good thing about our precedent in this area is that this Court (before today) 

has never adopted the no-injunction rule. Although the rule “has been a fixture of AngloAmerican law for more than three centuries,”41 we have never applied it. Indeed, as best 

I can discern, this Court did not even mention the no-injunction rule until 1978, in Willing 

II. In nonbinding dicta in a nonbinding plurality opinion, the Court mentioned—but did not 

apply—what it labeled the “so-called traditional view that equity lacks the power to enjoin 

the publication of defamatory matter.”42 For reasons unknown, this stray reference to the 

“so-called traditional view” has stumbled forward, with some federal courts concluding

incorrectly that the no-injunction rule is the law in Pennsylvania.

In Kramer v. Thompson,

43 for example, the United States Court of Appeals for the 

Third Circuit was called upon to predict whether this Court would “be willing to permit an 

exception to the rule that equity will not enjoin a defamation in cases where there already 

has been a jury determination that the defendant’s statements were libelous.”44 Implicit 

in that question is a misunderstanding of Pennsylvania law. It makes no sense to ask 

whether this Court would embrace an exception to a rule that it has never adopted. The 

41 Ardia, supra note 4, at 18.

42 Willing II, 393 A.2d at 1158 (plurality) (“Our resolution should also render 

unnecessary any discussion of the Superior Court’s proposed exception to the so-called 

traditional view that equity lacks the power to enjoin the publication of defamatory 

matter.”). 

43 947 F.2d 666 (3d Cir. 1991).

44 Id. at 676.
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Third Circuit’s mistake is that it misinterpreted our decision in Willing II as adopting the 

no-injunction rule.45 The Kramer Court opined that Willing II was an “unqualified rejection 

of the Superior Court’s” decision in Willing I, which refused to apply the common law noinjunction rule.46 That was incorrect. The lead opinion in Willing II explicitly did not base 

its conclusion on the no-injunction rule, although the three concurring justices would have

done so.

47 The only principle that garnered the votes of four Justices in Willing II was the 

conclusion that the injunction in that case was an unconstitutional prior restraint.48 Willing 

II established no precedent at all regarding the no-injunction rule.

The Galapos cite the Kramer court’s misreading of our decision in Willing II—along 

with some other courts that have relied upon Kramer49—and claim that Willing II “adopted 

45 Id. at 678 (“Whatever the reason, the fact remains that the Supreme Court of 

Pennsylvania appears entirely comfortable with the common-law bar; hence, we must 

tread lightly and carefully before recognizing an exception to this general rule in a diversity 

case turning on Pennsylvania law.”).

46 Id. 

47 Willing II, 393 A.2d at 1158 (plurality) (“Our resolution should also render 

unnecessary any discussion of the Superior Court’s proposed exception to the so-called 

traditional view that equity lacks the power to enjoin the publication of defamatory 

matter.”); id. at 1158-59 (Roberts, J., concurring) (disagreeing with “the Superior Court's 

radical departure from the long-standing general rule that equity will not enjoin a 

defamation”); id. at 1160 (Pomeroy, J., concurring) (incorporating by reference Judge 

Jacobs’ Superior Court dissent); see Willing I, 369 A.2d at 835-37 (Jacobs, J., dissenting) 

(arguing that “the injunction issued in the case at bar” violates “the general rule that equity 

will not enjoin a defamation”).

48 See Majority Opinion at 39 n.17 (noting that the concurring justices in Willing II

agreed with the lead opinion’s prior restraint analysis).

49 See Puello v. Crown Heights Shmira, Inc., No. CIV.A. 3:14-0959, 2014 WL 

3115156, at *2 (M.D. Pa. July 7, 2014) (citing Kramer for the proposition that Pennsylvania 

follows the common law rule that “equity will not enjoin a libel”); Graboff v. Am. Ass’n of 

Orthopaedic Surgeons, No. CIV.A. 12-5491, 2013 WL 1875819, at *5 (E.D. Pa. May 3, 

2013) (denying injunction relief for a false light claim because “[t]he Third Circuit in Kramer

predicted that the Pennsylvania Supreme Court will adhere to the traditional, common 

(continued...)
[J-51-2023] [MO: Dougherty, J.] - 14

the common law notion that equity will not enjoin defamation.”50 This claim is erroneous. 

The only Pennsylvania appellate court decision that even engages with the no-injunction 

rule is the Superior Court’s persuasive repudiation of it in Willing I.

51 Our pre-Willing II 

case law explains that injunctive relief may be available whenever it is “so clear as to be 

practically conceded” that the speech is defamatory, or when the defamation has been 

“established by the verdict of a jury.”52 Thus, the only version of the no-injunction rule 

that could even arguably be consistent with this Court’s precedent is the modern, limited 

approach that allows for certain narrowly crafted permanent injunctions.

Yet the Majority today adopts a no-injunction rule that appears to make no 

distinction between preliminary and permanent injunctions.53 That failure is indefensible. 

A no-injunction rule that categorically prohibits narrow permanent injunctive relief in 

defamation cases represents the minority approach among the fifty states and is 

inconsistent with our own precedent.54 The rule is also unjust insofar as it blocks equity 

law principle that equity will not enjoin a defamation”); Angelico v. Lehigh Valley Hosp. 

Inc., No. 1997-C-1671, 2005 WL 5163656 (Pa. Com. Pl. 2005) (citing Kramer and stating 

that, “in keeping with the venerable common-law rule that equity will not enjoin a 

defamation, courts of this Commonwealth will not accord injunctive relief to proscribe 

publication of libelous materials”).

50 Brief for the Galapos at 25.

51 Willing I, 369 A.2d at 831 (concluding that “blind application of the [no-injunction 

rule] would be antithetical to equity’s historic function of maintaining flexibility and 

accomplishing total justice whenever possible.”), overruled by Willing II, 393 A.2d at 1158 

(plurality). 

52 Balt. Life Ins. Co., 51 A. at 1024.

53 Majority Opinion at 46.

54 See Volokh, supra note 8, at 77; Balt. Life Ins. Co., 51 A. at 1024.
[J-51-2023] [MO: Dougherty, J.] - 15

courts from preventing further reputational damage that might never be adequately

compensated by money damages.55

Sadly, it gets worse. Because the equity court’s injunction in this case was not 

based on the theory that the Galapos’ signs were defamatory, it is not enough for the 

Majority to simply adopt the disfavored theory that equity will not enjoin defamation. The 

Majority must also accept the Galapos’ argument that the no-injunction rule bars 

injunctive relief that restricts speech in all tort cases, not just in defamation actions.

56 The

Majority offers no persuasive justification for this expansive rule, which, again, is based 

entirely on the Third Circuit’s misinterpretation of Willing II. The Majority does not 

scrutinize the Galapos’ argument to any real extent; it reasons simply that the noinjunction rule should prohibit injunctions in all speech-related tort cases because “the 

text of Article I, Section 7 does not distinguish between defamation or any other tort 

involving speech.”57 As explained above, however, the no-injunction rule does not 

emanate from Article I, Section 7. So, the fact that Article I, Section 7 does not distinguish 

between different torts proves nothing.

55 Keep in mind that it is typically not money damages that defamation plaintiffs really 

desire. Ardia, supra note 4, at 15-16 (“[R]esearch has shown that money is not what 

defamation plaintiffs want most. A study conducted in the 1980s by Professor Randall 

Bezanson found that only 20 percent of plaintiffs sued to obtain money as compensation 

for their reputational harms. Instead, Professor Bezanson’s research revealed that what 

libel plaintiffs desire most is a correction or retraction.” (footnotes omitted)). Indeed, the 

cost to litigate an average defamation case can easily exceed any provable economic 

loss stemming from the tort. David A. Anderson, Is Libel Law Worth Reforming?, 140 U.

PA. L. REV. 487, 542 (1991) (stating that “[v]ery few libel plaintiffs suffer enough provable 

pecuniary loss to justify litigating” their case).

56 Majority Opinion at 47 (holding that equity courts “generally lac[k] the power to 

grant injunctive relief” to enjoin speech “regardless of the nature of the underlying cause 

of action”).

57 Id. at 46.
[J-51-2023] [MO: Dougherty, J.] - 16

In point of fact, the case for enjoining non-defamatory tortious speech or 

expressive activity is much stronger than the case for enjoining pure defamation.58 Unlike 

in defamation cases—where the basis of the tort is the false statement itself—other torts 

such as intentional infliction of emotional distress, invasion of privacy, and nuisance are 

more likely to involve a combination of speech and conduct.59 That likely explains why 

neither the Majority nor the Galapos are able to identify any state in the entire nation that 

has a no-injunction rule resembling the one that the Majority creates today.60 

58 SMOLLA, supra note 21, § 9:89 (“When the tortious conduct can be characterized 

as implicating torts other than defamation, injunctive relief tends to be more readily 

available.”).

59 Id. (“Where the defamation is incident to some other legal invasion for which 

injunctive relief is available, such as a trespass, or violent picketing, or fraud, both the 

larger tortious misconduct and the incidental defamation may be enjoined.”); Test Masters 

Educ. Servs., Inc. v. Singh, 428 F.3d 559, 580 (5th Cir. 2005) (explaining that “courts do 

have the power to enjoin harassing communication” and “also have the power to enjoin 

repeated invasions of privacy”); see generally Haverbush v. Powelson, 551 N.W.2d 206, 

207 (Mich. Ct. App. 1996) (upholding an injunction in an intentional infliction of emotional 

distress case).

60 Misunderstanding a footnote in Professor Ardia’s article on injunctions in 

defamation cases, the Majority suggests that six other states have constitutional 

prohibitions on “speech-related injunctions” resembling the one that the Majority creates 

today. Majority Opinion at 46 n.20. That’s incorrect. In the quoted portion of his article, 

Professor Ardia is discussing state court decisions that could impede adoption of the 

“modern approach” to injunctions in defamation cases, whereby certain narrowly tailored 

injunctions are permissible so long as they are issued after a final determination that the 

speech is defamatory. Ardia, supra note 4, at 50 (stating that “no state supreme court 

has expressly rejected [the modern] approach as violative of the federal Constitution, 

although several courts have held that the free speech guarantees in their state 

constitutions pose an independent bar to injunctive relief in defamation cases.” (emphasis 

added)). 

Contrary to the Majority’s assertion, none of the states that Professor Ardia

identifies have bans on “speech-related injunctions” like the one that the Majority invents 

today. The Majority’s claim that California and Montana have broad constitutional

prohibitions on enjoining “speech” is especially risible, since those states have led the 

way in permitting injunctions in defamation cases. Balboa Island Vill. Inn, 156 P.3d at 

352 (upholding an injunction on libelous speech); St. James Healthcare v. Cole, 178 P.3d 

696, 705 (Mont. 2008) (citing Balboa and holding that “speech and conduct that is 

(continued...)
[J-51-2023] [MO: Dougherty, J.] - 17

The Majority’s embrace of this regrettable rule, at a time in which even the classic 

version of the rule has been widely questioned,61 will rob equity courts of their power to 

award any measure of justice at all to tort victims who lack an adequate legal remedy. 

The Majority’s response to my analysis is all bark and no bite. Seemingly acknowledging 

that the common law no-injunction rule has never been adopted in Pennsylvania, the 

Majority pretends instead that an identical prohibition exists as a matter of state 

constitutional law.62 There is no support for that notion either. The Majority cites only 

Willing II, which applied no such rule. In an effort to suggest otherwise, the Majority 

describes the holding in Willing II in the broadest imaginable terms, insisting that “a fourintended to embarrass, annoy, harass or threaten” may be enjoined). As for the other 

four states that the Majority cites, every one of them lacks judge-made rules resembling 

the broad and unforgiving one that the Majority creates today. Kinney v. Barnes, 443 

S.W.3d 87, 99 (Tex. 2014) (declining to overturn the no-injunction rule but stating that the 

rule would not prevent an injunction prohibiting the defendant from repeating defamatory 

statements); Sid Dillon Chevrolet-Oldsmobile-Pontiac, Inc. v. Sullivan, 559 N.W.2d 740, 

747 (Neb. 1997) (holding that injunctive relief may be available in defamation cases when 

there has been a prior adversarial determination that the speech in question was 

defamatory or when “injunctive relief is essential for the preservation of a property right”);

Vartech Sys., Inc. v. Hayden, 951 So. 2d 247, 262 n.22 (La. App. 1 Cir. 2006) (stating 

that permanent injunctive relief is available in defamation cases “after a trial on the 

merits”); see Volokh, supra note 8, at 141 n.306 (citing several Missouri cases in which 

anti-libel injunctions were issued). If there existed any state court decisions establishing

broad constitutional prohibitions on “speech-related injunctions,” the Majority would surely

cite them. It doesn’t. Because it can’t.

61 See, e.g., Erwin Chemerinsky, Tucker Lecture, Law and Media Symposium, 66 

WASH. & LEE L. REV. 1449, 1460 (2009) (“I do not see any reason to continue the 

traditional rule that there can never be an injunction in defamation cases.”); Hill v. 

Petrotech Res. Corp., 325 S.W.3d 302, 308 (Ky. 2010) (“Under the modern rule, once a 

judge or jury has made a final determination that the speech at issue is defamatory, the 

speech determined to be false may be enjoined.”); In re Conservatorship of Turner, No. 

M2013-01665-COA-R3CV, 2014 WL 1901115, at *20 (Tenn. Ct. App. May 9, 2014) 

(unpublished) (“[W]e adopt the ‘modern rule’ and hold that defamatory speech may be 

enjoined after a determination that the speech is, in fact, false.”).

62 Majority Opinion at 47 n.20 (“To reiterate, the present question is whether Article 

I, Section 7—not the common law—generally prohibits courts from enjoining speech.”).
[J-51-2023] [MO: Dougherty, J.] - 18

Justice majority . . . held the enjoinment of speech is ‘clearly prohibited by Article I, Section 

7[.]’”63 That’s true, of course, but only because those four Justices believed that the 

injunction was an unconstitutional prior restraint.64 There was not a four-Justice majority 

on the issue of whether equity can ever enjoin defamatory speech.65 

Put simply, the holding in Willing II did not rest on the common law argument that 

equity courts lack the power to enjoin defamatory speech. And the Court did not adopt a

similar prohibition as a matter of state constitutional law either. Moreover, even if the 

Court had adopted such a prohibition, that still would not support today’s expansion of the 

no-injunction rule to cases involving torts other than defamation. Regardless of whether 

we claim that today’s new rule comes from the common law or—as the Majority 

implausibly insists—the Constitution, the fact remains: there is no precedent supporting 

it.66

III. The Majority’s Prior Restraint Analysis

The Majority separately concludes that the injunction here is a prior restraint under

Article I, Section 7 of the Pennsylvania Constitution. Prior restraints are laws, regulations, 

63 Id. at 39 n.17 (quoting Willing II, 393 A.2d at 1157).

64 The Majority itself seems to admit that the four Justices who made up the plurality 

in Willing II agreed only that the challenged injunction was a prior restraint. Majority 

Opinion at 39 n.17 (noting that the concurring Justices in Willing II agreed with the lead 

opinion that the injunction was a prior restraint).

65 See Willing II, 393 A.2d at 1158 (“Our resolution should also render unnecessary 

any discussion of the Superior Court’s proposed exception to the so-called traditional view 

that equity lacks the power to enjoin the publication of defamatory matter.”).

66 The Majority’s embrace of this unprecedented rule is an unforced error in the sense 

that the rule is entirely unnecessary to today’s holding. The Majority could have simply 

rested its decision on its separate conclusion that the injunction here is a prior restraint. 

See Majority Opinion at 45. As I explain below, that conclusion is also wrong. But it is at 

least rooted in our precedent, unlike the Majority’s newly-invented prohibition on equitable 

relief.
[J-51-2023] [MO: Dougherty, J.] - 19

or judicial orders that purport to restrict speech before it occurs.

67 Because prior restraints

prohibit speech before it has been disseminated, they are presumptively unconstitutional 

and have been upheld only in extraordinary circumstances not present here.68 Article I, 

Section 7 prohibits prior restraints on the right to speak, write, or print freely, but it also 

explicitly recognizes that citizens may be “responsible for the abuse of that liberty.”69 A 

proper understanding of prior restraints therefore must distinguish between prior 

restraints and subsequent punishments. A subsequent punishment is “a penalty imposed 

after the communication has been made as a punishment for having made it,” whereas a 

prior restraint “would prevent communication from occurring at all.”70 The latter is a prior 

restraint. The former is not.

The Majority today embraces a conception of prior restraints so broad that it 

applies to all injunctions that even tangentially restrict free expression, whether before or 

after the expression occurs. In the Majority’s telling, an order preventing a defendant 

from continuing to repeat a tortious statement is a prior restraint, just as an order 

preventing a defendant from making the statement for the first time would be.71 While

67 McCarthy, 810 F.3d at 461-62 (“‘Prior restraint’ is just a fancy term for censorship, 

which means prohibiting speech before the speech is uttered or otherwise 

disseminated.”).

68 Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (“Any prior restraint on 

expression comes to this Court with a ‘heavy presumption’ against its constitutional 

validity.”); Near v. Minnesota, 283 U.S. 697, 716 (1931) (stating that prior restraints may 

be permissible in cases involving speech advocating for the overthrow of the government, 

incitements to violence, obscenity, and certain national security risks such as “the 

publication of the sailing dates of transports or the number and location of troops”).

69 PA. CONST. art. I, § 7 (“The 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.”).

70 William Goldman Theatres, Inc. v. Dana, 173 A.2d 59, 70 (Pa. 1961) (Eagen, J., 

dissenting) (emphasis in original). 

71 Majority Opinion at 45.
[J-51-2023] [MO: Dougherty, J.] - 20

support for this conception of prior restraints can be found in William Goldman Theatres,

72

it is plainly wrong. At the heart of the prior restraint doctrine is the idea that “a free society 

prefers to punish the few who abuse rights of speech after they break the law [rather] than 

to throttle them and all others beforehand.”73 Narrowly tailored permanent injunctions do 

not throttle speakers before they break the law. Rather, they threaten subsequent 

punishment for repeat lawbreaking.74 There is a fundamental difference between 

preventing someone from publishing something that allegedly would be tortious if 

published and threatening someone with contempt if they continue to publish something 

already found to be tortious.

The confusion in our case law no doubt stems from the United States Supreme 

Court’s “occasional dicta suggesting that all injunctions are prior restraints,” and these 

dicta have been recognized as “erroneous overgeneralizations.”75 Injunctions like the 

one before us that are “carefully focused, address a continuing course of speech, and are 

72 See William Goldman Theatres, 173 A.2d at 64.

73 Vance v. Universal Amusement Co., 445 U.S. 308, 316 n.13 (1980) (emphasis in 

original); Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels., 413 U.S. 376, 390 

(1973) (“The special vice of a prior restraint is that communication will be suppressed, 

either directly or by inducing excessive caution in the speaker, before an adequate 

determination that it is unprotected by the First Amendment.”).

74 Balboa Island Vill. Inn, 156 P.3d at 339 (“Prohibiting a person from making a 

statement or publishing a writing before that statement is spoken or the writing is 

published is far different from prohibiting a defendant from repeating a statement or 

republishing a writing that has been determined at trial to be defamatory and, thus, 

unlawful. This distinction is hardly novel.” (emphasis in original)).

75 Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in 

Intellectual Property Cases, 48 DUKE L.J. 147, 170-71 (1998). 
[J-51-2023] [MO: Dougherty, J.] - 21

imposed after an opportunity for full merits consideration are not properly analyzed as 

prior restraints.”76 

I do not take issue with the result in either William Goldman Theatres or Willing II. 

Both of those cases plainly did involve prior restraints on speech. The injunction in Willing 

II was a preliminary injunction that sought to restrict certain speech before it was either 

adjudged or agreed to be tortious. Worse, the equity court’s injunction in Willing II

prohibited the defendant from making any “defamatory statements” about her former 

attorneys, meaning that the order plainly did restrict plenty of speech that had not yet 

occurred.77 The statute in William Goldman Theatres was also a prior restraint because 

76 S.E.C. v. Wall St. Pub. Inst., Inc., 851 F.2d 365, 370 (D.C. Cir. 1988); see also Sid 

Dillon Chevrolet-Oldsmobile-Pontiac, Inc. v. Sullivan, 559 N.W.2d 740, 746 (Neb. 1997) 

(“Some jurisdictions have concluded that an order enjoining further publication of libelous 

or slanderous material does not constitute a prior restraint on speech where there has 

been a full and fair adversarial proceeding in which the complained of publications were 

found to be false or misleading representations of fact prior to the issuance of injunctive 

relief.”); Lothschuetz v. Carpenter, 898 F.2d 1200, 1209 (6th Cir. 1990) (Wellford, J., for 

the court in part) (upholding an injunction prohibiting “the statements which have been 

found in this and prior proceedings to be false and libelous”); McCarthy, 810 F.3d at 462 

(“Most courts would agree with Judge Wellford that defamatory statements can be 

enjoined . . . provided that the injunction is no ‘broader than necessary to provide relief to 

plaintiff while minimizing the restriction of expression.’”); Madsen v. Women’s Health Ctr., 

Inc. 512 U.S. 753, 763 n.2 (1994) (concluding that an injunction prohibiting anti-abortion 

protestors from demonstrating within a 36-foot buffer zone is not a prior restraint and 

clarifying that “[n]ot all injunctions that may incidentally affect expression [] are ‘prior 

restraints’”); Pittsburgh Press Co., 413 U.S. at 389-90 (holding that an injunction barring 

the placement of want ads for nonexempt employment in sex-segregated columns is not 

a prior restraint); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-45 (1957) (holding 

that a content-based injunction prohibiting the distribution of existing (but not future) 

obscene booklets was not a prior restraint); Tensmeyer, supra note 34, at 60 (“In one 

sense, it is clear that any injunction will forbid future speech. After all, an injunction cannot 

order someone not to have said something yesterday. But the modern view is simply that 

once a court has evaluated certain speech, it can enjoin repetitions of that speech.”

(footnote omitted)).

77 This would be considered a Type II injunction under Professor Ardia’s framework. 

Ardia, supra note 4, at 53. 
[J-51-2023] [MO: Dougherty, J.] - 22

it imposed a censorship regime on films prior to their initial exhibition.78 The Court 

therefore reached the correct result in William Goldman Theatres, even though it relied 

on an overly broad conception of prior restraints.79

IV. Application of Strict Scrutiny

Having concluded that the injunction here is not a prior restraint and does not 

violate the no-injunction rule—which, in any event, has never been the law in 

Pennsylvania before today—the question becomes whether the injunction violates Article 

I, Section 7 of the Pennsylvania Constitution. This analysis proceeds, as it does in other 

cases involving restrictions on speech, by considering the “fit” between the injunction’s 

legitimate objectives and the restraints it imposes on speech. We apply either strict or 

intermediate scrutiny, depending upon whether the restriction is content-based or 

content-neutral.80 The Galapos argue for application of strict scrutiny, whereas the 

78 William Goldman Theatres, 173 A.2d at 64.

79 In this regard, I believe that our case law epitomizes the longstanding criticism that 

the phrase “prior restraint” sometimes serves as little more than a category label some 

courts attach to speech restrictions that they have concluded are impermissible for other 

reasons. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 12-34, at 1040 (2d 

ed. 1988) (stating that the Supreme Court “has often used the cry of ‘prior restraint’ not 

as an independent analytical framework but rather to signal conclusions that it has 

reached on other grounds”); cf. Michael I. Meyerson, Rewriting Near v. Minnesota: 

Creating A Complete Definition of Prior Restraint, 52 MERCER L. REV. 1087, 1089-90 

(2001) (“It can become almost a game for attorneys defending speakers to affix the label 

of prior restraint on whatever law is being challenged.”); id. at 1090 n.12 (“First 

Amendment expert Floyd Abrams once told a symposium that ‘he was very tempted as 

an advocate, to characterize anything having the vaguest semblance to a prior restraint 

as a prior restraint, since prior restraints are somewhat of a taboo.’” (quoting Donald 

Gilmore, Prologue (for “Near v. Minnesota 50th Anniversary Symposium”), 66 MINN. L.

REV. 1, 8 (1981))).

80 Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (“Our precedents . . . 

apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose 

differential burdens upon speech because of its content,” but only “an intermediate level 

of scrutiny” when “regulations are unrelated to the content of speech.”); S.B., 243 A.3d at

120 (Wecht, J., dissenting) (explaining that an injunction is content-neutral if it does “not 

(continued...)
[J-51-2023] [MO: Dougherty, J.] - 23

Oberholzers maintain that the injunction is a content-neutral time, place, and manner 

restriction to which intermediate scrutiny applies. While Justice Brobson’s dissent makes 

a convincing case for applying intermediate scrutiny, I ultimately conclude that the trial 

court’s injunction would survive application of either test.

Under the strict scrutiny test, a content-based restriction on speech can be justified 

only if it is narrowly tailored to serve a compelling state interest.81 There is clearly a 

compelling state interest in this case. The United States Supreme Court has stated 

repeatedly that “[t]he 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.”82 Surely, then, 

the state must have an exceedingly compelling interest in remedying tortious speech or 

expressive conduct that intrudes upon the tranquility or privacy of the home.83 That 

interest is even higher when the legal remedies available to the tort victim are inadequate. 

In other words, the equity court in this case had a compelling interest in remedying a 

nuisance that intruded upon the tranquility of the Oberholzers’ home—a nuisance for 

which the court concluded the Oberholzers had no other adequate remedy at law.

seek to ban any subject matter from being protested” but instead seeks to restrict “the 

excessive tactics used by the protesters, not to stifle the message itself”).

81 Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018).

82 Madsen, 512 U.S. at 775 (quoting Frisby v. Schultz, 487 U.S. 474, 484 (1988)); id. 

(referring to the home as “the last citadel of the tired, the weary, and the sick” (quoting 

Frisby, 487 U.S. at 484)).

83 It should be obvious that this case involves not merely the Galapos’ expressive 

rights but also the Oberholzers’ domestic rights. Most challenging cases arise when 

important rights come into direct conflict with one another. As Justice Holmes is said to 

have remarked, “My right to swing my fist ends where your nose begins.” See Your 

Liberty To Swing Your Fist Ends Just Where My Nose Begins, QUOTE INVESTIGATOR

https://quoteinvestigator.com/2011/10/15/liberty-fist-nose (discussing the origin of this 

expression).
[J-51-2023] [MO: Dougherty, J.] - 24

As Justice Brobson explains today, and as Judge Stabile explained in the Superior 

Court, the injunction here also is extremely narrowly tailored to remedy the nuisance 

without burdening any more of the Galapos’ speech than is absolutely necessary.84 The 

injunction does not prevent the Galapos from expressing—to the Oberholzers or to 

anyone else—any of the messages that appear on any of the twenty-three signs. The 

injunction merely prohibits the Galapos from expressing those views in the exact manner 

that they had been employing—i.e., the tortious manner, which consisted of a years-long

performance involving a rotating assortment of nearly two dozen signs placed along the 

property line so that they would be visible from inside the Oberholzers’ home. Even with 

the injunction in place, the Galapos remain free to communicate the messages featured

on their signs to the Oberholzers in any other way that they please. They can move the 

signs to their front yard. They can hang fliers on telephone poles in the neighborhood. 

They can place bumper stickers on their cars. They can post the messages on a social 

media application for neighbors. They could even stand on the sidewalk in front of the

Oberholzers’ home holding the signs. I could go on. The critical point here is that the

present injunction is laser-targeted to remedy the nuisance while preserving the Galapos’

right to express their thoughts and ideas in a non-tortious manner. Strict scrutiny’s narrow 

tailoring requirement therefore is satisfied in this case.

Indeed, the injunction here is so narrow that one wonders whether it was even 

effective. Because the equity court had to avoid creating a prior restraint on the Galapos’

speech, the court’s injunction did not go beyond the twenty-three signs enumerated in the 

settlement agreement, i.e., the pre-existing signs that the Galapos did not dispute were 

tortious. Such orders can pose obvious enforcement problems, and equity courts 

84 See Justice Brobson’s Dissenting Opinion at 19-21; Oberholzer v. Galapo, 274 

A.3d 738, 770 (Pa. Super. 2022) (Stabile, J., concurring) (“I cannot fathom a more 

narrowly tailored remedy.”).
[J-51-2023] [MO: Dougherty, J.] - 25

considering whether to issue permanent injunctions must consider the practical realities 

of enforcing such an order.85 But to the extent that Professor Chemerinsky is correct that 

any “effective injunction will be overbroad, and any limited injunction will be ineffective,”

it is important to emphasize that the present injunction is of the narrow, arguably 

ineffective type, not the broad, unconstitutional type.86

Furthermore, even assuming that the Majority is correct that the Galapos’ aim here 

was at least partially to educate the “local community” on “the consequences of hatred 

and racism,” it is important to underscore that nothing in the injunction actually prevents 

the Galapos from doing so.87 The Galapos can convey their views about anti-Jewish 

hatred88 or any other matters of public concern in any manner other than the one that the 

85 See Chemerinsky, supra note 4, at 171 (arguing that “[a]n injunction that is limited 

to preventing repetition of the specific statements already found to be defamatory is 

useless because a defendant can avoid its restrictions by making the same point using 

different words without violating the court’s order”); New York Times Co., 403 U.S. at 744 

(Marshall, J., concurring) (“It is a traditional axiom of equity that a court of equity will not 

do a useless thing[.]”).

86 Chemerinsky, supra note 4, at 171.

87 See Majority Opinion at 52. But see Justice Brobson’s Dissenting Opinion at 10 

(emphasizing that the signs “were not directed toward the public” and that Dr. Galapo 

himself admitted that “it was irrelevant whether anyone other than the Oberholzers saw 

the signs” (emphasis omitted)).

88 Oddly, although Dr. Galapo was spurred to erect his signs by anti-Jewish slurs 

uttered by the Oberholzers (see Majority Opinion at 2 n.1), almost all of the Galapos’ 

twenty-three signs complained of “racism”, and none of them explicitly referred to Jews, 

Judaism, antisemitism, or anti-Jewish hatred. One sign did read “✡ Never Again”. Id. at 

2-3 n.2. I do not know whether the Galapos chose “racism” as a euphemism for antiJewish hatred and, if so, why they chose to obscure the nature of the particular bigotry at 

hand. Alternatively, the Galapos may consider hostility against Jews as partaking of a 

racial animus, as it has for Nazis and some other Jew-haters over time. Regardless, 

while most of the Galapos’ signs spoke broadly in terms of “racism,” it is important to point 

out that the signs were erected specifically in response to anti-Jewish hatred, not some 

generic or generalized “racism”. See Simeon Chavel, Jews, Semites, and Antisemitism, 

UNIVERSITY OF CHICAGO (Nov. 3, 2023), 

https://divinity.uchicago.edu/sightings/articles/jews-semites-and-antisemitism (“Jewish 

(continued...)
[J-51-2023] [MO: Dougherty, J.] - 26

equity court concluded (and the Galapos did not dispute) was tortious. The injunction has 

no impact at all on the Galapos’ freedom to speak to the community about anti-Jewish

hatred in any of the usual ways that many of us do.

89

identity cannot be reduced to either the biologizing ‘race/ethnicity’ or the spiritualizing 

‘religion,’ but the categories themselves of race and religion are each inflected by the 

other. Instead of conceptualizing groupings or identities as reducible to single and fixed 

characteristics, we need an approach that recognizes the multifaceted nature of identity 

and the fluid, circumstantial dynamics of groups. We would also do well to refer to hatred 

of Jews and things Jewish in those very terms and to cease using the esoteric, coded, 

misleading, and deeply troubled terms of ‘semitic’ identity and ‘antisemitic’ sentiment and 

behavior altogether.”); Yair Rosenberg, Are Jews a Race?, THE ATLANTIC (Feb. 1, 2022), 

https://www.theatlantic.com/newsletters/archive/2022/02/are-jews-a-race-whoopigoldberg-holocaust/676814 (“[P]eople have trouble fitting Jews into their usual boxes. 

They don’t know how to define Jews, and so they resort to their own frames of reference, 

like ‘race’ or ‘religion,’ and project them onto the Jewish experience. But Jewish identity 

doesn’t conform to Western categories, despite centuries of attempts by society to 

shoehorn it in. This makes sense, because Judaism predates Western categories.”).

89 See, e.g., Pete DeLuca, Dozens rally against antisemitic messaging in Squirrel 

Hill, WPXI (Aug. 2, 2024), https://www.wpxi.com/news/local/dozens-rally-againstantisemitic-messaging-squirrel-hill/WBDWSHSY7ZEM3O6JXUYGXGSXHA; Adam 

Babetski, Pittsburgh Jewish community condemns antisemitism, vandalism at ‘Fight with 

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[J-51-2023] [MO: Dougherty, J.] - 27

Put simply, because the present injunction survives even strict scrutiny, I see no 

need to resolve whether the injunction is content-based or content-neutral. Either way, 

the injunction does not violate Article I, Section 7 of the Pennsylvania Constitution.

V. Conclusion

This case concerns the question of whether equity courts have the power to enjoin 

tortious speech when the plaintiff otherwise lacks an adequate remedy at law. The 

Galapos argue that the present injunction violates the no-injunction rule, that it is an 

unconstitutional prior restraint on speech, and that it fails strict scrutiny. These arguments 

are unpersuasive. The no-injunction rule does not exist in Pennsylvania. Moreover, even 

if it did exist, it would not apply here because the equity court did not purport to enjoin 

defamatory speech. Furthermore, most states that have embraced the no-injunction rule 

have limited it to the preliminary injunction context. The argument that the injunction 

constitutes a prior restraint is also mistaken because the injunction does not restrict 

speech in advance of its publication. Finally, the injunction withstands application of strict 

scrutiny because it is narrowly tailored to serve a compelling state interest.

I respectfully dissent.