J-A27022-20

2022 PA Super 69

FREDERICK E. OBERHOLZER, JR AND 

DENISE L. OBERHOLZER

v.

SIMON AND TOBY GALAPO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 794 EDA 2020

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. 13a14a.

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; 

2 Confidential 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. 
J-A27022-20

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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;

5 Although 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 nearidentical 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 

8

In 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 selfgovernment. 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 

10 In 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 contentneutral.

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 contentneutral. 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. 

12 The 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 at 

356 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 contentneutral 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 wellsettled O’Brien test.

14

 See id. (summarizing the four-part O’Brien test). 

14 In 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 contentneutral 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.
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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.
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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 
J-A27022-20

- 54 -

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).