Take Down That Sign!

by: Thompson Wymard

Determining the extent of free speech is always a tricky issue for individuals, politicians, or courts. Seldom, however, do you think about how it relates to your yard. Recently, the justices on the Pennsylvania Supreme Court in Oberholzer v. Galapo had to do just that, determining the level of protection afforded to yard signs. In Oberholzer, a Pennsylvania couple, over a number of years, placed twenty-three anti-racism and anti-discrimination signs directly facing their neighbor’s property. The couple, the Galapos, began their displays after one of their neighbors, the Oberholzers, called them an anti-Semitic slur. The Oberholzers alleged that the signs equated to picketing and could, therefore, be enjoined. The Galapos argued that the signs were “pure speech” and entitled to the strictest possible constitutional protection.

In litigation, a Montgomery County trial court issued an injunction allowing signs already standing to remain but directing that they not face or target the Oberholzers’ property. The trial court found that the signs were not protected because they were erected in response to the neighbors’ alleged racism and not as a rebuke of racism’s continued existence in society as a whole. On appeal, the Superior Court decided that the trial court applied the wrong test, vacated the judgment, and remanded the case for further proceedings.

The Pennsylvania Supreme Court granted an allowance of appeal to answer three questions posed by the Galapos:

• Whether an injunction prohibiting ongoing publication constitutes an impermissible prior restraint under Article I, Section 7 of the Pennsylvania Constitution?
• Whether the publication of language which gives rise to tort claims other than defamation cannot be enjoined under Article I, Section 7 of the Pennsylvania Constitution?
• Whether the Superior Court committed an error of law by concluding that the injunction was content-neutral and therefore not subject to strict scrutiny?

Oberholzer v. Galapo, No. 104 MAP 2022, 2024 WL 3869294 (Pa. Aug. 20, 2024).

First, the Court decided that sign posting was an act of pure speech and not the same as picketing (which is distinguished as a type of speech and assembly). To the Court, the placing of signs by the Galapos in their yard was speech attempting only persuasion with a complete absence of accompanying physical acts. Furthermore, the fact that the purpose of the signs was to engage in a personal protest was completely irrelevant. The court cited precedent to emphasize that the Pennsylvania Constitution “specifically affirms the ‘invaluable right’ to the free communication of thoughts and opinions, and the right of ‘every citizen’ to ‘speak freely’ on ‘any subject’ so long as that liberty is not abused.”

The Court also held that for speech, a court usually “lacks the power to grant injunctive relief, regardless of the nature of the underlying cause of action.” Still, there is a heightened interest in one’s home, and courts may even enjoin pure speech occurring in a residential context if there is a showing that “substantial privacy interests are being invaded in an essentially intolerable manner.” The Court decided that was not the case here. The Court deemed that the Galapos’ message was aimed at highlighting the dangerous consequences of hatred and racism and that by placing the signs on their own lawn, they were communicating their own beliefs more than they were making accusations about the beliefs of others.

Ultimately, the trial court incorrectly issued its injunction against the Galapos. The placing of signs, particularly ones like these, which were general denunciations of hate and racism, is speech afforded the highest level of protection, even considering subjective intent and visibility. Still, there are ways that the government could regulate regular signs like these. Specifically, the Court mentioned that municipalities can regulate the physical characteristics of signs so long as the regulations are content-neutral. However, as the Oberholzers found out, any regulation or attempt at governmental intrusion beyond this will likely run afoul of at least the Pennsylvania Constitution. While free speech will likely remain a hotly contested political and legal topic, its status in Pennsylvania’s front lawns seems settled, at least for the time being.