THE PRELIMINARY INJUNCTION SHOULD BE STAYED BECAUSE IT IS A PRIOR RESTRAINT AGAINST
NON-COMMERCIAL CRITICISM THAT VIOLATES THE FIRST AMENDMENT AND IS NOT WARRANTED UNDER THE LANHAM
ACT.
This Court's decision about a stay pending appeal depends on four factors: likelihood of success on
appeal; irreparable injury to appellant if a stay is denied; whether issuance of the stay will
substantially injure appellee; and the public interest. Nader v. Blackwell, 230 F.3d 833, 834
(6th Cir. 2000). As the Court emphasized in Nader, these factors must be balanced, and the
balance of hardships is ultimately the most important consideration. Id. 834-835. If the injury
to the movant decidedly outweighs the injury to the non-moving party, it is sufficient that the appeal
presents serious questions on the merits. Grutter v. Bollinger, 247 F.3d 631, 632-633 (6th Cir.
2001).
The standard of review of a preliminary injunction is for abuse of discretion, but errors of law
are reviewed de novo. Moreover, because First Amendment rights are at stake in this case, the lower
court's factual findings about the nature of the speech are subject to "an independent examination of
the whole record in order to make sure that the [injunction] does not constitute a forbidden intrusion
on the field of free expression." Bose Corp. v. Consumers Union, 466 U.S. 485, 499 (1984);
Hurley v. Irish-American Gay Group, 515 U.S. 557 , 567 (1995). Accord, Bressler v. Fortune
Magazine, 971 F.2d 1226, 1229 (6th Cir. 1992) ("the reviewing court must examine for [itself] the
statements in issue and the circumstances under which they were made to see whether they are of a
character which the principles of the First Amendment protect").
