Butler v. Small

1

TIERRA BUTLER Appellee v. ISIAH SMALL Appellant

No. 545 MDA 2023

No. J-A02023-24

Superior Court of Pennsylvania

March 4, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered March 15, 2023 In the Court of Common Pleas of Dauphin County Civil Division at No(s) 2021-CV-03186-AB

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM

KING J.

Appellant Isiah Small, appeals from the order entered in the Dauphin County Court of Common Pleas, which found him in indirect criminal contempt ("ICC") for violating an order under the Protection from Abuse ("PFA") Act. We affirm.

In its opinion, the trial court set forth the relevant facts and procedural history of this case as follows:

On January 28, 2022, [Appellee] Tierra Butler…obtained an extended final [PFA] order against [Appellant]. The PFA order provided that [Appellant] was to have no contact with [Appellee] and that [Appellant] was prohibited from posting any remarks about or images of [Appellee] on any social media. On February 27, 2023, it was alleged that [Appellant] violated the no contact PFA order by posting about [Appellee] on Facebook on or about February 1, 2023. [Appellee] was sent a photo of the Facebook post a few days later and reported the violation to the police. This matter came to the court for an [ICC] hearing on March 15, 2023. At the conclusion of the hearing, [Appellant] was found in contempt of the PFA order and sentenced to serve no less than three months nor more than six months in the Dauphin County Prison.

[Appellant] filed a timely notice of appeal on April 11, 2023. This court then directed [Appellant] to file a concise statement of matters complained of on appeal, which he did on May 3, 2023.

(Trial Court Opinion, filed June 8, 2023, at 1).

Appellant raises one issue for our review:

Whether [Appellant's] [ICC] conviction must be vacated when the basis of the violation was an unconstitutional prior restraint on [Appellant's] First Amendment rights?

(Appellant's Brief at 4).

Appellant argues that PFA orders do not escape constitutional limitations. Appellant asserts that restraining any speech about a PFA plaintiff constitutes a prior restraint of speech which is subject to strict scrutiny. Appellant acknowledges that this Court has previously held that such restrictions are constitutional in Commonwealth v. Lambert, 147 A.3d 1221 (Pa.Super. 2016). Nevertheless, Appellant insists that this Court's decision in Lambert requires re-examination. Appellant avers that in Lambert, this Court held that the PFA order at issue was not content based, because the restraint was not on the content of the speech, but on the "target of the speech." (Appellant's Brief at 11) (citing Lambert, supra at 1229). Appellant claims, however, that the Lambert Court failed to "provide actual analysis as to whether the restriction, as stated, was content based." (Id. at 12). Appellant relies on authority from the Supreme Court of Ohio, concluding that the "target" of such speech necessarily concerns the subject matter of the speech.

Appellant further contends that the United States Supreme Court has cast doubt on the "target" or "content" distinction. Appellant relies on Packingham v. North Carolina, 582 U.S. 98, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017), in which the United States Supreme Court held that a North Carolina statute prohibiting sex offenders from accessing social networking websites violated the First Amendment of the Constitution. Appellant suggests that Packingham casts doubt on the analytical framework of Lambert. Appellant also submits that the decision of Constantakis v. Bryan Advisory Services, LLC, 275 A.3d 998 (Pa.Super. 2002), overruled Lambert to the extent that Lambert considered the restraint imposed by a PFA order as restricting the "target" of the speech as opposed to its content.^[1]

Appellant avers that the restriction in this case was not content neutral as the trial court opined. Appellant claims that because the PFA order limited his speech, it must be narrowly tailored to serve the compelling state interest of protecting PFA plaintiffs. Appellant insists the blanket ban on speech here was not narrowly tailored, because it did not merely restrict derogatory, harassing, specifically targeted, or threatening statements. Appellant emphasizes that the restraint on his speech did not allow for any distinction between kind commentary and harassment. Appellant concludes that this Court should overrule Lambert and hold that the PFA condition in this case is unconstitutional. We disagree.

In reviewing First Amendment cases, this Court must conduct a review of the entire record. In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 590 Pa. 431, 913 A.2d 178 (2006). Our standard of review is de novo and our scope of review is plenary. See id. As our Supreme Court has explained:

The First Amendment provides that "Congress shall make no law…abridging the freedom of speech."10 U.S. Const. amend. I. …

¹⁰ The First Amendment's protection of freedom of expression is made applicable to the states through the Fourteenth Amendment. See Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 665, 71 L.Ed. 1108 (1927).

When the government restricts expression due to the content of the message being conveyed, such restrictions are allowable only if they pass the strict scrutiny test. That test is an onerous one, and demands that the government show that the restrictions are "(1) narrowly tailored to serve (2) a compelling state interest." Republican Party of Minnesota v. White, 536 U.S. 765, 775, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).

Yet, strict scrutiny is not applied simply because a plaintiff raises a claim that its freedom of expression has been curtailed. The High Court has recognized that where the governmental regulation applies a content-neutral regulation to expressive conduct, strict scrutiny is an inappropriate test to apply. Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). The test which is applied to such content-neutral regulations was first enunciated in the seminal case of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O'Brien, the defendant was convicted of violating a statute which criminalized the act of destroying or mutilating a draft card. The defendant had burned his Selective Service registration certificate in order to convince people to adopt his anti-war beliefs. The defendant argued that the conviction could not stand as the statute criminalizing the destruction of draft cards ran afoul of the First Amendment.

In analyzing this claim, the O'Brien Court stated that where expressive and non-expressive conduct are combined in the same activity, "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." Id. at 376, 88 S.Ct. 1673. The O'Brien Court decreed that such "government regulation is sufficiently justified" if:

1) Promulgation of the regulation is within the constitutional power of the government;

2) The regulation furthers an important or substantial governmental interest;

3) The governmental interest is unrelated to the suppression of free expression; and

4) The incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest.

Id. at 377, 88 S.Ct. 1673. The O'Brien Court found that all four prongs were met and thus denied the defendant relief.

In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, supra at 440-42, 913 A.2d at 183-84. See also Oberholzer v. Galapo, 274 A.3d 738 (Pa.Super. 2022) (explaining that government regulation of speech is content based if law applies to particular speech because of topic discussed or idea or message expressed; in other words, restriction is content based if either face of regulation or purpose of regulation is based upon message speaker is conveying; by contrast, if purpose of restriction is unrelated to expression of content, restriction is deemed neutral, even though speech restriction may have 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 content of regulated speech).^[2]

In Lambert, the court entered a PFA order directing that the appellant "may not post any remark(s) and/or images regarding Plaintiff, on any social network(s), including, but not limited to, Facebook, Myspace, Twitter, or any other electronic networks." Id. at 1223 (emphasis omitted). The appellant violated this provision of the PFA order, and the court convicted him of ICC. On appeal, the appellant alleged that the PFA order violated his First Amendment rights. Specifically, the appellant claimed the provision of the PFA order at issue: (1) represented an unlawful content based restriction on protected speech; (2) imposed an impermissible blanket prohibition on any remark regarding the plaintiff without demonstrating how it advanced a compelling government interest; (3) represented an impermissible prior restraint on protected speech; and (4) imposed an unconstitutionally vague and overbroad restriction on social media usage. Id. at 1227.

In analyzing the appellant's claims, this Court explained:

A review of the PFA Order at bar reveals that its proscription suffers from none of the infirmities [the a]ppellant alleges in his argument, for the proscription in question is not content-based, clearly advances an important governmental interest unrelated to speech, and is narrowly-tailored to advance this interest. It is undisputed that the proscription, itself, is limited to social and electronic network remarks "regarding Pla

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