CONNOR GROUP, A REAL ESTATE INVESTMENT FIRM, LLC, et al. v. JAMES J. RANEY
C.A. CASE NO. 26653
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 13, 2016
[Cite as Connor Group v. Raney, 2016-Ohio-2959.]
T.C. NO. 13CV5706 (Civil Appeal from Common Pleas Court)
JEFFREY M. NYE, Atty. Reg. No. 0082247, 2623 Erie Avenue, Cincinnati, Ohio 45208 Attorney for Defendant-Appellant
OPINION
Rendered on the 13th day of May, 2016.
FROELICH, J.
{¶ 1} James J. Raney appeals from a judgment of the Montgomery County Court of Common Pleas, which granted Connor Group a preliminary injunction against him while
{¶ 2} For the following reasons, the judgment of the trial court will be reversed.
{¶ 3} The Connor Group, LLC, a real estate investment firm based in Montgomery County, Ohio, manages numerous apartment complexes around the country. Meridian Apartment Manager, LLC, owns Meridian Apartments in Franklin County, Ohio, which is managed by Connor Group. The precise nature of the plaintiff-companies’ affiliation is unclear; they will be referred to collectively as “Connor Group.” Raney is a former tenant of the Meridian apartment complex.
{¶ 4} In September 2013, Connor Group filed a complaint against Raney for defamation, alleging that, beginning in September 2012, Raney “undertook a campaign to publicly disparage them and to damage their business, trade, and reputation.” Raney had allegedly engaged in disseminating disparaging statements about Connor Group to its tenants, prospective tenants, and other business associates. Connor Group claimed that Raney‘s statements were untrue and/or misleading, that the statements were made with malice and with the intent to damage Connor Group‘s business and trade, and that the statements had, in fact, damaged its business. In January 2014, Connor Group filed
{¶ 5} In July 2014, Raney filed a motion for judgment on the pleadings, on the ground that his statements which formed the basis of Connor Group‘s claims were either true or not defamatory. Raney‘s motion relied on documents attached to his Amended Answer. Connor Group opposed the motion for judgment on the pleadings. On August 21, 2014, the trial court found that Raney had “utterly failed to comply” with Connor Group‘s discovery requests, and it granted Connor Group‘s motion to compel discovery. The trial court also ordered Raney to “cause a forensic image to be made of his computer” within seven days, to prevent the spoliation of evidence.
{¶ 6} On August 27, 2014, while the motion for judgment on the pleadings was still pending, Raney filed a notice of removal to the U.S. District Court for the Southern District of Ohio, based on diversity and the amount in controversy. Pursuant to
{¶ 7} On March 3, 2015, Connor Group filed a Motion for Temporary Restraining Order and Preliminary Injunction, asking that the court prohibit Raney from directly contacting its employees, tenants, and business associates. It asserted that it was likely to succeed on its claims and that it had no adequate remedy at law for the damage Raney was causing to its business. Raney opposed the motion, arguing that any prior restraint of his speech would violate the First Amendment and that Connor Group was unlikely to succeed on the merits of its claims.
{¶ 8} The trial court scheduled a hearing on the temporary restraining order for March 16, 2015, and a hearing for the preliminary injunction on May 11, 2015. The trial court did not take any action prior to its March 16 hearing to restrain Raney‘s conduct. The trial court‘s judgment states that Connor Group provided testimony at the March 16 hearing as to some of Raney‘s objectionable actions and his motivation, but no transcript of this hearing has been filed. On March 20, the trial court sustained the motion for “temporary restraining order and preliminary injunction“; the trial court‘s order placed
{¶ 9} We note that a temporary restraining order is issued ex parte, without notice to the other party, and lasts only until a hearing can be held. Ohio Service Group, Inc., v. Integrated & Open Systems, L.L.C., 10th Dist. Franklin No. 06AP-433, 2006-Ohio-6738, ¶ 13, fn. 2, citing Board of Edn. Ironton City Schools v. Ohio Dept. of Edn., 4th Dist. Lawrence No. CA92-39, 1993 WL 256320, * 2 (June 29, 1993). No temporary restraining order was filed in this case. A preliminary injunction is issued after notice and a hearing; it maintains the status quo until a full trial on the merits can be conducted. A permanent injunction is issued after a full trial on the merits. Id. The trial court held a hearing and, in the absence of a transcript of that proceedings, we presume that both parties were permitted to provide evidence at that hearing. Thus, the action taken by the trial court in this case is properly characterized as a preliminary injunction.
{¶ 10} Raney filed a timely appeal from the trial court‘s preliminary injunction.
{¶ 11} The assignments of error state:
The trial court issued an unconstitutional prior restraint when it issued an injunction against defendant-appellant Jim Raney‘s future speech.
Even if not for the constitutional prohibition against prior restraints, the trial court would have abused its discretion by issuing a preliminary injunction on the facts of this case.
{¶ 12} Although there are two “assignments of Error” and eight “Statements of Related Issues,” Raney‘s central assertion is that the trial court erred in granting a
Connor Group‘s Allegations
{¶ 13} Connor Group‘s complaint and its motion for a preliminary injunction alleged that Raney was making direct, targeted and harmful contacts with its tenants, investors, and business associates, that these contacts were ongoing and unrelenting, that Raney‘s statements about Connor Group were untrue or made with reckless disregard for their truthfulness, and that these contacts were causing “disruption and interference with its contractual and business relationships.” These allegations were supported by an affidavit from Connor Group‘s corporate counsel, Samuel E. Dowse, and various exhibits. By way of example, Dowse stated that Raney2 had done the following:
- Posted signs at Connor Group properties stating “DO NOT RENT HERE“;
- Sent postcards picturing scantily-clad female strippers in provocative positions to Connor Group employees at 46 apartment complexes around the country. The postcards stated: “What is the difference between a stripper and an employee of The Connor Group[?] You want the stripper to lie to you for a dollar.” The postcards also contained an Internet address with a name similar to Plaintiff‘s, a website operated by Raney. Raney subsequently acknowledged his responsibility for these postcards on his blog. Connor Group also asserted that the majority of its employees are women and that many employees were “concerned and offended” by the
mailing. - Interfered with Connor Grоup‘s contractual relationship with its own chief executive officer, Larry Connor, by sending a lengthy and disparaging email to the “the entire Homeowners’ Association Board” for the community to which Connor and his family recently moved;
- Caused, at least in part, the resignation of an employee of Connor Group in February 2015; the employee reported that Raney‘s “unrelenting harassment of and malicious comments toward him” played a part in his decision to resign;
- Interfered with Connor Group‘s business relationship with other employees. For example, one female employee at a Georgia property reported a “scary and super creepy” unwelcome encounter with Raney by email, in which he referenced her child, questioned whether she was being a good role model for the child, and questioned the effect her work with Connor Group was having on other mothers.
- Threatened legal action against a Connor Group employee in Ohio if she did not contact him to discuss Connor Group and its business practices;
- Contacted a current resident of a Connor Group property and engaged him in online communications in which Raney asserted that Connor Group keeps a portion of pest, garbage, and utilities fees paid by tenants for itself, without any benefit to the tenant;
- Contacted partners at an accounting firm with which Connor Group does business, claiming that Connor Group “fed HUD a bunch of bullshit,” that
Connor Group‘s legal problems could become the accountants’ legal problems, suggesting that Connor Group engages in “possible illegal or unethical behavior,” and advising that the accountants should “conduct [them]selves accordingly“; - Contacted a corporate investor in Connor Group, via the investor‘s social media site, and stated that residents of one of Connor Group‘s complexes in Georgia had sued the complex in a class action lawsuit for unsafe and uninhabitable conditions. Raney encouraged the investor to “look into the situation” at the properties that it “own[s] by proxy” and suggested that the investor‘s values “run counter” to those of Connor Group, which “does not deliver value for the price it extracts from working people“;
- Contacted real estate brokers with whom Connor Group contracted to sell one or more of its properties and interfered with those relationships by alleging various problems with the properties and attempted cover-ups by Larry Connor. Raney also directed the real estate brokers to an alleged newspaper article about concerns HUD had raised about the “veracity” of Connor Group‘s mortgage insurance application and the level of repairs needed at one of its properties, and stated that the sales brochure on a particular property was “way different” than what Raney had read about the property;
- Referenced a buyer investment group associated with the sale of a Connor Group property in his online blog, asserting surprise that the buyer had decided to proceed “despite cracked pool and like deception“;
- Contacted vendors, such as caterers of Connor Group events, asking them to “decline doing business with the Connor Group” and asserting the Connor Group has many dissatisfied customers who were willing to go to great lengths to “get satisfaction“;
- Contacted currеnt residents of Connor Group properties who posted favorable online reviews of their apartment complexes with information about his online sites disparaging the company, asserting that it was unethical for Connor Group to offer gift cards or rent credits for favorable reviews, and/or asking if the tenant had been offered compensation for a favorable review as part of Connor Group‘s “program” to inflate its online ratings, and offering that he hopes the tenants’ “luck holds out“;
- Posted disparaging messages on the Facebook page of a law firm with which Connor Group does business, including crude suggestions that sex acts interfered with the lawyers’ abilities to do their jobs.
{¶ 14} Further, Connor Group asserted in its Amended Complaint that, for the purpose of disparaging Connor Group, Raney made untrue statements on websites, social media accounts, and other Internet sources that he accessed or maintained. These statements included, but were not limited to, the following: Connor Group was “gaming the system” of online apartment ratings; engaged in a practice known as “slamming” by which it changed a consumer‘s utility provider without notice; engaged in deceptive practices; included illegal clauses in its leases; “piss[ed] down their employees’ backs“; did not care about residents; provided poor service; caused residents to fear Connor Group; paid for online reviews; refused to pay for needed repairs while diverting
{¶ 15} In a supplemental affidavit filed by Dowse in March 2015, Dowse stated that Raney “continued to contact individuals and businesses referenced in the Motion [for an injunction], as well as other organizations in the Dayton area.” Specifically, Dowse stated that Raney:
- Contacted a non-profit organization that was partnering with Connor Group on a charity event and threatened harm to the organization‘s relationships with its investors and performers if it participated in the event with Connor Group;
- Sent messages to realtors with whom Connor Group had a contract and to Larry Connor‘s homeowners’ association “welcoming” them to his lawsuit; the homeowners’ association сontacted Conner and insisted that he put a stop to these communications;
- Contacted the employee who had cited Raney‘s actions as a reason for his termination of employment with Connor Group at the employee‘s new business, made disparaging comments to the employee, and copied the employee‘s new co-workers on those correspondences.
Dowse concluded that Raney was continuing to contact individuals and companies with whom Connor Group does business and attempting to interfere with or harm those relationships.
Raney‘s Responses
{¶ 16} Raney opposed Connor Group‘s motion for a preliminary injunction by a
- With respect to the stripper postcard, he had not intended to harass anyone and did not even know which individuals would receive the postcards. He also claimed that a “mailbox company” with which he had worked on the postcards was “threatened” by Connor Group‘s law firm after the fact, even though it had no role in making or mailing the postcards.
- His email to the homeowners’ association of Larry Connor‘s nеw residence included links to news articles about a town in North Carolina that fined a Connor Group apartment complex for damaging “buffer vegetation” at that apartment complex; he asserted that Connor Group “should be embarrassed about its conduct“;
- Regarding the employee who found Raney‘s references to her child “scary and super creepy,” Raney stated that he had only one contact with her, and he stopped contacting her when she requested that he do so, until he responded to a LinkedIn request from someone with the same name almost a year later;
- Raney denied that his contact with other Connor Group employees or with any tenant, as documented by attachments to Dowse‘s affidavit, was “unwelcome“;
- Raney identified a link to a Columbus Dispatch article about the present lawsuit, which was attached to his email to the Connor Group accountants; the article asserts that government records from HUD “describe conditions similar to some of the allegedly defamatory statements Raney made on his
blog and other online forums.” - Raney refers, without documentation, to alleged statements by a judgе that there may have been “a disturbing pattern of serious mold, water leaks, and maintenance issues” at a Connor Group property. The affidavit suggests that this is the same property about which Raney had claimed that a class action lawsuit was pending, but Raney did not attach any evidence that such a lawsuit existed or that a judge had made the alleged statements.
- Regarding his alleged contacts with a caterer of Connor Group events, Raney stated that the caterer told him (Raney) that he would not cease doing business with Connor Group, and that Raney stopped contact with the caterer when asked to do so.
- Raney also asserted that he had spoken and acted lawfully about Connor Group and its activities, that he had stopped making Internet posts many months earlier, and that he had not been on any Connor Group property for nine months. Moreover, Raney asserted that his intention was not to harass anyone but to act on his “moral duty to alert people to what I believe is unethical and improper conduct.”
Issuance of a Preliminary Injunction
{¶ 17} As stated above, the purpose of a preliminary injunction is to preserve the status quo between the parties pending a trial on the merits. A preliminary injunction is an extraordinary remedy; therefore, the moving party has a substantial burden in order to be entitled to the injunction. KLN Logistics Corp. v. Norton, 174 Ohio App.3d 712, 2008-Ohio-212, 884 N.E.2d 631, ¶ 11 (8th Dist.), quoting Sinoff v. Ohio Permanente Med. Group, 146 Ohio App.3d 732, 740, 767 N.E.2d 1251 (8th Dist.2002). A preliminary
{¶ 18} With respect to a preliminary or temporary injunction,
A temporary order may be granted restraining an act when it appears by the petition that the plaintiff is entitled to the relief demanded, and such relief, or any part of it, consists in restraining the commission or continuance of such act, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, threatens or is about to do, or is procuring or permitting to be done, such act in violation of the plaintiff‘s rights respecting the subject of the action, and tending to render the judgment ineffectual.
{¶ 19} To obtain the equitable remedy of a preliminary injunction, a party must show: (1) a substantial likelihood of success on the merits, (2) the existence of irreparable harm if an injunction is not issued, (3) that third-parties will not be unjustifiably harmed if an injunction is issued, and (4) that granting an injunction will serve the public interest. Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267, 747 N.E.2d 268 (1st Dist. 2000); Davis v. Widman, 184 Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, ¶ 29 (3d Dist.). See also
{¶ 20} The party seeking the preliminary injunction must establish each of these elements by clear and convincing evidence.3 Stoneham at 268; ITS Fin., L.L.C. v. Gebre, 2d Dist. Montgomery Nos. 25416, 25492, 2014-Ohio-2205, ¶ 23, citing Diconix, Inc. v. Lane, 54 Ohio App.3d 59, 63, 560 N.E.2d 1319 (4th Dist.1988). “Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the еxtent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” Id., citing State v. Bluser, 2d Dist. Montgomery No. 18856, 2002 WL 191567, * 1 (Feb. 8, 2002).
{¶ 21} Irreparable injury or harm, which must be shown for injunctive relief, “is defined as an injury ‘for the redress of which, after its occurrence, there could be no plain, adequate and complete remedy at law, and for which restitution in specie (money) would be impossible, difficult or incomplete.‘” Dimension Serv. Corp. v. First Colonial Ins. Co.,
{¶ 22} What a plaintiff must show as to the degree of irreparable harm varies inversely with what the plaintiff demonstrates as to its likelihood of success on the merits. Cleveland Elec. at 14, citing Friendship Materials at 105; Escape Ent., Ltd. v. Gosh Ent., Inc., 10th Dist. Franklin No. 04AP-834, 2005-Ohio-2637, ¶ 48. See also Roth v. Bank of Commonwealth, 583 F.2d 527, 538 (6th Cir. 1978). When there is a strong likelihood of success on the merits, preliminary injunctive relief may be justified even though plaintiff‘s case of irreparable injury may be weak. Cleveland Elec. at 14; Roth at 538; Mike McGarry & Sons, Inc. v. Gross, 8th Dist. Cuyahoga No. 86603, 2006-Ohio-1759, ¶ 19, citing Blakeman‘s Valley Office Equip., Inc. v. Bierdeman, 152 Ohio App.3d 86, 2003-Ohio-1074, 786 N.E.2d 914, ¶ 21 (7th Dist.). Conversely, where the plaintiff‘s chance of success on the merits of the claim is low, there generally must be a high likelihood of irreparable harm to justify injunctive relief.
{¶ 23} When a preliminary injunction is granted, it must be specific in terms and it must describe in reasonable detail, and not by reference to other documents in the record, the act or acts to be restrained.
Standard of Appellate Review
{¶ 24} A trial court‘s decision to grant or deny a motion for a preliminary injunction is reviewed on appeal for an abuse of discretion. Garono, 37 Ohio St.3d 171, 173, 524 N.E.2d 496. Because a trial court acts within its discretion in framing an injunctive order, it “may act within the latitude implied by that discretion.” Superior Sav. Assn. v. Cleveland Council of Unemployed Workers, 27 Ohio App.3d 344, 346, 501 N.E.2d 91 (8th Dist.1986), citing Richmond Hts. v. Bd. of Cty. Commrs., 112 Ohio App. 272, 166 N.E.2d 143 (8th Dist.1960). An abuse of discretion implies that the trial courts attitude was arbitrary, unreasonablе, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
The Trial Court‘s Decision
{¶ 25} Before discussing the trial court‘s decision in detail, we note that some of the acrimony between Raney and Connor Group unfortunately seeped into the parties’ briefs. Comments that the court‘s order violated “common decency,” that “no reasonable person” could have issued the decision the trial court did, that the trial court abdicated its responsibility, and that one side makes “absurdly overbroad arguments” are, somewhat ironically, completely protected by the right to free speech, but do not help either side‘s position.
Substantial Likelihood of Success
{¶ 26} The first element to be considered before ruling on a request for a preliminary injunction is whether there is a substantial likelihood that the party seeking
{¶ 27} There are five elements common to the offenses of tortious interference with a contractual or business relationship: 1) the existеnce of a valid contract or business relationship between the plaintiff and a third party; 2) the defendant‘s knowledge of the contractual or business relationship; 3) the defendant‘s intentional inducement of the third party to breach or terminate the contractual or business relationship; 4) the absence of justification for the defendant‘s conduct; and 5) damages resulting from the defendant‘s actions. Schlaegel v. Howell, 2015-Ohio-4296, 42 N.E.3d 771, ¶ 31 (2d Dist.), citing Kademian v. Marger, 2d Dist. Montgomery No. 24256, 2012-Ohio-962, ¶ 93 and Wolf v. McCullough-Hyde Memorial Hosp., 67 Ohio App.3d 349, 355, 586 N.E.2d 1204 (12th Dist.1990) (discussing tortious interference with a business relationship); Sacksteder v. Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, ¶ 78, citing Fred Siegel Co., LPA v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), paragraph one of the syllabus (discussing tortious interference with a contract). To prevail on such a claim, the contractual or business relationship must actually be terminated as a result of the defendant‘s conduct, or a third-party must refuse to enter into a contract or business relationship with the plaintiff as a result of that conduct. Martin v. Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 63 (4th Dist.).
{¶ 28} The trial court found that there was no question that business relationships existed between Connor Group and the third parties with whom Raney had been in contact, and that Raney had knowledge of these relationships. Thus, it focused its
{¶ 29} With respect to the employee who left his employment with Connor Group after being contacted by Raney, the trial court found that, even assuming Raney‘s actions caused the employee to terminate his employment, Connor Group had failed to allege any damages that it had suffered as a result of the resignation. The court observed that no contract had existed with this employee. With respect to other business relationships, such as those with other employees, tenants, realtors, and investors, the court noted that Connor Group had alleged arguably improper conduct, but that it had not set forth clear and convincing evidence of actual interference with the business relationships or of damages resulting from the alleged conduct. Based on these conclusions, the trial court found that there was not a “strong likelihood” оf Connor Group‘s success on the merits of its claims.
Irreparable Harm
{¶ 30} However, noting that no one element is dispositive in a request for injunctive relief, and notwithstanding its finding that Connor Group‘s claims did not have a “strong likelihood” of success, the court recognized that matters concerning reputation “can constitute irreparable harm for which there is no adequate remedy at law.” Specifically, the court observed that 1) Connor Group had presented evidence that an employee resigned due, in part, to Raney‘s actions; 2) Raney had asked investors in Connor Group to divest; 3) Raney‘s only intent was to harm Connor Group, because he was not in competition with Connor Group and had “no legitimate interest in competing
{¶ 31} The trial court found that Connor Group had presented evidence demonstrating the potential for irreparable harm to its reputation and that Raney‘s “intеntional interferences” with Connor Group‘s business relationships “may prospectively cause injury by way of a terminated contract or business relationship with damages.” Having concluded that Connor Group‘s likelihood of success was low, we infer that the trial court found that the risk of irreparable harm was high. The court concluded that a preliminary injunction was appropriate to prevent irreparable injury for which there would be no adequate remedy at law and to maintain the status quo while the lawsuit was pending, notwithstanding the absence of substantial evidence that Connor Group would succeed on the merits of its claims.
Harm to Third Parties and Public Interest
{¶ 32} Additionally, the trial court found that a “narrowly tailored injunction would not harm third parties” and that the injunction served the public interest, because the “public interest weighs in favor of protecting contracts and business relationships.”
{¶ 33} In sum, the trial court had little, if any, doubt that Connor Group had contractual and business relationships of which Raney was aware, and that Raney had tried to induce third parties to breach or terminate their relationships with Connor Group. The court acknowledged that Connor Grouр had not presented strong evidence in support of its underlying claims for tortious interference with a contractual or business relationship, but found that the nature of the potential harm and the inadequacy of a remedy at law
The Terms of the Injunction
{¶ 34} The trial court issued a preliminary injunction against Raney which prevented him from directly contacting any of the following businesses or individuals, “with the intent to harass Connor Group” or those businesses or individuals or to cause termination of their contractual or business relationships with Connor Group:
- Connor Group employees;
- Connor Group investors, prospective purchasers, and real estate brokers;
- Current residents of any property managed by Connor Group;
- Professional services firms including, but not limited to, accountants and law firms, with which Connor Group does business;
- Vendors with which Connor Group does business;
- Any other person or entity with which Connor Group has contractual or business relationships.
The trial court did not restrict Raney‘s ability to maintain his websites or blogs or to othеrwise communicate his concerns about Connor Group publicly, including any indirect contacts by those means with the people or groups listed in the preliminary injunction.
First Amendment Issues
{¶ 35} Notwithstanding its conclusion that Connor Group had a low likelihood of success on the merits of its claims, the trial court found that the preliminary injunction was warranted because of the risk of irreparable harm to Connor Group‘s reputation and
{36} Raney has cited Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) and Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir.1996) for the proposition that we must review prior restraints involving free speech de novo. Bose was a product disparagement case, the outcome of which turned on a finding of actual malice against the company. The constitutional and factual questions presented therein were entwined with the court‘s finding of actual malice. Bose had nothing to do with prior restraint of speech or a preliminary injunction, and therefore does not stand for the propоsition that we must review any preliminary injunction touching on free speech under a de novo standard of review.
{37} The other case on which Raney relies, Bankers Trust, dealt with an injunction prohibiting a business magazine from publishing an article disclosing the contents of documents “placed under the seal of secrecy by the parties to a lawsuit.”4 Bankers Trust discussed the understandable inclination of a court to grant an emergency restraining order to preserve the status quo as weighed against the media‘s need to publish news promptly. However, the court held that a restraining order on the release
{38} Bankers Trust and Bose do not directly support Raney‘s argument that we must review a preliminary injunction involving First Amendment questions de novo. They do highlight, however, that “an added layer of complexity” exists where a restraining order or injunction touches upon actions arguably protected by the First Amendment. Bankers Trust at 225-226. Where a prior restraint on free speech is involved, “the hurdle is substantially higher” to justify a preliminary injunction; more than the showing of a party‘s likelihood of success on the merits and/or the threat of irreparable injury must be considered. Id. at 226-227. Under such circumstances, the trial court is entitled to less latitude than might normally be extended when we review the issuance of a preliminary injunction for an abuse of discretion.
{39} The First Amendment protects Raney‘s right to make derogatory statements about Connor Group, even if they damage Connor Group‘s reputation (subject, in certain situations, to a claim for defamation). Insofar as the alleged tortious acts committed by Raney involved speech, and the preliminary injunction restrained Raney‘s ability to speak to various entities and individuals, we must examine the injunction with the “added layer of complexity” presented by the First Amendment.
{40} There is much discussion and disagreement in the parties’ briefs about the permissibility of prior restraint of speech through a preliminary injunction, the standard under which such a restraint must be reviewed, whether Raney‘s actions constitute “speech” entitled to protection under the First Amendment, and whether his statements touch on an issue of public concern. The right to free speech is strongly protected under the law, but some of the free speech issues raised by the parties are of limited relevance where a preliminary injunction is issued in a lawsuit involving two private entities.