This case involves three state libel judgments imposing liability of $165,000 on 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 judgments can be squared with the freedom of speech in labor disputes guaranteed under federal law.
Appellant Old Dominion Branch No. 496 is a local union affiliated with the appellant National Association of Letter Carriers, AFL-CIO. At all times relevant to this case, the Branch was recognized by postal authorities as the exclusive local collective-bargaining representative of letter carriers in the Richmond, Virginia, area in accordance with § 10 of Executive Order No. 11491,
Although it had already been selected as bargaining representative by a majority of the postal workers in the unit, the Branch in the spring of 1970 was engaged in an ongoing effort to organize the remainder of the letter carriers. As part of this campaign, the Branch periodically published in its monthly newsletter, the Carrier's Corner, a list of those who had not yet joined the Union, under the heading "List of Scabs." After his name twice appeared in the "List of Scabs," appellee Austin complained to the Richmond Postmaster and the President of the Branch 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 Branch members. Once again the newsletter contained a "List of Scabs," including the names of the three appellees, as well as 12 others. Just above the list of names, the newsletter noted that "[s]ome co-workers are in a quandary as to what a scab is" and said "we submit the following." There followed
Appellees filed these defamation actions against the Branch and the National Association shortly after the
The jury returned a verdict awarding each of the appellees $10,000 in compensatory damages and $45,000 in punitive damages.
As noted, this case calls upon us to determine the extent to which state libel laws may be applied to penalize statements made in the course of labor disputes without undermining the freedom of speech which has long been a basic tenet of federal labor policy. We do not approach this problem, however, with a clean slate. The Court has already performed the difficult task of reconciling the competing state and federal interests involved in this area, and established the framework for our analysis here, in Linn v. Plant Guard Workers, supra.
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 National Labor Relations Board had exclusive jurisdiction over the subject
A bare majority of this Court disagreed, however, and held that the NLRA did not completely pre-empt the application of state laws to libels published during labor disputes. The Court found that the exercise of state jurisdiction over such defamation actions would be a "merely peripheral concern" of the federal labor laws, within the meaning of Garmon, as long as appropriate substantive limitations were imposed to insure that the freedom of speech guaranteed by federal law was protected. Further, the Court recognized an " `overriding state interest' in protecting [state] residents from malicious libels." 383 U. S., at 61. Mr. Justice Clark, writing the opinion for the Court, also pointed out that application of state law to libels occurring during labor disputes would not significantly interfere with the NLRB's role in considering arguable contemporaneous violations of the Act. As he observed, the Board has different substantive interests from state libel law, being concerned with the coercive or misleading nature of the statements, rather than their defamatory quality. And the NLRA and state laws provide quite different remedies: only state law can provide damages to compensate the libel victim; only the NLRB can order a new representation election if the libel is found to have substantially affected the outcome of an election.
On the other hand, the Court recognized the danger that unrestricted libel actions under state law could
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 latitude to the competing 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 decisions, 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 Times Co. v. Sullivan, 376 U.S. 254 (1964). Accordingly,
In this case, of course, the relevant federal law is Executive Order No. 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
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 characterized our labor relations in the private sector has been carried over under the Executive Order. For example, one of the Regional Administrators under the Executive Order program has stated, in the context of union organizing campaigns:
We recognize that the Executive Order does not contain any provision corresponding to § 8 (c) of the NLRA,
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 employees' rights "to form, join, or assist labor organizations."
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 organizing campaign are
These considerations are equally applicable under the Executive Order. Section 1 of the Order guarantees federal employees these same rights.
Section 7 of the NLRA and § 1 of the Executive Order also dispose of appellees' suggestion that no "labor dispute" within the meaning of Linn is presented on the facts of this case. It is true, as appellees point out, that there was no dispute between labor and management
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 this protection to statements made during representation election campaigns. 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 union's majority, or is to achieve 100% employee membership—a particularly substantial union concern where union security 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.
The courts below did not question the applicability of Linn to this case. Instead, both courts believed that Linn required only that the jury be instructed that it
This reflects a fundamental misunderstanding of the Court's holding in Linn. The Linn Court explicitly adopted the standards of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and the heart of the New York Times test is the requirement that recovery can be permitted only if the defamatory publication was made "with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at 280. The adoption in Linn of the reckless-or-knowing falsehood test was reiterated time and again in the Court's opinion. See 383 U. S., at 61, 63, 65.
Of course, the Court also said that recovery would be permitted if the defamatory statements were shown to have been made with malice. But the Court was obviously using "malice" in the special sense it was used in New York Times—as a shorthand expression of the "knowledge of falsity or reckless disregard of the truth" standard. See New York Times Co. v. Sullivan, supra, at 279-280. Instructions which permit a jury to impose liability on the basis of the defendant's hatred, spite, ill will, or desire to injure are "clearly impermissible." Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82 (1967). "[I]ll will toward the plaintiff, or bad motives, are not elements of the New York Times standard." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52 n. 18 (1971) (opinion of BRENNAN, J.). Accord, Garrison
This, however, cannot be the end of our inquiry. The Court has often recognized that in cases involving free expression we have the obligation, not only to formulate principles capable of general application, but also to review the facts to insure that the speech involved is not protected under federal law. New York Times Co. v. Sullivan, supra, at 284-285; Pickering v. Board of Education, 391 U.S. 563, 574-575 (1968); Greenbelt Cooperative Publishing Assn. v. Bresler, supra, at 11. "We must `make an independent examination of the whole record,' Edwards v. South Carolina, 372 U.S. 229, 235, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, supra, at 285.
While this duty has been most often recognized in the context of claims that the expression involved was entitled to First Amendment protection, the same obligation exists in cases involving speech claimed to be protected under the federal labor laws. This obligation, derived from the supremacy of federal labor law over inconsistent state regulation, Hill v. Florida ex rel. Watson, 325 U.S. 538 (1945); Teamsters Local 24 v. Oliver, 358 U.S. 283, 295-296 (1959), requires us to determine whether any state libel award arising out of the publication of the union newsletter involved here would be inconsistent with the protection for freedom of speech in labor disputes recognized in Linn.
It should be clear that the newsletter's use of the epithet "scab" was protected under federal law and cannot
Appellees nonetheless 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 "traitor[s]"; that these charges are untrue; and that appellants knew they were untrue. The Supreme Court of Virginia upheld the damages 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 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 union's 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 of a libel judgment
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.
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
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
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 regulation is such that States are prohibited from interfering with those federally regulated relations by arming disputants in labor controversies with an arsenal of defamation laws. See Linn v. Plant Guard Workers, 383 U.S. 53, 69 (Fortas, J., dissenting). 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, "[i]n 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."
If the States were not limited to the same extent as the Federal Government in restraining discussion, the pre-emptive effect of federal labor regulations would be crucial. But I have always thought that the application of the First Amendment to the States through the Fourteenth
Since labor disputes are " `within that area of free discussion that is guaranteed by the Constitution' " and since in my view the States and the Federal Government are equally bound to honor that guarantee, the fate of the libel award in this case is clear. "Discussion is not free . . . within the meaning of our First Amendment, if that discussion may be penalized by judgments for damages in libel actions." Linn v. Plant Guard Workers, 383 U. S., at 68 (Black, J., dissenting). The extensive damages awarded in this case well illustrate that any protection short of a complete bar to suits for defamation will be cold comfort to those who enter the arena of free discussion in labor disputes. The imaginative vituperation which is commonplace in labor strife well exceeds the "normal" levels of hyperbole to which
Since I do not believe that the judgments below are consistent with either federal labor policy or with constitutionally protected free speech, I concur in their reversal.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.
Today the Court extends the rule of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to encompass every defamatory statement made in a context that falls within the majority's expansive construction of the phrase "labor dispute." Because this decision appears to allow both unions and employers to defame individual workers with little or no risk of being held accountable for doing so, I dissent.
Executive Order 11491 establishes for certain federal employees a legal system for labor-management relations essentially similar to that provided employees in the private sector by the National Labor Relations Act. (NLRA). The Court acknowledges that the two schemes are not identical but finds no persuasive reason to differentiate between them for the purpose of determining their pre-emptive impact on state libel law. With this much I agree.
The majority then concludes that the instant case is controlled by Linn v. Plant Guard Workers, 383 U.S. 53 (1966). In Linn the Court construed the NLRA to bar state libel judgments for defamatory statements made
Linn involved a classic confrontation between union and management locked in combat during an organizational campaign. Linn was assistant general manager of Pinkerton's National Detective Agency, Inc. Pinkerton's employees were then the subject of an organizational campaign by the United Plant Guard Workers. In the course of that effort the union published a leaflet urging Pinkerton's employees to join the union and allegedly accusing Linn of "lying" to the employees and "robbing" them of pay increases. Linn sued the union for libel, but the trial court held that the National Labor Relations Board had exclusive jurisdiction over the subject matter of the dispute. It found that Linn's complaint charged the union with conduct arguably constituting an unfair labor practice under the NLRA and that
This Court disagreed with that reasoning. It recognized an " `overriding state interest' in protecting [state] residents from malicious libels . . . ," 383 U. S., at 61, and noted that federal labor law does not protect individuals against injury to reputation. Even where statements actionable as libel under state law would also constitute an unfair labor practice, the Board's interest would be limited to their coercive or misleading character, and the Board would be powerless to award damages or take any other step to redress the injury to the reputation of a defamed individual. The Court therefore held that the NLRA does not wholly pre-empt state libel law, even where the subject matter of the libel action might also constitute an unfair labor practice under the Act. Even in that circumstance, the States remain free to award damages for defamatory falsehoods published with knowledge of their falsity or in reckless disregard of the truth.
The result of Linn is a rule of partial pre-emption. The States may award libel judgments on the basis of the knowing-or-reckless-falsity formulation but are pre-empted from allowing defamation plaintiffs to recover under any less demanding standard of liability. The level of pre-emption is defined by New York Times Co. v. Sullivan. But the Linn rule of partial pre-emption has another dimension, one that distinguishes the case at hand. That is the scope of the rule—in other words, the range of circumstances in which state libel law is partially displaced by federal labor law. This is determined by the phrase "labor dispute."
In Linn the Court relied on the presence of a "labor dispute" to justify partial pre-emption of state libel law, but it did not delineate the boundaries of that concept. Indeed, the Court had no occasion to do so, for, as we have seen, Linn involved a prototypical organizational
Appellant union had long been recognized by the postal authorities as the exclusive collective-bargaining representative for the letter carriers in the Richmond area. Of a maximum of 435 letter carriers in the unit, all save 15 were active union members. Thus the union was solidly entrenched, with approximately 96% of the letter carriers signed up. The three appellees were among those 15 employees who elected not to join the union. There is no evidence of concerted action by these 15 letter carriers; they were acting individually, motivated by principle or personal conviction or perhaps, as appellant union alleges, by a desire not to pay dues. In any event, the three appellees had worked as letter carriers for 14, 13, and 12 years, respectively, without any sort of trouble either with the postal authorities or with their fellow employees. In fact, there is no evidence that the appellees were involved in a dispute with anyone until the union officials became displeased with appellees' exercise of their admitted right not to join the union and began to subject them to public ridicule and vilification.
The majority characterizes the union's actions as part of an ongoing organization campaign, ante, at 267, and treats this situation as a "labor dispute" within the intendment of the Linn rule of partial pre-emption. But
In my view this is an unnecessary and unwise extension of Linn. Here there was no confrontation between powerful forces of labor and management, no clash of opposing economic interests that might warrant the attention of federal regulatory authorities, and hence no prospect whatever that reliance on state libel law might subvert the federal scheme for the fair and peaceful resolution of labor disputes. Yet the majority nevertheless holds that the state libel judgments entered below are pre-empted by federal labor law. This conclusion seems to me a needless denigration of the "overriding state interest" in compensating individuals for injury to reputation. Moreover, it leaves these appellees without effective remedy for the wrong done them. Far from representing a powerful economic interest that could fight for itself within the federally created system of individual self-government, these appellees were defenseless individuals.
As an alternative basis for its decision, the Court concludes that appellees are prohibited from recovering because there was no libel, indeed no falsehood of any kind, in the union's publication. According to the majority, the only factual allegation contained in the article was that appellees were "scabs," as that term is used in the labor movement, and that "naming the appellees as scabs was literally and factually true." Ante, at 283. It is true, of course, that appellees were identified by name as "scabs" in the union newsletter, but it is also true that the use of the word "scab" was explicated by a long and vituperative article appearing immediately above appellees' names. The only fair way to read this article is to substitute each appellee's name for the word "scab" whenever it appears. So construed, the plain meaning and import of this publication was that appellees lacked character, that they had "rotten principles," and that they were traitors to their God, their country, their families, and their friends. Appellants make no attempt to prove the truth of these accusations, contending instead that they were mere hyperbole involving no statement of fact. The majority accepts this argument, in my view erroneously.
I would hold that federal law does not prohibit appellees from recovering from appellant union for injury to reputation. I would reverse and remand for a new trial in accord with our decision in Gertz v. Robert Welch, Inc., post, p. 323.
James Newton Wilhoit III, Rex H. Reed, and John L. Kilcullen filed a brief for the National Right to Work Legal Defense Foundation as amicus curiae urging affirmance.
"[N]othing 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, § 14 (b), 29 U. S. C. § 164 (b). See Retail Clerks v. Schermerhorn, 375 U.S. 96 (1963).
"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 "[a]n 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).
Primary responsibility for administration of this system is given to the Assistant Secretary of Labor for Labor-Management Relations, who largely performs the role of the NLRB in the private sector. Under § 6 (a) of the Order, he is empowered to make determinations of appropriate collective-bargaining units, to supervise the conduct of representation elections, and to decide complaints alleging unfair labor practices. Upon a finding of a violation of the Order, § 6 (b) empowers the Assistant Secretary to order Government agencies or unions to cease and desist from violations of the Order, and to take appropriate affirmative action. Appeals from decisions of the Assistant Secretary are heard by the Federal Labor Relations Council, established under § 4 of the Order, which is also given a significant policymaking function.
"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."
And § 1 (a) directs the head of each agency to
"take the action required to assure that 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.
"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 purpose, the Board cannot in any way 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 persuasion. Id., 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, appellees' 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 remedies are pre-empted unless appellees can show that the publication was knowingly false or made with reckless disregard for the truth.
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."