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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").


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