Letter Carriers v. Austin
418 U.S. 264 (1974)

Annotate this Case

U.S. Supreme Court

Letter Carriers v. Austin, 418 U.S. 264 (1974)

Old Dominion Branch No. 496, National Association

of Letter Carriers, AFL-CIO v. Austin

No. 72-1180

Argued November 14, 1973

Decided June 25, 1974

418 U.S. 264



As part of its ongoing efforts to organize the remainder of letter carriers, appellant union, the carriers' collective bargaining representative in Richmond, Virginia, published a "List of Scabs" in its newsletter, including the names of appellees, together with a pejorative definition of "scab" using words like "traitor." Appellees brought libel actions. Though recognizing that the case involved the publications of a labor union that were relevant to the union's organizational campaign, the trial court overruled appellants' motions to dismiss based on the ground that the publication had First Amendment and federal labor law protection. The court interpreted Linn v. Plant Guard Workers,383 U. S. 53, to permit application of state libel laws as long as the challenged statements were made with "actual malice," defined as being

"actuated by some sinister or corrupt motive such as hatred, personal spite, ill will, or desire to injure the plaintiff . . . or . . . with such gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff."

The jury awarded appellees damages, and the State Supreme Court affirmed.


1. Although Linn v. Plant Guard Workers, supra, held that federal labor law does not completely preempt the application of state laws to libels published during labor disputes, that decision recognized that federal law does preempt state law to the extent that the State seeks to make actionable defamatory statements in labor disputes published without knowledge of their falsity or reckless disregard of the truth. Pp. 418 U. S. 270-273.

2. Federal labor laws favor uninhibited, robust, and wide-open debate in labor disputes. Pp. 418 U. S. 273-279.

(a) The relevant law here is Executive Order No. 11491, governing labor relations in federal employment. The basic provisions of the Executive Order are like those of the National Labor Relations Act, and similarly afford wide latitude for union freedom

Page 418 U. S. 265

of speech. The partial preemption of Linn is thus equally applicable here. Pp. 418 U. S. 273-279.

(b) The free speech protections afforded union organizing efforts extend to post-recognition organizing activity to the same degree as to pre-recognition activity. P. 418 U. S. 279.

3. The trial 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. 418 U. S. 280-282.

4. 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 pejorative definition was likewise not actionable, since the use of words like "traitor" cannot be construed as representations of fact and their use in a figurative sense to manifest 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. 418 U. S. 282-287.

213 Va. 377, 192 S.E.2d 737, reversed.

MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, and BLACKMUN, JJ., joined. DOUGLAS, J., filed an opinion concurring in the result, post, p. 418 U. S. 287. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 418 U. S. 291.

Page 418 U. S. 266

MR. JUSTICE MARSHALL delivered the opinion of the Court.

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, [Footnote 1] governing labor-management relations in the Executive Branch of the Federal Government. Appellees, Henry M.

Page 418 U. S. 267

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. [Footnote 2]

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 coworkers are in a quandary as to what a scab is," and said "we submit the following." There followed

Page 418 U. S. 268

a well known piece of trade union literature, generally attributed to author Jack London, which purported to supply a definition:

The Scab

"After God had finished the rattlesnake, the toad, and the vampire, He had some awful substance left with which He made a scab."

"A scab is a two-legged animal with a corkscrew soul, a water brain, a combination backbone of jelly and glue. Where others have hearts, he carries a tumor of rotten principles."

"When a scab comes down the street, men turn their backs and Angels weep in Heaven, and the Devil shuts the gates of hell to keep him out."

"No man (or woman) has a right to scab so long as there is a pool of water to drown his carcass in, or a rope long enough to hang his body with. Judas was a gentleman compared with a scab. For betraying his Master, he had character enough to hang himself. A scab has not."

"Esau sold his birthright for a mess of pottage. Judas sold his Savior for thirty pieces of silver. Benedict Arnold sold his country for a promise of a commission in the British Army. The scab sells his birthright, country, his wife, his children and his fellowmen for an unfulfilled promise from his employer."

"Esau was a traitor to himself; Judas was a traitor to his God; Benedict Arnold was a traitor to his country; a SCAB is a traitor to his God, his country, his family and his class."

App. 9. (Emphasis supplied.)

Appellees filed these defamation actions against the Branch and the National Association shortly after the

Page 418 U. S. 269

June newsletter was published. [Footnote 3] Appellants sought dismissal of the actions on the ground that the publication was protected speech under the First Amendment and under federal labor law. The trial judge recognized that this case involved the "publications of a labor union which [were] relevant to and in the course of a campaign to organize federal employees." App. 20. Nevertheless, he overruled the demurrers, interpreting this Court's decision in Linn v. Plant Guard Workers,383 U. S. 53 (1966), to permit application of state libel laws in such circumstances as long as the statements were made with "actual malice." The judge defined "actual malice" in his instructions to the jury as follows:

"The term 'actual malice' is that conduct which shows, in fact, that, at the time the words were printed, they were actuated by some sinister or corrupt motive such as hatred, personal spite, ill will, or desire to injure the plaintiff; or that the communication was made with such gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff."

App. 93. The jury returned a verdict awarding each of the appellees $10,000 in compensatory damages and $45,000 in punitive damages. [Footnote 4]

Page 418 U. S. 270

The Supreme Court of Virginia affirmed. 213 Va. 377, 192 S.E.2d 737 (1972). In view of appellants' substantial claims that their statements in the newsletter were protected expression under the First Amendment and federal labor law, and that the state courts had erred in interpreting the preemptive effect of Linn, we noted probable jurisdiction and set this case for oral argument with No. 72-617, Gertz v. Robert Welch, Inc., post, p. 323. 412 U.S. 917 (1973). We reverse.


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

Page 418 U. S. 271

matter of the complaint, finding that the union's conduct would arguably be an unfair labor practice under § 8(b) of the National Labor Relations Act, 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 preemption grounds. The Court of Appeals affirmed.

A bare majority of this Court disagreed, however, and held that the NLRA did not completely preempt 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 383 U. S. 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

Page 418 U. S. 272

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 383 U. S. 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 383 U. S. 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 383 U. S. 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 383 U. S. 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 383 U. S. 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,

Page 418 U. S. 273

we held that libel actions under state law were preempted 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 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. [Footnote 5]

The basic provisions of the Executive Order establish a labor-management relations system for federal employment

Page 418 U. S. 274

which is remarkably similar to the scheme of the National Labor Relations Act. [Footnote 6] Although several significant adjustments have been made to reflect the different structure and responsibilities of the governmental employer, [Footnote 7] it is apparent that the Order adopted in large part the provisions and policies of the NLRA as its model. [Footnote 8] Indeed, one of the primary purposes of the

Page 418 U. S. 275

Executive Order was to "substantially strengthen the Federal labor relations system by bringing it more into line with practices in the private sector of the economy." 5 Presidential Documents 1508 (Oct. 29, 1969) (announcement of the signing of Exec.Order No. 11491). Accordingly, while decisions under the NLRA may not be binding precedent under the Executive Order, the Assistant Secretary of Labor charged with administration of the Order has held that his decisions will "take into account the experience gained in the private sector under the Labor-Management Relations Act." Charleston Naval Shipyard, Case Nos. 41940 (CA), 41950 (CA), A/SLMR No. 1, p. 3 (Nov. 3, 1970).

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:

"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. [Footnote 9] "

Page 418 U. S. 276

And 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. 283, App. 4 (June 30, 1973) (summarized in BNA Govt. Empl.Rel.Rep. No. 514, July 30, 1973, p. A-10).

We recognize that the Executive Order does not contain any provision corresponding to § 8(c) of the NLRA, [Footnote 10] relied on in part by the Court in Linn. But the Court recognized that this section was primarily intended "to prevent the Board from attributing anti-union motive to an employer on the basis of his past statements." 383 U.S. at 383 U. S. 663, n. 5 (emphasis added). A provision corresponding to § 8(c) was apparently thought unnecessary in the Executive Order because it directs the Government, as employer, to adopt a position of neutrality concerning unionization of its employees. [Footnote 11] "Government

Page 418 U. S. 277

officials do not mount vote no' campaigns." Hampton, Federal Labor-Management Relations: A Program in Evolution, 21 Cath.U.L.Rev. 493, 502 (1972).

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." [Footnote 12]

"Basic to the right guaranteed to employees in § 7 to form, join or assist labor organizations, is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection. Indeed, even 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.'"

NLRB v. Drivers Local 9,362 U. S. 274, 362 U. S. 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 organizing campaign are

Page 418 U. S. 278

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 N.L.R.B. 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 383 U. S. 661. These considerations are equally applicable under the Executive Order. Section 1 of the Order guarantees federal employees these same rights. [Footnote 13]

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

Page 418 U. S. 279

involved here, and that the union's organizing efforts were neither during the course of a representation election campaign nor directed toward achieving recognition. But whether Linn's partial preemption of state libel remedies is applicable 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 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, seen 2, supra --these organizing efforts are equally entitled to the protection of § 7 and § 1. [Footnote 14]

Page 418 U. S. 280


The court 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

Page 418 U. S. 281

must find the defamatory statements to have been made with malice before it could impose liability. And both courts thought that instructions which defined malice in the common law sense -- as "hatred, personal spite, ill will, or desire to injure" -- were adequate under Linn.

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 376 U. S. 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 383 U. S. 61, 383 U. S. 63, 383 U. S. 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 376 U. S. 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, 389 U. S. 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, 403 U. S. 52 n. 18 (1971) (opinion of BRENNAN, J.). Accord, 379 U. S. S. 282

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