In Texas, when can a court enjoin speech in order to prevent tortious interference from occurring? There is no easy answer to this question. However, courts generally disfavor “prior restraint”–i.e., forbidding speech even before it occurs. Thus, Texas courts have held that even speech that is false or defamatory cannot be prohibited by court order. Of course, a person who has been defamed can always sue for damages, but Texas courts have been very reluctant to prevent the alleged defamatory speech from being spoken in the first instance.

In one case in the Austin Court of Appeals, some homeowners believed that the home they had purchased was defective. They began participating in demonstrations organized by Homeowners for Better Building. These demonstrations occurred in neighborhoods of homes built by the homebuilder, at the homebuilder’s main office, and at rallies in support of a home “lemon” law at the state capitol and city council meetings. The homebuyers also gave a television interview about the defective features of their home.

The homebuilder sued the homebuyers for (a) breach of contract, because they had violated a non-disparagement agreement; (b) tortious interference with contract; and (c) slander, libel and business disparagement. The homebuilder sought an injunction to enjoin the homebuyers “from engaging in these activities for the purpose of slandering, defaming, or publicly disparaging” the homeowner’s business and from “increasing damage to its reputation daily, including loss of customers and loss of goodwill.” The trial court granted a temporary restraining order and then a temporary injunction. The court of appeals reversed the content-based restrictions contained in the trial court’s order. The court explained that the homebuilder:

contends that the Brammers’ speech is not entitled to constitutional protection because it is misleading or false commercial speech. . . . We disagree. . . . 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. . . .

Speech may be unlawful, in the sense that it can subject someone to being sued for damages, but not be subject to being enjoined. The same court that approve a damages award may be unwilling to enter an injunction, because of the constitutional prohibition unpon prior restraint.