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The first step for the trial court in determining whether to grant a preliminary injunction is to balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. If the balance tips decidedly in the plaintiff's favor that is, if the harm to the plaintiff is likely to be significantly greater then the trial court need not apply the "likelihood of success" test. Instead, it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair grounds for litigation and thus for more deliberate investigation. The importance of probability of success increases as the probability of irreparable injury diminishes; and where the latter may be characterized as simply "possible," the former can be decisive. Even so, it remains merely one "strong factor" to be weighed alongside both the likely harm to the defendant and the public interest.
The Town of Bladensburg, Maryland issued Bladensburg Town Ordinance 3-80, which prohibited nude or semi-nude entertainment in any establishment serving alcoholic beverages or food within the town. The plaintiffs, three major shareholders of a restaurant-bar which offered the proscribed entertainment, challenged the constitutionality of the ordinance and filed a motion for preliminary injunction against the enforcement of the ordinance.
Under the circumstances, were the plaintiffs entitled to the remedy of injunction?
The court granted the plaintiffs’ motion for preliminary injunction because the balance of irreparable harm to the bar owners against the balance the likelihood of harm to the town tipped decidedly in the bar owners' favor, given that their First Amendment rights were involved. The bar owners therefore showed a likelihood of irreparable harm that outweighed the possible harm to the town's interests. Furthermore, the bar owners raised questions going to the merits that were so serious as to justify further deliberation. Thus, the injunction was appropriate.