[You might also read my earlier posts on the subject,
- Anti-Libel Injunctions and the Criminal Libel Connection
- The First Amendment and Criminal Libel Law
- The First Amendment and the Catchall Permanent Injunction
- The First Amendment and the Specific Preliminary Injunction
- How Specific Anti-Libel Injunctions Underprotect Speech
- The First Amendment and the Hybrid Permanent Injunction
- Restricting Injunctions to Libels on Matters of Private Concern?
Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]
So far, I’ve said virtually nothing about speaker mens rea, though that’s normally quite important in libel damages actions (and in criminal libel prosecutions). This is because the Court’s mens rea decisions aimed to solve a problem that is largely absent in hybrid injunction cases: the “chilling” of speakers caused by the risk of liability where the facts are uncertain.
Say that I’m contemplating writing about Bob Builder, because I think he has cut corners in making his building earthquake-safe. I think this is true, but I can’t be completely certain, and, even if I’m certain of the facts, I can’t be certain that the jury will agree. I may therefore be deterred from making my allegations, because I’m afraid of a massive damages verdict or even of a criminal verdict in those states that have criminal libel statutes. Mens rea requirements (sometimes actual malice, sometimes negligence) are meant to diminish this chilling effect of civil and criminal liability.
But hybrid anti-libel injunctions don’t create this hazard. First, I’m unlikely to be deterred from speaking up front by the mere risk that my speech will lead to an injunction; the injunction itself won’t send me to jail or cost me money. To be sure, few people are enthusiastic about being enjoined, and fighting an injunction does cost money. But that prospect is not as likely to be chilling as the prospect of jail or ruinous damages.
Second, once the court finds that my allegations were false and defamatory, and issues the injunction, I will indeed face jail or fines if I keep making the allegations. But at that point, the court will already have found that the statements were false. I would know they were false, or at least very likely false. The injunction itself would thus come pretty close to assuring that that I have “actual malice” (in the sense of knowledge or recklessness as to falsehood). More importantly, the injunction will only chill statements that have indeed been found to be false.
Indeed, recall that liability based on “actual malice” is tolerated even though it has some chilling effect on true speech (since a speaker might fear that the jury will misjudge both the truth of the statement and the speaker’s mental state). The much smaller potential chilling effect on true speech from injunctions should be tolerable too.
It might thus be constitutional to allow specific anti-libel injunctions based on a finding of falsehood, even without a showing of culpable mental state—just as some have suggested that a declaratory judgment should be allowable in such cases. And the principles of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. shouldn’t necessarily require a showing of mens rea as to falsehood in any contempt proceeding for violating the injunction.
But a showing of a culpable mental state might in any event be required by criminal contempt law principles, at least if I’m right that (as Part V.A argues) any anti-libel injunction must by its terms ban only libelous statements. To be guilty of criminal contempt for violating a court order, the defendant generally has to have acted “with knowledge that the act was in violation of the court order, as distinguished from an accidental, inadvertent or negligent violation of an order.” If the injunction expressly bars only libelous statements, which is to say only false, defamatory, and unprivileged statements, then a defendant shouldn’t be criminally punished for violating the injunction unless he knows the statements were false.
And that showing should usually be easy to make, given that the injunction places the speaker on notice that the judge or jury has found the speech to be false. In principle, the speaker might be able to evade punishment by persuading the criminal contempt jury that he was sincerely certain the statement was true, even despite that earlier finding. But in practice that is a claim that many juries will be unlikely to believe.
 It’s possible, of course, that, despite the court’s finding that the statement was false, I would still lack knowledge or recklessness as to the falsehood—whether because I delusionally believe that the statement is true (or almost certainly true) even though the court rightly found that it was false, or because I know that it’s true, perhaps from personal experience, and that the court erred. But from the perspective of the legal system, and its desire to minimize the chilling effect on true statements while still imposing liability on false statements, it should be adequate to treat the judicial finding of falsehood as a substitute for a finding of actual malice.
 This continuing chilling effect is one reason why Justices Black, Douglas, and Goldberg would have imposed a rule of absolute immunity in public concern libel cases. See New York Times Co. v. Sullivan, 376 U.S. 254, 293, 295 (1964) (Black, J., concurring in the judgment); id. at 300 (Goldberg, J., concurring in the judgment). But the majority was willing to tolerate this danger.
from Latest – Reason.com http://bit.ly/2Ghixms