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Constitutional Law No. 03-03-00009-CV, 7/24/2003. FACTS: This is an interlocutory appeal challenging the district court’s order granting a temporary injunction. The appellee, KB Home Lone Star L.P., applied for and obtained a temporary injunction to enjoin the appellants, Andrew and Yolanda Brammer, from defaming or disparaging KB Home. The temporary injunction also places restrictions on the Brammers’ participation in demonstrations at KB Home subdivisions. HOLDING: The court modifies the temporary injunction and, as modified, affirms the district court’s order granting the temporary injunction. The court concludes that portions of the injunction infringe upon the Brammers’ freedom of expression guaranteed by the First Amendment to the United States Constitution and by article I, �8 of the Texas Constitution. KB Home contends that the Brammers’ speech is not entitled to constitutional protection because it is misleading or false commercial speech. KB Home cites Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980), and Amalgamated Acme Affiliates Inc. v. Minton, 33 S.W.3d 387 (Tex. App. – Austin 2000, no pet.), and argues that in light of these cases, Hajek v. Bill Mowbray Motors Inc., 647 S.W.2d 253 (Tex. 1983), must have been wrongly decided because it employed the “threat of danger” test to commercial speech. The court disagrees. Neither the Brammers’ speech nor the speech involved in Hajek can be classified as commercial speech. Commercial speech is expression related solely to the economic interests of the speaker and its audience. KB Home argues that the Brammers’ speech relates “solely to their economic interest in their home and to influencing the economic decision of their audience on whether to buy a home from KB Home or some other homebuilder.” However, the identity of the speaker is often crucial in determining whether speech is commercial speech. This case, like Hajek, involves dissatisfied customers who are not engaged in any competing commercial activity but rather are attempting to inform the community that a business is profiting from defective products. Regardless of the veracity of such disparagement, the criticism of the business can be reasonably related to social views that are strongly held by the speakers. Here, the Brammers spoke as members of a group advocating legislation to protect buyers of new homes from unscrupulous homebuilders, which arguably is an issue of public concern. The court also rejects KB Home’s attempt to independently rest the temporary injunction on its breach-of-contract claim. The court recognizes that circumstances can arise in which a temporary injunction is appropriate to preserve the status quo pending an award of damages at trial. The court does not find a Texas case upholding a temporary injunction to enforce a contract like the one at issue here: a contract not to defame or disparage on issues that, arguably, are of social concern. Here, as ultimate relief on its breach of contract claim, KB Home asks for actual and consequential damages sustained as a result of the Brammers’ public comments and disparagement, as well as a permanent injunction to enforce the Agreement. But KB Home failed to adduce any evidence at the temporary injunction hearing tending to show that the injury suffered as a result of the Brammers’ breach of the agreement not to defame or disparage KB Home amounts to an injury different from that normally suffered as a result of defamation or business disparagement. Given that a remedy must be determined by the harm suffered, the court does not find that KB Home’s evidence of probable interim injury rises to the unique circumstances necessary to justify a temporary injunction pending an award of damages at trial. Finally, KB Home argues that the Brammers waived their constitutional protection against prior restraint by entering into the agreement under which KB Home would compensate the Brammers for their inconvenience and give them items outside their warranty. The court is unwilling to hold that, for purposes of this temporary injunction, the Brammers clearly waived their constitutional rights. Thus, this case is controlled by the basic rule in Hajek that equity, in the absence of independent grounds of equitable jurisdiction, lacks the power to issue an injunction restraining defamatory or disparaging speech.. If the applicant’s allegations fail to present a valid legal theory to support a probable right to recover, a temporary injunction will be improper. Tenet Health Ltd. v. Zamora, 13 S.W.3d 464 (Tex. App. – Corpus Christi 2000, pet. dism’d w.o.j.). Here, because the court cannot imply that the Brammers waived their free speech rights, the court concludes that KB Home has failed to present a valid legal theory for its argument that as a matter of law the temporary injunction does not constitute a prior restraint. The court holds that the district court had no discretion to grant the temporary injunction based on its finding of probable injury because those portions of the injunction designed to remedy the injury violate constitutional guarantees. Accordingly, the district court’s order is modified to delete paragraphs (a), (b) and (f). Paragraphs (c), (d) and (e) of the temporary injunction create content-neutral restrictions on the Brammers’ speech on the basis that the Brammers picketed using bullhorns and that Andrew Brammer “physically threatened and verbally abused [KB Home]‘s employees, actual customers and prospective customers.” The district court found that a buffer zone would serve “significant governmental interests such as maintaining public safety and order, including the psychological and physical well-being of [KB Home]‘s employees, and actual and prospective customers; and [KB Home]‘s private property interests.” After reviewing the evidence, the court concludes that the buffer zone is unconstitutional. However, the court will let stand, with slight modifications, the other content-neutral restrictions on the Brammers’ participation at the demonstrations. OPINION: Law, C.J.; Law, C.J., Smith and Puryear, JJ.

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