Is it ok to call someone a "scab"?
miz...@webtv.net
Old Dominion Branch No. 496, NALC, AFL-CIO
V.
Austin, et al
Appeal from Supreme Court of Virginia
REVERSED
APPELLANT: union - APPELLEES: Austin +
Appellant published a list of "scabs" in its newsletter, including the
names of the Appellees, together with a perjorative definition
(belittling, derogatory) of "scab" using the word "traitor.'
Appellees brought libel actions against the Appellants.
The Appellant sought to have the libel actions dismissed on the ground
that the publication had First Amendment and Federal labor law
protection.
The court overruled the Appellant's motions to dismiss. The court
interpreted "Linn v. Plant Guard Workers, 383 U.S. 53," saying that
"Linn" permitted the application of State libel laws as long as the
challenged statements were made with "actual malice," defined as being
"actuated my some sinister or corrupt motive such as "hatred," "personal
spite," "ill will," or "desire to injure" the Appellees with such gross
indifference and recklessness as to amount to a wanton or wilful
disregard of the rights of the Appellees.
["injure" does not mean to "physically assault" - it means "damage" or
"wrong" in regard to reputation or rights in regard to defamation as I
understand it here.... mizz]
The court's instruction defining "malice" in common law terms was
erroneous and reflected a misunderstanding of "Linn," which adopted the
"reckless-or-knowing-falsehood" test of "New York Times Co. v.
Sullivan, 376 U.S. 254. PP. 280-282.
The State libel award arising out of the publication of the union
newsletter here did not comport with the protection for freedom of
speech in labor disputes recognized in "Linn."
The use of the epithet "scab," which was literally and factually true,
and is common parlance in labor disputes, was protected under Federal
law. Publication of the perjorative definition, likewise, did not
provide grounds for a lawsuit since the use of words like "traitor"
cannot be construed as representations of fact, and their use in a
figurative sense to maifest the union's strong disagreement with the
views of workers opposing unionization is also protected by Federal law.
CF. Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6.
PP. 282-287.
Justice J. Marshall delivered the opinion of the court:
This case involves 3 State libel judgements imposing liability of
$165,000 against a labor union as a result of statements made in a union
newsletter during a continuing organizational drive. The question
presented is whether these libel judgements can be squared with the
freedom of speech in labor disputes guaranteed under Federal law.
Appellees, Henry M. Austin, L.D. Brown, and Roy P. Ziegengeist were
letter carriers in Richmond who neither were members of the union nor
paid any dues or fees to the union.
The union was already the selected bargaining representative by a
majority of the postal workers in the unit. In the spring of 1970, the
union was engaged in an ongoing effort to organize the remainder of the
letter carriers. As part of the campaign, the union periodically
published in its monthly newsletter, The Carrier's Corner, a list, under
the heading of "List of Scabs," of those who had not yet joined the
union. Appellee Austin complained to the Richmond Postmaster and the
President of the union that the union was trying to coerce him into
joining. Austin said that he did not know what a "scab" was, but that
he was going to sue the union if he was called a "scab" again.
Several weeks later, the June issue of The Carrier's Corner was
distributed to members. Once again, the newsletter contained a "List of
Scabs," including the names of the 3 Appellees, as well as 12 others.
Just above the list of names, the newsletter noted that "some co-workers
are in a quandary as to what a scab is" and said "we submit the
following." There followed a well-known piece of trade union
literature, generally attributed to author Jack London, which purported
to supply a definition:
[<snip - the piece of literature is posted often in the NG. If anyone
is interested, perhaps it will be posted again - piece is omitted
here...mizz]
Appellees filed the defamation actions against the local union and the
National union shortly after the June newsletter was published.
In "Linn," an assistant general manager of Pinkerton's Detective Agency
brought suit under State libel laws against the plant guard workers in a
diversity action in Federal court. "Linn" alleged that statements made
in a union leaflet during a campaign to organize the company's
employees, which charged him with "lying" to the employees and "robbing"
them of pay increases, were false and defamatory. The District court
dismissed the complaint on the ground that the NLRB had exclusive
jurisdiction over the subject matter of the complaint, finding that the
union's conduct would arguably be an unfair labor practice under 8(b) of
the NLRA, as amended, 29 U.S.C. 158(b), and that the court's decision in
San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959),
therefore compelled dismissal on pre-emption grounds. The court of
appeals affirmed [to reassert or agree with].
[pre-emption is a doctrine based on the Supremacy Clause of the U.S.
Constitution (Article VI, clause 2) which holds that Federal legislation
overrides State legislation when both deal with the same subject
matter....... mizz]
.............. the court recognized the danger that unrestricted libel
actions under State law could easily interfere with Federal labor policy
- the court observed:
"Labor disputes are ordinarily heated affairs; the language that is
commonplace there might well be deemed actionable per se in some State
jurisdictions. Indeed, representation campaigns are frequently
characterized by bitter and extreme charges, countercharges, unfounded
rumors, vituperations, personal accusations, misrepresentations and
distortions. Both labor and management often speak bluntly and
recklessly, embellishing their respective positions with imprecatory
language." 383 U.S., at 58.
This freewheeling use of the written and spoken word, we found, has been
expressly fostered by Congress and approved by the NLRB. Thus, Mr.
Justice Clark acknowledged that there was "a Congressional intent to
encourage free debate on issues dividing labor and management," Id., at
62, and noted that "the board has given frequent consideration to the
type of statements circulated during labor controversies, and.........
it has allowed wide lattitude to the competeing parties." Id., at 60.
The court therefore found it necessary to impose substantive
restrictions on the State libel laws to be applied to defamatory
statements in labor disputes in order to prevent "unwarranted intrusion
upon free discussion envisioned by the Act." Id., at 65.
The court looked to the NLRB's deisions, and found that "although the
Board tolerates intemperate, abusive and inaccurate statements made by
the union during attempts to organize employees, it does not interpret
the Act as giving either party license to injure the other intentionally
by circulating defamatory or insulting material known to be false."
Id., at 61.
The court therefore found it appropriate to adopt by analogy the
standards of New York Time Co. v. Sullivan, 376 U.S. 254 (1964).
Accordingly, we held that libel actions under State law were pre-empted
by the Federal labor laws to the extent that the State sought to make
actionable defamatory statements in labor disputes which were published
without knowledge of their falsity or reckless disregard for the truth.
In this case, of course, the relevant Federal law is Executive Order
11491 rather than the NLRA. Nevertheless, we think that the same Federal
policies favoring uninhibited, robust, and wide-open debate in labor
disputes are applicable here, and that the same accommodation of
conflicting Federal and State interests necessarily follows.
The basic provisions of the Executive Order establish a labor/management
relations system for Federal employment which is remarkably similar to
the scheme of the NLRA. It is apparent that the Order adopted in large
part the provisions and policies of the NLRA as its model.
In light of this basic purpose, we see nothing in the Executive Order
which indicates that it intended to restrict in any way the robust
debate which has been protected under the NLRA. Such evidence as is
available, rather, demonstrates that the same tolerance for union speech
which has long been characterized our labor relations in the private one
of the regional adminstrators under the Executive Order Program has
stated, in the context of union organizing campaigns.
"It is a cliche' by now but, nonetheless, an embedded policy in labor
relations that electioneering or campaigning has a broad tolerance. We
do not encourage, nor do we prohibit, the exaggeration, the
dissemination of half-truth, or accusation. In sum, we leave it to the
employee to decide."
The assistant secretary has held that agency censorship of union
materials, even if only to delete "slanderous" or "inflammatory"
material, is unlawful interference with employee rights protected under
the Order and an Unfair Labor Practice under 19(A)(1), Los Angeles Air
Route Traffic Control Center, Case No. 72-CA-3014 (26); A/SLMR No. 514,
July 30, 1973, P. A-10).
The primary source of protection for union freedom of speech under the
NLRA, however, particularly in an organizational context, is the
guarantee in 7 of the Act of the employee's rights "to form, join, or
assist labor organizations."
"Basic to the right guaranteed to employees in 7 to form, join, or
assist labor organizations, is before the Norris-Laguardia Act and the
Wagner Act - this court recognized a right in unions to "use all lawful
propaganda to enlarge their membership." NLRA v. Drivers Local 639, 362
U.S. 274, 279 (1960) (Citations omitted).
Vigorous exercise of this right "to persuade other employees to join"
must not be stifled by the threat of liability for the overenthusiastic
use of rhetoric or the innocent mistake of fact, thus, the Board has
concluded that statements of fact or opinion relevant to a union
organization campaign are protected by 7, even if they are defamatory
and prove to be erroneous, unless made with knowledge of their falsity.
See, E.G. Atlantic Towing Co., 75 NLRB 1169, 1171 - 1173 (1948). The
court in "Linn" recognized the importance of this 7 protection, in words
quite pertinent to this case.
"Likewise, in a number of cases, the Board has concluded that epithets
such as "scab," "unfair," and "liar" are commonplace in these struggles
and not so indefensible as to remove them from the protection of 7, even
though the statements are erroneous and defame one of the parties to the
dispute." 383 U.S., at 60-61. These considerations are equally
applicable under the Executive Order. Section 1 of the Order guarantees
Federal employees these same rights.
Appellees suggest that no "labor dispute" is presented in the facts of
this case. It is true, as Appellees point out, that there was no
dispute between labor and management involved here, and that the union's
organizing efforts were neither during the course of a representation
election campaign, nor directed toward achieving recognition.
[Applicability] obviously cannot depend on some abstract notion of what
constitutes a "labor dispute"; rather, application of "Linn" must turn
on whether the defamatory publication is made in a context where the
policies of the Federal labor laws leading to protection for freedom of
speech are significantly implicated.
As noted, one of the primary reasons for the law's protection of union
speech is to insure that union organizers are free to try peacefully to
persuade other employees to join the union without inhibition or
restraint. Accordingly, we think that any publication made during the
course of union organizing efforts, which is arguably relevant to that
organizational activity, is entitled to the protection of "Linn." We
see no reason to limit the protection of 7, and 1 is much broader.
Indeed, "Linn" itself involved union organizing activity outside the
election campaign context. We similarly reject any distinction between
union organizing efforts leading to recognition and post-recognition
organizing activity. Unions have a legitimate and substantial interest
in continuing organizational efforts after recognition. Whether the
goal is merely to strengthen or preserve the unon's majority, or is to
achieve 100% employee membership - a particularly substantial union
concern where union seciruty agreements are not permitted, as they are
not here, see N. 2, supra - these organizing efforts are equally
entitled to the protection of 7 and 1.
It should be clear that the newsletter's use of the epithet "scab" was
protected under Federal law and cannot be the basis of a State libel
judgement. Rather than bring a reckless or knowing falsehood, naming
the Appellees as "scabs" was literally and factually true. One of the
generally acctepted definitions of "scab" is "one who refuses to join a
union" - Webster's Third New International Dictionary (unabridged Ed.
1961), and it is undisputed that the Appellees had in fact refused to
join the union. To be sure, the word is most often used as an insult or
epithet. But "Linn" recognized that Federal law gives the union license
to use intemperate, abusive, or insulting language without fear of
restraint or penalty if it believes such rhetoric to be an effective
means to make its point. Indeed, the court observed that use of this
particular epithet is common parlance in labor disputes and has
specifically been held to be entitled to the protection of 7 of the
NLRA. 383 U.S., at 60-61
Part 2 - Next post.
Regards.......... mizz
miz...@webtv.net
Appellant: union Appellee: Austin +
Continuation of the opinion of the court delivered by Mr. Justice
Marshall:
Appellees argue that the publication here may be actionable under State
law, basing their claim on the newsletter's publication of Jack London's
"Definition of a Scab." Appellees contend that this can be read to
charge them with having "rotten principles," with lacking "character,"
and with being "traitors." The Supreme Court of Virginia upheld the
damage awards here on the basis of these charges. 213 VA., at 384, 192
S.E. 2D, at 742.
We cannot agree. We believe that publication of Jack London's rhetoric
is equally entitled to the protection of the Federal labor laws. The
sine qua non [the essential qualification or requirement] of recovery
for defamation in a labor dispute under "Linn" is the existence of
falsehood. Mr. Justice Clark put it quite bluntly:
"The most repulsive speech enjoys immunity provided it falls short of a
deliberate or reckless untruth." 383 U.S., at 63.
Before the test of "reckless or knowing falsity" can be met, there must
be a false statement of fact. Gertz v. Robert Welch, Inc., Post, at 339
- 340.
But, in our view, the only factual statement in the disputed publication
is the claim that Appellees were "scabs," that is, that they had refused
to join the union.
The definition's use of words like "traitor" cannot be construed as
representations of fact. As the court said long before "Linn," in
reversing a State Court injunction of union picketing, "to use loose
language or undefined slogans that are part of the conventional
give-and-take in our economic and political controversies - like
"unfair" or "fascist" - is not to falsify facts." Cafeteria Employees
Local 302 v. Angelos, 320 U.S. 293, 295 (1943).
Such words were obviously used here in a loose, figurative sense to
demonstrate the unions' strong disagreement with the views of those
workers who oppose unionization. Expression of such an opinion, even in
the most pejorative terms, is protected under Federal labor law. Here,
too, "There is no such thing as a false idea. However pernicious an
opinion may seem, we depend for its correction not on the conscience of
Judges and Juries, but on the competition of other ideas. Gertz v.
Robert Welch, Inc., Post, at 339 - 340.
Appellees' claim is similar to that rejected by the court recently in
Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6 (1970).
There, petitioners had characterized the position of the respondent, a
public figure, in certain negotiations as "blackmail," and he had
recovered damages for libel on the theory that petitioners knew that he
had committed no such criminal offense. The Court reversed, holding
that this use of the word "blackmail" could not be the basis as a libel
judgement under the New York Times standard.
Mr. Justice Stewart, writing for the court, reasoned:
"It is simply impossible to believe that a reader who reached the word
"blackmail" in either article would not have understood exactly what was
meant: it was Bresler's public and wholly legal negotiating proposals
that were being criticized.
No reader could have thought that either the speakers at the meeting or
the newspaper articles reporting their words were charging Bresler with
the commission of a criminal offense.
On the contrary, even the most careless reader must have perceived that
the word was no more than rhetorical hyperbole, a vigorous epithet used
by those who considered Bresler's negotiating position extremely
unreasonable." 398 U.S., at 14.
It is similarly impossible to believe that any reader of The Carrier's
Corner would have understood the newsletter to be charging the Appellees
with committing the criminal offense of "treason." As in "Bresler,"
Jack London's "Definition of a Scab" is merely rhetorical hyperbole, a
lusty and imaginative expression of the contempt felt by union members
towards those who refuse to join. The court in "Linn" recognized that
such exaggerated rhetoric was commonplace in labor disputes and
protected by Federal law. Indeed, we note that the NLRB has held that
the use of this very "Definition of a Scab" is permissible under Federal
law. Cambria Clay Products Co., 106 NLRB 267, 273 (1953), enforced in
pertinent part, 215 F. 2D 48 (CA6 1954).
It has become a familiar piece of trade union literature; according to
undisputed testimony in this case, it has been published countless times
in union publications over the last 30 years or more. Permitting State
libel judgements based on publication of this piece of literature would
be plainly inconsistent with the union's justifiable reliance on the
protection of Federal law.
This is not to say that there might not be situations where the use of
this writing or other similar rhetoric in a labor dispute could be
actionable, particularly if some of its words were taken out of context
and used in such a way as to convey a false representation of fact.
See Greenbelt Cooperative Publishing Assn. v. Bresler, supra, at 13.
But, in the context of this case, no such factual representation can
reasonably be inferred, and the publication is protected under the
Federal labor laws.
Accordingly, the judgements appealed must be reversed.
34 Fed. Reg. 17605 (1969), 3 CFR 861 (1966 - 1970 Compilation), as
amended, 3 CFR 2254 (1974).
The Executive order was promulgated on October 29, 1969, and became
effective on January 1, 1970. It remains in effect with respect to most
employees in the Executive Branch today.
Postal employees, however, are no longer covered by the Executive Order.
The Postal Reorganization Act of 1970, 84 Stat. 719, converted the
cabinet-level Post Office Department into the United States Postal
Service, an "independent establishment of the Executive Branch," 39
U.S.C. 201. As part of this reorganization, labor-management relations
in the postal service were largely placed under the regulations of the
NLRA and the NLRB, effective July 1, 1971. See 39 U.S.C. 1201 - 1209.
While the union apparently remains the exclusive bargaining
representative for Letter Carriers in Richmond under the Postal
Reorganization Act, this case arose during the brief period when the
Executive Order was controlling.
Section 12(c) of the Executive Order provides that:
"Nothing in the agreement (between an agency and a labor organization)
shall require an employee to become or to remain a member of a labor
organization, or to pay money to the organization......." the Postal
Reorganization Act continues this prohibition of union security
agreements, 39 U.S.C. 1209(c).
The NLRA, of course, permits certain union security agreements, 8(a)(3),
61 Stat. 140, 29 U.S.C. 158(a)(3), EXCEPT insofar as they may violate
State law [rtw states], 14(b), 29 U.S.C. 164(b). See Retail Clerks
Local 1625 v. Schermerhorn, 375 U.S. 96 (1963).
These actions are actually based on Virginia's "insulting words"
Statute, VA. Code Ann. 8 - 630 (1957), which provides:
"All words which from their usual construction and common acceptation
are construed as insults and tend to violence and breach of the peace
shall be actionable."
However, the Virginia courts have held that "an action for insulting
words under Code, 8-630 is treated precisely as an action for slander or
libel, for words actionable per se" with one exception not relevant
here. Carwile v. Richmond Newspapers, Inc., 196 VA. 1, 6, 82 S.E. 2D
588, 591 (1954). See opinion below in 213 VA. 377, 381, 192 S.E. 2D
737, 740 (1972).
[/5/ omitted for brevity.]
Part 3. Next Post.
Regards....... mizz
miz...@webtv.net
Appellant: union Appellees: Austin +
Continuations of the court's opinion as deliverd by Mr. Justice
Marshall:
Section 1 of the Order grants Federal employees "the right, freely and
without fear of penalty or reprisal, to form, join, and assist a labor
organization," as well as "to refrain from any such activity," and
provides that "each employee shall be protected in the exercise of this
right," much as employees in the private sector are protected by 7 of
the NLRA.
Sections 19(a) and 19(b) of the Order define Unfair Labor Practices of
agency management and unions, respectively, which are largely taken from
the prohibitions of 8(a) and 8(b) of the NLRA. And 10 of the Executive
Order establishes a system of exclusive recognition of labor
organizations chosen by a majority of the employees in an appropriate
unit through representation elections by secret ballot, as under 9(c)(1)
of the NLRA.
[second paragraph regarding responsibilities of the secretary of labor
omitted for brevity]
Most notable among the departures from the NLRA are the prohibition of
strikes and picketing or picketing against their employers in 19(b)(4)
of the Executive Order and the limitation of subjects bargaining in
11(b). See generally Hampton Federal Labor-Management: A Program in
Evolution, 21 Cath.U.L.Rev. 493 (1972).
See Naumoff, Ground Rules for Recognition Under Executive Order 11491,
22 Lab.L.J. 100 (1970); CF. Hart, Government Labor's New Frontiers
Through Presidential Directive, 48 VA.L.Rev. 898, 904 - 905 (1962)
(Discussing Exec. Order 10988, predecessor of the present Order).
Naumoff, supra, N. 8, at 103. Compare the similar language of the Board
in Stewart-Warner Corp., 102 NLRB 1153, 1158 (1953), quoted in Linn v.
Plant Guard Workers, 383 U.S. 53, 60 (1966).
Section 8(c) provides: "The expressing of any views, argument, or
opinion, or the dissemination thereof......... shall not constitute or
be evidence of an Unfair Labor Practice..... if such expression contains
no "threat of reprisal" or "force" or "promise of benefit."
This policy of agency neutrality is derived from two parts of the
Executive Order.
The preamble of the Order recites that "the WELL-BEING of EMPLOYEES and
efficient administration of the government are BENEFITED by providing
EMPLOYEES an opportunity TO PARTICIPATE in the FORMULATION and
IMPLEMENTATION of PERSONNEL POLICIES and PRACTICES affecting the
CONDITIONS OF THEIR EMPLOYMENT."
and,
1(a) directs the HEAD of each agency to "take the action required to
ASSURE EMPLOYEES in the agency are APPRISED OF THEIR RIGHTS UNDER THIS
SECTION and that NO INTERFERENCE, RESTRAINT, COERCION, or DISCRIMINATION
is practiced within his agency to ENCOURAGE OR DISCOURAGE membership in
a labor organization.
See Hampton, supra, N. 7, at 501 - 502.
In other contexts, other provisions of the NLRA may be sources of
protection for UNION FREEDOM OF SPEECH. For example, one such source
would be the system of representation elections by secret ballot
established by 9(c)(1) of the Act. Wide latitude for what is written
and said in election campaigns is NECESSARY to insure the free exchange
of information and opinions, and thus to promote the informed choice by
the employees needed to make the system work fairly and effectively.
The same policy is applicable under the Executive Order, which
establishes in 10 a similar system of representation elections for pubic
employees.
Section 1 of the Executive Order does not grant Federal employees the
right, guaranteed by 7 of the NLRA for employees in the private sector,
"to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection."
The right to attempt to persuade others to join the union, however, is
derived from the rights to form, join, and assist a union, as well as
from the right to engage in concerted activities. The absence of
mention of a right to engage in concerted activities is obviously no
more than a reflection of the fact that the Order does not permit
Federal employee unions to engage in strikes or picketing. The
prohibition of picketing and the lack of protection for concerted
activities might be thought to indicate an intention in the Executive
Order to regulate the location or form of employee speech to a somewhat
greater extent than under the NLRA, but we do not perceive any intention
to curtail in any way the CONTENT OF UNION SPEECH.
Appellees argue that, rather than being entitled to the protection of
"Linn," the union's organizing efforts here were unlawful attempts to
"coerce" them into joining the union in violation of 19(b)(1) of the
Order.
But we would expect 19(b)(1) to be interpreted in light of the
construction the court has given the parallel provisions of the NLRA,
8(b)(1)(a).
In NLRB v. Drivers Local 639, 362 U.S. 274 (1960), the court held that
8(b)(1)(a) was "a grant of power to the Board limited to authority to
proceed against union tactics involving violence, intimidation, and
reprisal or threats thereof." Id. at 290.
Mr. Justice Brennan emphasized that there was no intention to restrict
the use by unions of methods of peaceful persuasion, quoting Senator
Taft's remarks during the debate of the Taft-Hartley Act:
"It seems to me very clear that so long as a union-organizing drive is
conducted by persuasion, by propaganda, so long as it has every
legitimate pupose, the Board cannot in anyway interfere with it......."
The Board may say, "You can persuade them; you can put up signs; you
can conduct any form of propaganda you want to in order to persuade
them, but you cannot, by "threat of force" or "threat of economic
reprisal," prevent them from exercising their right to work." Id., at
287 - 288.
It is true that the Executive Order provides that a union may not
"interfere with" an employee in the exercise of his right to refrain
from joining the union, as well as incorporating the wording of the NLRA
making it unlawful to "restrain" or "coerce" an employee.
The court in Drivers Local 639 pointed out, however, that even the words
"interfere with," which originally appeared in a draft of the
Taft-Hartley Act, were intended to have a "LIMITED APPLICATION" and to
reach "REPREHENSIBLE PRACTICES" like violence and threats of loss of
employment, but NOT methods of peaceful persuaion. Idl, at 286.
It seems likely that the Executive Order was similarly NOT intended to
limit union propaganda or prohibit any other method of peaceful
persuasion.
In any event, Appellee's contention is properly addressed to the
assistant secretary in the first instance, through an Unfair Labor
Practice complaint, and not to this court. Even if Appellees should
ultimately prove to be correct, "Linn" is still applicable here, and
State libel rememdies are pre-empted unless Appellees can show that the
publicationi was knowingly false or made with reckless disregard for the
truth.
In view of our conclusion that the publication here was protected under
the Federal labor laws, we have no occasion to consider the First
Amendment arguments advanced by the Appellants.
On the contrary, it is apparent from the record that the basis for the
libel action in this case was the use of the epithet "scab" rather than
the claimed charge of treason. It was the publication of the "List of
Scabs" which disturbed the Appellees, and which moved Appellee Austin to
complain prior to the June publication at issue and to threaten to sue
if he was called a "scab" again.
Moreover, it appears that the only asserted damage to Appellees followed
from the publication of the fact that they were "scabs."
Appellees testified only that their coworkers and others became hostile
to them, referring to them as the "scabs" the union was talking about,
and that this made them tense and nervous and caused headaches.
There is no evidence that anyone took literally the use of the word
"traitor" or that Appellees were in any way concerned about or affected
by this charge. Nor can it be claimed that the jury's verdict is itself
some indication that the charge of "traitor" was construed as a
defamatory representation of fact.
There is certainly nothing in the trial court's instructions which would
suggest that the newsletter's use of "scab" was not the basis for the
jury's verdict. The court did not instruct the jury that the use of
"scab" could not be the basis for imposing liability. The court did not
even instruct the jury that a true statement of fact could not be the
foundation for liability. Indeed, the trial court's instruction that
"insults" made with "ill will" were sufficient to impose liability
fairly invited the jury to base its verdict on the newsletter's use of
"scab."
Since we find that any libel award on the basis of this publication
would be inconsistent with the protection of Federal law, we need not
rule on Appellants' alternative argument that the damages awarded here
were excessive.
We think it important again to point out, however, that "in view of the
propensity of juries to award excessive damages for defamation, the
availability of libel actions may pose a threat to the stability of
labor unions and smaller employers." Linn, 383 U.S., at 64. It is for
this reason that the court in "Linn" held that "if the amount of damages
awarded is excessive, it is the duty of the trial judge to require a
remittitur or a new trial." Id., at 65 - 66 (emphasis added).
Mr. Justice Douglas, concurring in the result;
As the court states, this case calls upon us to determine the extent to
which State libel laws may be used to penalize statements expressed in
the course of a labor dispute. In this instance, Virginia's libel laws
were used to impose massive damages upon a labor union for publicly
expressing, during the heat of an organizational drive, its highly
pejorative but not too surprising opinion of "scabs."
I agree that this expression is protected and that the judgements below
cannot stand. Unlike the court, however, I do not view the task of
reconciling the competing State and Federal interests in this area as a
difficult one, nor do I view the Federal interest as merely a matter of
Federal labor policy. I think that such expression is Constitutionally
protected and I cannot agree that there might be situations "where the
use of this writing or other similar rhetoric in a labor dispute could
be actionable."
I agree with the court that Federal labor policy, as manifested both in
the NLRA and in Executive Order 11491, favors uninhibited, robust and
wide open debate in labor disputes. I disagree with the court, however,
on the reach of that policy. I think that the pre-emptive effect of
Federal labor regualtion is such that States are prohibited from
interfering with those with an arsenal of defamation laws. See Linn v.
Plant Guard Workers, 383 U.S. 53, 69 ......... . Though referring to
this State of affairs as Federal labor policy, I expressly reject any
implication that the policy could be otherwise were Congress or the
Executive to reassess the underlying considerations and attempt to
reformulate the policy.
We said in Thornhill v. Alabama, 310 U.S. 88, 102, that "in the
circumstances of our times, the dissemination of information concerning
the facts of a labor dispute must be regarded as within that area of
free discussion that is guaranteed by the Constitution."
Since I do not think that discussion is free in the Constitutional sense
when it subjects the speaker to the penalty of libel judgements, in my
view, the ability of Congress or the Executive to formulate any labor
policy penalizing those who might say "naughty things during labor
disputes" is precisely nil.
I believe the Framers did all the policymaking necessary in this area
when they devised the Constitutional framework which binds us all.
As I stated in Gertz v. Robert Welch, Inc., post, at 356 - 357, the
First Amendment would prohibit Congress from passing any libel law and
the limitation on labor policy formulation is but an example of the
general restriction.
Part 4. Next post.
Regards....... mizz