LETTER CARRIERS v. AUSTIN

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Argument of Mozart G. Ratner

Chief Justice Warren E. Burger: We’ll hear arguments next in Old Dominion Branch of the Letter Carriers against Austin.

Mr. Ratner, you may proceed whenever you’re ready.

Mr. Mozart G. Ratner: Mr. Chief Justice and may it please the Court.

This case is here on appeal from the judgment to the Supreme Court of Virginia, affirming three separate judgments of $55,000 each, a nice figure of $165,000 in all, against the Richmond Branch of the National Association of Letter Carriers and the Parent National Association.

The three plaintiffs, beneficiaries to these judgments, are individual letter carriers who refused deliberately and willfully to join the union.

Because of that refusal, they were identified as scabs in the local Branch’s monthly newsletter to its members and, in one issue, the Branch published pejorative definition of scab, popularly attributed to Jack London followed by a list of scabs which named the non-members, some-15 of them including the three plaintiffs.

At least since 1897, according the Century Dictionary Encyclopedia which is quoted at page 51 of the Appendix, in labor parlance, a scab is workman who is not or refuses to become a member of a labor union.

Chief Justice Warren E. Burger: Was that definition furnished along with the other definition in this publication?

Mr. Mozart G. Ratner: That definition was not printed, but the record is unequivocally clear that all of the plaintiffs and everyone else knew that the reason they were being called scabs was that they had been importuned and pleaded with and begged to join the union and they refused willfully and deliberately to do so.

Justice Mr. Justice Blackman: Mr. Ratner, that’s twice you’ve used the word “willfully.”

Mr. Mozart G. Ratner: Yes, sir.

Justice Mr. Justice Blackman: Normally, this connotes guilt.

Are you using that in that frame of reference?

Mr. Mozart G. Ratner: No, I have no meaning, no implication in that word in that context other than “they were not newly on the job and not had a chance not be approached, had not had the chance to consider the problem.”

They had made a deliberate choice is all I meant to say.

Justice Mr. Justice Blackman: Well, I think that is not the correct use of the word “willfully.”

I just --

Mr. Mozart G. Ratner: I beg your pardon. I will change it.

They had deliberately elected not to joint the.

Justice Lewis F. Powell: Mr. Ratner, I don’t suppose you found in the dictionary any definition of scab and here I quote from page 72, I think, of the Appendix, “as a traitor to his God, his country, his family, and his class.”

Mr. Mozart G. Ratner: Well, I was coming to that.

I mean --

Justice Lewis F. Powell: My questions was, is it in the dictionary?

Mr. Mozart G. Ratner: Well, I don’t suppose that the dictionaries go on and print Jack London’s definition as being part of the commonly accepted definition of a scab.

Jack London was elaborated in literary fashion about what is conception of a scab was.

It’s not a literary dictionary definition of a scab.

It’s an artist’s conception.

The publication itself did not.

In fact, the publication does, Page 52, I believe, of the record or maybe it’s 74.

In any event, immediately after the article itself appeared, at page 77, appears a card from which the editor of the local paper derived the text of the article.

That was published by the Richmond Trades Industry of Council and that, defendant’s Exhibit 5, clearly shows that a scab by Jack London, well-known author of Call of the Wild, Sea Wolf, etcetera.

When, as Your Honors will see, the local Branch in response to a question by plaintiff Austin, saying he didn’t know what a scab was, published the London definition.

It said that “some people seem to be in a quandary as to what a scab is, we offer the following.”

It did not say that it was the only definition.

It did not say it was a dictionary definition.

It said that it was a definition and, a definition it certainly was, consisting of a well-known literary labor classic attributed at least, or if not written, by Jack London.

In any event --

Justice Potter Stewart: The dictionary definition, as I understood it to say, is that a scab is a low or contemptible person, isn't that correct?

Mr. Mozart G. Ratner: Yes, sir.

I do believe that the Century Dictionary Encyclopedia, which I quoted earlier, dated 1897 describes a scab as “an opprobrious term used by the workmen or others who dislike his action.”

Now, I assume that that means that to trade unionists those who refuse to join are low and contemptible people.

The record here reflects that both the President of the local union and the Vice President of the National stated their reasons for believing that so-called free riders who take the advantage of Union Representation without bearing their fair share of the cost or any share of the cost, who are willing to profit from the benefits and the efforts of their fellows to maintain wages and working conditions, who do as one of the plaintiffs here did, Ziegengeist, perform services off the clock on free time, gratis, for his employer are in fact low and contemptible people.

They choose to undermine the conditions for which workers organized and they fought and struggled.

That is their opinion of them, and it is our contention that both the National Relations laws and the First Amendment guarantee their right among themselves to express that opinion for the lawful purpose of exerting social pressure upon the non-members to join.

Now, we think that that proposition is supported by the decisions of this Court.

The questions principally presented are whether, as a matter of federal preemption, a state’s jurisdiction over defamation arising out of labor disputes is limited to knowing or reckless misrepresentation of fact.

Chief Justice Warren E. Burger: Of course those are somewhat temperate definitions that you’re giving.

This publication in effect said, did it not, that these plaintiffs in that case, the respondents here, in effect were gentlemen compared with Judas who betrayed his master by linking these alleged London definition of a scab with these men?

Mr. Mozart G. Ratner: Your Honor, I take it that there is no line that can be drawn constitutionally between the vividness of the hyperbole which can be protected and that which is not.

I do not believe that the constitution or Linn, either one, distinguish the epithets which are particularly remarked in Linn as falling within the common place discussion, and one of the Labor Board cases which specifically says that this London definition itself is protected under Section 7 as falling without the area of protected speech in labor controversies, whereas, this Court said in Linn itself, “we do not judge by the normal standards of Gentleman Linn polite speech.”

In labor controversies, the Court has pointed out that the labor disputes are ordinarily heated affairs.

The language of this common place there might well be deemed actionable per se in some state jurisdictions.

Representation campaigns are frequently characterized by bitter and extreme charges, counter-charges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions.

Both labor and management often speak bluntly and recklessly, embellishing their respective positions within precatory language.

That was worked --

Justice William H. Rehnquist: Mr. Ratner.

Mr. Mozart G. Ratner: Yes, sir?

Justice William H. Rehnquist: As I read Linn, and my reading is kind of reinforced by the quote you just read, it did arise in the context of a representational proceeding, a dispute between management and labor.

Was there such a dispute that this thing arose out of?

Mr. Mozart G. Ratner: This arose out of the efforts of the union to bring into membership the remaining non-members who were employed in the postal career services.

To answer your question shortly and bluntly, there was no legal proceeding pending before the National Labor Relations Board.

Justice William H. Rehnquist: Well, was there any dispute between labor and management?

Mr. Mozart G. Ratner: No, as far as we know.

There was a dispute between the members of the union and the non-members which, in Senn versus Tile Layers Union this Court has held to constitute a labor dispute and which Section 29 of the National Labor Relations Act explicitly defines as a labor dispute, and which Angelos against Cafeteria Workers explicitly holds as labor dispute.

Any effort by a union to induce non-members to join is per se a labor dispute, yes.

Now, in that context, to come back to what --

Justice William J. Brennan: Mr. Ratner, I take it that as far as the use of the word “scab” is concerned, it certainly is a true appellation here, is it not?

Mr. Mozart G. Ratner: Yes, Your Honor, and it’s absolutely true.

Justice William J. Brennan: In any definition of the term, and it’s your position, is it, that the rest of the material in this publication has just rhetorical hyperboles?

Mr. Mozart G. Ratner: It is precisely that, it is precisely that and we say that it is rhetorical hyperbole not because we say so, but because under the teachings of Greenbelt against Bresler, it must be so-held as a matter of constitutional fact and that the lower Court’s attempt without any rationale whatsoever, the District Court I mean, attempt without rationale whatsoever, to say that Bresler is completely different from this case is simply utterly intemperate.

Chief Justice Warren E. Burger: We’ll resume there after lunch, Mr. Ratner.

Mr. Mozart G. Ratner: Thank you.

[luncheon Recess]

Chief Justice Warren E. Burger: Mr. Mozart, you may resume.

Mr. Mozart G. Ratner: Mr. Chief Justice and may it please the Court.

I should like to refer to two other passages of Linn which have relevance, at least, here.

One is that the Labor Board has concluded that epithets such as “scab,” “unfair,” and “liar” are common place in these struggles.

I might add, as common place as the London definition, and not so indefensible as to remove them from the protection of Section 7, even though the statements are erroneous and defame one of the parties to the dispute, it's on pages 60-61, and I continue having skipped a sentence on page 61 to the following.

In sum, the Board tolerates intemperate, abusive, and inaccurate statements made by the union during attempts to organize employees, which was what this was.

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.

Chief Justice Warren E. Burger: It’s sort of a two-handed statement, isn’t it?

Mr. Mozart G. Ratner: Your Honor, I -- to me, the only hand that counts is the last four words, “known to be false,” versus the common law test, embodies the New York Times test, and lays down the boundary of State Court jurisdiction.

In order for a statement to be known to be false it must be factual, because if it is not factual, as Judge Marriage said in speaking for the Fifth Circuit in Curtis Publishing Co. against Birdsong which we cite in our brief, then it simply is not subject to the litmus paper test of truth or false until you talk, and if it’s not subject to the litmus paper test truth or false, then it can’t come within the scope of State Court jurisdiction under Linn.

Chief Justice Warren E. Burger: I mean, I take it what you’re saying is that opinions would fall on the one side of that line and factual statements on the other.

Mr. Mozart G. Ratner: I’m inclined to believe they would, unless opinions were matters of fact which, conceivably, they might be.

Chief Justice Warren E. Burger: They might be.

Mr. Mozart G. Ratner: In other words, I might have an opinion of Your Honor and state the contrary, one falsely and maliciously, and that, I think, might be actionable.

But hyperbole, hyperbole certainly falls on the other side of the line, and that’s the point I really want to make.

That if rhetorical hyperbole, which is what the London statement is, is protected constitution and protected on the phrase that I read in Linn, then the protection must be coextensive with the artist’s imagination and certainly commensurate with the depth of the sentiment or the emotion in this case, particularly revolution against Workers who refuse to join their fellows in the union which the artist is seeking to express.

Actually, the images of the revoked -- that are revoked by the London literature are not too difficult to compare with the image invoked and whose favorable, who can say, “By those people who called Bresler a blackmailer,” which, in Bresler, this Court held enjoyed constitutional protection, and as the Chief Justice said speaking for this Court in Organization for Better Austin versus Keefe.

“As long as the means of circulating such statements, and by such statements in that parenthetical expression, I mean, extravagant rhetorical hyperbole, are peaceful, the communication need not meet standards of acceptability.”

Standards of acceptability for good hyperbole and bad hyperbole, there are none, and I suggest--

Chief Justice Warren E. Burger: That was a prior restraint case, wasn’t it?

Mr. Mozart G. Ratner: Yes, Your Honor.

As it happens, Austin was a prior restraint case.

But, what is --

Chief Justice Warren E. Burger: So that is right within the Doctrine of the Near against Minnesota.

Mr. Mozart G. Ratner: I understand that the general framework of Austin was Near versus Minnesota and the prior restraint.

But, what is said there about the First Amendment and about the reasons for knocking down the rationale of the Illinois Court which said that what it was doing was protecting the privacy of this businessman to conduct his business the way he chose to do legally, and as the laws of the State of Illinois gave him the right to conduct, and who chose and elected not to sign the contract that this organization placed before him and demanded that sign, and the Supreme Court held that that was an invasion of his privacy and it further held that the leafleting was not protected because it was a means of coercing him to change his business practices rather than as a means of communicating ideas.

The striking down of those arguments was a matter of the philosophy of the First Amendment not Near versus Minnesota and prior restraint.

Now, in one place, we distinguish this case most seriously from the case that preceded it.

Workmen drawn together in a common occupation by a common employer worked together whether they liked it or not, they’re in a common community, and a choice to bond together as a union and to become members of the same organization and participate in its affairs and to contribute to its upkeep and to abide by its rules and by its laws is a voluntary choice that each of them must make in the society in which we live.

I take the liberty from quoting from this Court’s decision in Time versus Hill, 385 US 38.

“Exposure of the self to others in varying degrees is a concomitant of life in a civilized community.

The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.”

And so, every letter carrier exposes himself to the good or ill will of his fellows, those who are union members and those who are not, and when he makes the decision or when he makes the choice to join them in their union or not.

He by the same token, makes a choice of securing their social good will or their social ill will.

Our opponents, indeed, concede that the union has a right to publish the fact of their scabness, that they are scabs, and by publishing it, they seek to induce other letter carriers to exert social pressure upon them to join the union.

They say “but they don’t have the right to do it by extravagant hyperbole.”

We say, they do because the First Amendment protects extravagant hyperbole if it protects the right to speak about common interests at all.

Hyperbole, however, extravagant, is not obscenity.

What is relevant to this case is that the right to publish honestly held views or opinions in classic or artistic or hyperbolic form is protected where the publication particular goes to a special audience which has a special interest in the subject matter.

As this union monthly newsletter went only to the members of the union who were intimately concerned with the union status of each of the non-members because it affected their pocketbooks immediately for one thing.

Justice Lewis F. Powell: May I inquire what the circulation of the monthly newsletter was?

Mr. Mozart G. Ratner: 525, 420 of whom are active members of the letter carriers, the balance being retired letter carriers.

Justice Lewis F. Powell: And it’s your position that this is a news media entitled to the same principles that protect the New York Times?

Mr. Mozart G. Ratner: Absolutely.

Justice Lewis F. Powell: Right.

Mr. Mozart G. Ratner: Precisely as if this were a chemical society whose members are all chemists, and whose publication was devoted exclusively to the interest of chemists, it would have no less protection than the New York Times.

Justice Lewis F. Powell: Is any limit on this?

I live in an apartment here in Washington, that publishes monthly a little mini graph sheet; sometimes it’s a page, sometimes it’s a couple of pages, news about our apartment.

Would that be the equivalent of the news media for constitutional purposes?

Mr. Mozart G. Ratner: I see no reason why the New York Times rule should not apply for the publisher of that publication, none whatsoever.

Assuming the posture that you put into your question that the matter is limited to matters of common and proper interests to the residents of the apartment.

I’m not saying that everything that -- each resident of the apartment may do in his own privacy of his home, as a matter of legitimate interest was negligent.

But, if what he does affects by doing of it the lives of those around him, he doesn’t take his garbage and drop it in the appropriate garbage disposal place, but leaves it outside for somebody else's to do or sneak up the hall.

I am sure that this is a matter about which the publication might legitimately take note.

Justice Lewis F. Powell: Assume there was no publication whatever and the manager of the apartment falsely accused the tenant of misconduct, would that be subject to the same protection as the principle annunciated in New York Times, gives people in the press?

Mr. Mozart G. Ratner: I see nothing in the rationale of New York Times or the First Amendment that warrants extension to that case.

Justice Lewis F. Powell: In other words, you draw the line between media as broadly defined by you on the one hand and what an individual may say in his individual capacity?

Mr. Mozart G. Ratner: I think that freedom of speech and freedom of the press have a quite different meaning when they are involved in matters of concern to more than two disputants of the two individuals who may be considering something, yes.

Justice Lewis F. Powell: Well, suppose he -- suppose the slander were heard in a stomp speech on a corner of a public street.

Would the speaker have the same protection as a news media?

Mr. Mozart G. Ratner: It depends of what he’s talking about, what the interest of his audience is.

If there is both a common interest in the subject matter and relevancy to that subject matter and an interest of the speech in that subject matter, and if the subject to which the speech is addressed as somehow been involved willingly or unwillingly, but necessarily involved under the filthy or in the controversy, the speaker on the stomp is entitled to no less protection than the publisher.

Let’s not speak to the publisher of the New York Times, if Your Honor please, because I think that’s the wrong analogy.

Let’s talk about the man who arrives at the city hall meeting and calls Bresler a Black man.

He is the person whose constitutional rights on the First Amendment issue are the equivalent of your public speaker on the stomp.

We have a different case here because we have a labor dispute and we have Linn and we have federal preemption and so on, so this is an easier case.

But, the case that you put must be measured, it seems to me, in terms of the outraged citizen of Greenbelt who thinks that Black -- Bresler’s tactics are Black.

Now, I want to turn a few moments that are left to what the Supreme Court of Virginia did with this case.

The first thing it did with this case was to throw Linn out of the window on the ground that it had a new theory.

You couldn’t have a violation of Virginia statute for insulting words unless you also came up with common law malice.

The answer is that common law malice has nothing whatsoever to do with Linn.

That was reversed in favor of the New York Times rule which was adopted by analogy.

Secondly, the Court got rid -- I will reserve the balance of my time.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Ratner.

Mr. Kapral.

Argument of Stephen M. Kapral

Mr. Stephen M. Kapral: Mr. Chief Justice Burger and members of the Honorable Court.

I would like to distinguish a few matters concerning factual situations.

It must be kept in mind that all three of the appellees involved here have been employed in the Richmond Postal Service for 14, 13, and 12 years respectively.

During this time, they elected not to become affiliated with the union, a right that they certainly had under Executive Order 11491 in the Virginia right to work law.

Now, on two occasions preceding the libelous publication in question, the name of Mr. Austin was printed on the local branch newsletter under the heading of the list of scabs at the time the actual so called Jack London definition was not in there, just the names under list of scabs.

Mr. Austin didn’t like this at all, and he, first of all, went to the Richmond Postmaster of the Richmond Post Office stating that he thought that management should be advised that coercive tactics were being used on persons trying to get them to join the union.

Nothing was done so he then went to the local union President of the local union.

At that time, he received a response that there is nothing the local union could do about it, absolutely nothing.

This was a tool used by the union to attempt to get persons to join the union, and the only thing he could do would be to join the union.

Now, at this time, I would make it perfectly clear that the calling of the appellees as scabs is not the subject of the suit involved here.

But, rather, what we are concerned with is the fact that these three gentlemen were held up to ridicule with their fellow employees by attributing to each one of them lack of character, rotten principles, and being traitors to God, country, family, and class.

A union would contend that certainly this was mere hyperbole that no one would take the same seriously, but the fact remains that at the trial, Secretary Angelo Parker of the union testified that he felt the appellees’ principle should be questioned, in fact, he felt they had rotten principles.

The President of the local union testified that this was done for one reason and one reason alone, so that fellow employees would stop associating with these three persons.

I think an interesting point in clarifying the situation that we are dealing with here today is being one of first instance, was brought forth by Mr. Kenneth Fiester, President of the International Labor Press Association where, on the witness stand, he testified that he has been involved in the labor movement for some 30 years and that during these 30 years he had seen this article printed numerous times.

In fact, so many numerous times that he couldn’t even begin to try to count how many times.

Yet, under cross-examination, he admitted that in the entire 30 some year period he had never actually seen this article appear listing certain person’s names, named as individuals as here.

All three of the appellees stated that they had all experienced for a very, very long time a good relationship with fellow workers and up until the time this article appeared.

What we have here, I feel the main problem involved here is whether what was done was printing this publication of concerning the appellees whether this falls within the Doctrine of New York Times or Sullivan.

Of course, we propose at this time that it does not.

This Court in Curtis Publishing Co. versus Butts extended the knowing falsity or reckless disregard of truth or false rule to include public figures.

In 1970, this honorable Court in the Rosenbloom case extended this rule to include a private individual with the statements involved and in issue of involvement over a matter of general or public concern.

Now, at this time, I must say it is hard to imagine where any public concern or public issue could be involved here.

What --

Justice Byron R. White: Is there a statutory question in this case at all under the Labor Relations Law?

Mr. Stephen M. Kapral: A preemption question, Your Honor?

Justice Byron R. White: Yes.

Mr. Stephen M. Kapral: Well, there is a question.

There has been a question.

Justice Byron R. White: Well, don’t you think you should deal with that first before getting to the --

Mr. Stephen M. Kapral: Yes, Your Honor, I’m prepared to deal with that.

Justice Byron R. White: Isn’t that Linn?

Mr. Stephen M. Kapral: It’s Linn versus Plant Guard Workers, that’s correct.

Justice Byron R. White: How do you -- I don’t suppose we reach the constitutional question or Metromedia or all those cases if Linn controls this case?

Mr. Stephen M. Kapral: Well, Your Honor, the Linn case, of course, dealt with the extent to which --

Justice Byron R. White: Linn wasn’t a New York Times case?

Mr. Stephen M. Kapral: That’s correct, but Linn dealt to what extent the New York -- to what extent the states are preempted by the National Labor Relations Act in the libel -- to suit for libel involving a labor dispute.

Of course I, at this time, say there wasn’t.

Justice Byron R. White: And if the Linn test applies, this judgment shouldn’t have been entered, should it?

Mr. Stephen M. Kapral: I would respectfully dispute it, Your Honor.

Justice Byron R. White: Oh!

Really?

You think this was consistent with Linn?

Mr. Stephen M. Kapral: In some respects, it was.

I feel that the Linn --

Justice Byron R. White: In some respects, it was inconsistent?

Mr. Stephen M. Kapral: The Court -- Your Honor, the Court stated in Linn that in matters of merely peripheral concern such as the fact of the case indicated here that in a situation like that the states had jurisdiction.

Justice Byron R. White: Well states had jurisdiction to it provided that the viable was proved to have been committed with malice, as defined in the case?

Mr. Stephen M. Kapral: Of course, there, we get into the situation -- of course, the Court said in the Linn case that the New York Times rule was adopted by --

Justice Byron R. White: That’s right.

Mr. Stephen M. Kapral: Analogy.

Justice Byron R. White: That’s right.

Mr. Stephen M. Kapral: And it gets down to the situation what does the term “analogy” actually mean.

Does it mean comparable principles or does it mean by constitutional compulsion?

Justice Byron R. White: Well, anyway, what is your position with respect to the applicability of Linn, whatever Linn means?

Mr. Stephen M. Kapral: My position, Your Honor, is that in the Linn case the Court meant the -- Supreme Court of Virginia stated that in the Linn case the states were not -- of course, this Court stated -- excuse me, the states are not preempted by National Labor Relations Act.

Justice Byron R. White: Why is that?

Is this a labor dispute?

Mr. Stephen M. Kapral: I would go to say it’s not a labor dispute.

I say the fact that three individuals chose a private right not to join the union, a right that they have, is certainly not, I don’t see where it’s a labor dispute.

There’s no question of wages and hours involved, no question of working conditions, no picketing.

Justice Byron R. White: Well, if -- I suppose it’s arguably an unfair labor practice to coerce employees to join a labor union, isn’t it?

Mr. Stephen M. Kapral: Well, Your Honor, there again the appellants --

Justice Byron R. White: Well, isn’t that as plain 8 (b) (3)?

Mr. Stephen M. Kapral: If you would term hyperbolic -- as they would say, this is mere hyperbolic venting of emotions, so therefore, it didn’t come into --

Justice Byron R. White: Yes, but you say it’s more than that?

Mr. Stephen M. Kapral: I say, Your Honor, it’s questionable whether really the --

Justice Byron R. White: If you can’t have this both ways, neither can they?

Mr. Stephen M. Kapral: I realize that.

Justice Byron R. White: Well, what is your position then as to why Linn doesn’t apply?

It must be that you -- if you’re wrong that it’s not a labor dispute, is that the applicability of Linn turns on, whether this is a labor dispute?

Mr. Stephen M. Kapral: I think it’s a question whether there is a labor dispute or not, yes.

I would say at the time that it is not a labor dispute.

The fact bear out it is a labor dispute.

Three unknown individuals, relatively unknown individuals, choose privately not to become affiliated with the union.

Now, the right --

Justice William J. Brennan: What law does the determination whether it’s a labor dispute turn on, the federal or state law?

Mr. Stephen M. Kapral: Well, the National Labor Relations Act, Your Honor.

Justice Mr. Justice Blackman: Federal law?

Mr. Stephen M. Kapral: Federal law.

Justice Mr. Justice Blackman: Well, is the explanation you’ve just given us about Linn, the one that the Virginia Court adopted or did they say Linn wasn’t applicable because there’s malice here?

Mr. Stephen M. Kapral: I believe, Your Honor, that was their holding.

There was actual malice here.

Justice Mr. Justice Blackman: And you’re not trying to explain Linn away on that basis?

Mr. Stephen M. Kapral: I wasn’t, Your Honor, no.

Justice Byron R. White: So the reason the Virginia Court gave, you don’t defend?

Mr. Stephen M. Kapral: Pardon?

Justice Byron R. White: You don’t defend the reason of the Virginia Court?

Mr. Stephen M. Kapral: I do.

Yes, I do.

I certainly have drawn the Virginia view.

Justice William J. Brennan: Well, let’s see.

That would be a position then and if you’re wrong on the issue of labor dispute and Linn does apply, then you’re alternative ground is taken by the Virginia Court, namely that Linn was satisfied?

Mr. Stephen M. Kapral: Yes, and malice was shown.

Justice William H. Rehnquist: Do you contend at all, Mr. Kapral that the fact situation which Linn arose being a labor management dispute, anything that the Linn case said as to the any broader sweep of the preemption would be dictum and be opened to reexamination?

Mr. Stephen M. Kapral: Well, Your Honor, of course the Linn case was more of a classic example of a labor dispute, there was labor and management being involved and not only that, Mr. Linn of course was the head of a large national detective agency.

I think he fell into the question of a public figure certainly more than three appellees do in our case.

Your Honor, of course, the union had a privilege, a qualified privilege.

The right to let fellow members be advised that these three persons were not members of the union.

Nobody doubts that fact, but it could’ve been done in a much more diplomatic way, a way to inform and not to injure.

Chief Justice Warren E. Burger: You don’t have to go so far as to say they must do it in a diplomatic way, do you?

Mr. Stephen M. Kapral: Well, maybe not diplomatic but --

Chief Justice Warren E. Burger: All you have to do is say it in a non-libelous?

Mr. Stephen M. Kapral: In a non-libelous way.

What they would say, Chief Justice Burger, is that what you cannot do directly, you can do indirectly.

In other words, by couching expressions in terms and hyperbolic fashion, you can escape the conscription of libel.

This is what they’re saying and I say, of course, this is not right.

In using this article, of course, in the way -- for the purpose that the union used it, it proves the qualified privilege that was given to them, the privilege that lets the union members know that -- who are not union members and, therefore, they are -- the union is liable to the appellees for doing so.

Aside from being an effort, of course, of the union to compel appellees to join the union, no labor dispute was involved.

Everybody in the Richmond Post Office except the handful of carriers at the Richmond Post Office were already members of the union.

There’s no violence here in any place shown, no picketing, no publicity, in what way possibly could the public have any interest in whether or not these three individuals used their right to join the union or not, exercise that right.

I feel that this case can be, again, can be distinguished from the Rosenbloom case and as much as in that case, of course, it was a circulation intended to reach the general public.

Here, we’re just attempting to reach a specific group, namely the union members and, in that case, of course we had criminal conduct involved.

We had obscenity involved.

Certainly, these are factors that the general public would be interested in, no doubt about it.

But, I say in this case, absolutely no way that I -- possibly a person could say, stretching Rosenbloom way out of proportion, that these persons came under the realm of Rosenbloom.

Of course, all the appellants, Mr. Jack London's article, it was introduced into evidence, and no where does this Jack London article name appellees.

I mean, the article is printed but no where underneath it is anyone’s name listed and, as I said earlier, this was brought out at the trial that never in a 37-year following the labor movement in this country had this person ever since this before.

The main reason we propose at this time that this article was written for one reason alone, to exert pressure on these individuals to join the union and to exert so that fellow workers would austersize them and no longer associate with these persons.

We get into the question of whether freedom of speech in the press permits a publication of this type of a libelous article.

In the case of Chaplinsky versus New Hampshire, this Court stated “That it is well understood that the right of free speech is not absolute at all times and under all circumstances.

There are certain well-defined and narrowly limited classes of speech.

The prevention and punishment of which have never been thought to raise any constitutional problem.”

Now, of course, no violence was present in this case, very true but Mr. Austin, one of the appellants, stated that on one occasion he was confronted by the union steward and he was able to restrain himself from committing an assault upon this person and that the article on many occasions provoked him to the point where he considered committing assault on purpose.

Gentlemen, I thank you.

And, at this time, my colleague Mr. Cherry will continue the argument.

Chief Justice Warren E. Burger: Mr. Cherry.

Argument of Parker E. Cherry

Mr. Parker E. Cherry: Mr. Chief Justice and may the Court please.

This Court in the Linn case afforded workers a measure of protection against malicious libel for causing them harm.

When the workers were given that measure for protection, the New York Times rule had already been promulgated and was held not constitutionally applicable.

Today, we are viewing the measure of protection afforded to non-union workers in the light of the progeny of New York Times as Curtis Publishing Co. and Rosenbloom versus Metromedia.

The majority opinion in Rosenbloom left open to future determination the extent of a private person’s involvement in matters of public interest.

Mr. Justice Marshall, in his dissent in Rosenbloom with which Mr. Justice Stewart and Mr. Justice Harlan concurred, pointed out that two essential and fundamental values conflict, that is the right of an obscure and anonymous person for protection from unjustified insult and wrongful hurt which he states reflects no more than our basic concept of the essential dignity and work of every human being.

On the other hand, the concept of a citizen informed by a free and unfettered press with this conflict, a fundamental right, it is necessary for the Court to determine which of the fundamental rights is a more compelling and paramount.

This conflict must be viewed and result in the light of the particular circumstances under which the conflict arose.

In considering the rights of a private and anonymous citizen giving way by reason of his being involved in a matter of general public interest, the right of a public to be informed by free and unfettered press, I make the point that there is a basic difference between a labor union and public media.

And particularly so in the relationship between a labor union and a non-union worker in a plant or organization in which a union is bargaining agent.

Union, first, is not concerned with informing the public of the general public, but is concerned with promoting its own particular interests, which interests are in direct conflict with the interest of a non-union worker.

The union newsletter which has just been mentioned was circulated only to union members and not to the general public.

On the hand, the media’s only interest is in informing the public on a matter which is of general or public interest.

It is without bias in the matter and this was not true in the case of the union.

When we consider that this background, the right of the individual of non-union worker under the circumstances here of merely failing or refusing to join union as against the right of the general public to know even if this could be considered a matter of general public interest.

The compelling and paramount interest, we assert, is clearly that of the non-union worker.

If union had this right, it would have within its power, by publishing in its newsletter, to make anything a matter of public interest, then that has the bias.

The organization that has the bias would have the right of making it a matter of public interest.

This matter that we’re talking about here had never been in the press, it had never been discussed anywhere.

It was strictly between union and these particular non-union workers.

Under the protection of the New York Times rule, a standard most difficult and almost impossible of proof by the aggrieved person, union would be able to harass and coerce non-union workers, the rights of non-union workers not to join union under various State Right To Work Laws and in the instant case, under the executive order as well, would be largely nullified.

Now, the Executive Order does say specifically that the union cannot, has no right to coerce non-union members into joining.

So that when Mr. Austin went to the Postmaster General and went to the President of that union to complain, he was well within his rights to say they are attempting to coerce me and they themselves, as I took it from what Mr. Ratner said here today, for practical purposes mentioned, they were attempting to coerce him, at least the tactics, as I construe them, would mean that.

In the case before us, the President of the union admitted that this publication was one of the tools used by union to compel non-union members to join.

Unions are, today, wealthy, monolithic organizations with almost unlimited resources as opposed to a few non-union workers in a particular plant.

Armed with virtual immunity under New York Times rule, the union would have within its power the means, if it so chose and as it did here --

Justice Thurgood Marshall: Didn’t this violate the Labor Act?

Mr. Parker E. Cherry: Yes, sir, it violates that.

It violates the --

Justice Thurgood Marshall: It does violate the Labor Act.

Mr. Parker E. Cherry: It does violate that, but the right to union in here is under the Executive Order.

Now, that’s what the Supreme Court of Virginia says that it was under that that they are permitted to --

Justice Thurgood Marshall: But you admit that it was a violation of the National Labor Relations Act?

Mr. Parker E. Cherry: Yes, I don’t think -- I think, yes, I have to say that that’s what they said.

They have the right to -- the National Labor Relations Act says they have no right to coerce, but again, that is on the periphery concern of the National Labor Relations Act.

Justice William H. Rehnquist: Well, would the labor -- would the National Labor Relations Board have a jurisdiction over a labor management dispute between mail carriers and the head of the postal corporation?

Mr. Parker E. Cherry: I do not believe so.

No, sir.

Chief Justice Warren E. Burger: Well, have they exercised any jurisdiction over the --

Mr. Parker E. Cherry: No jurisdiction was ever exercised.

Chief Justice Warren E. Burger: I took your answer to mean that --

Mr. Parker E. Cherry: No, I’m not --

Chief Justice Warren E. Burger: -- if this was a case within the National Labor Relations Act, the conduct that constitutes the coercion that is forbidden by that Act in relation to the constituents covered by it.

Mr. Parker E. Cherry: That’s right, but not within the form that we’re dealing with matters between the employer and the union and whatnot.

Justice Byron R. White: Well, the Virginia Supreme Court said the effect of the Executive Order 11491, which is essentially equivalent in both content and purpose with the National Labor Relations Act?

Mr. Parker E. Cherry: Yes, sir.

Justice Byron R. White: Now, if it’s essentially equivalent, there must be some authority that adjudicates what’s called unfair practices.

Mr. Parker E. Cherry: Well, the Executive Order does say that they shall not coerce workers.

Justice Byron R. White: Alright, now who adjudicates that?

Mr. Parker E. Cherry: I believe the -- because there is in that provision that the Postmaster General in the area has the obligation of seeing that that is imposed.

Justice Byron R. White: But Linn is a preempted case.

Mr. Parker E. Cherry: Yes, sir.

Justice Byron R. White: And it’s a non-preempted case and this Executive Order referred to has no preemptive effect whatsoever while Linn is beside the point, then you do reach the constitution as provided in Linn.

Mr. Parker E. Cherry: Yes, I think so.

Justice Byron R. White: Well, what do you say?

Mr. Parker E. Cherry: I say that -- you mean as to the New York Times rule?

Justice Byron R. White: As to preemption or not.

Mr. Parker E. Cherry: I think that they had not preempted the state jurisdiction in this case.

State had jurisdiction in this case.

Justice William J. Brennan: Now, I understood your colleague to say differently in answer to my question or at least I think so.

Mr. Parker E. Cherry: I did not so -- but, I’ll say it.

In the case -- Now, we do not believe the publication concerning appellees was a matter of public or general interest.

While the appellees join the union or not it could hardly be said to be of any interest or concern for the public generally.

The majority opinion in Rosenbloom expressed --

Justice Mr. Justice Blackman: Mr. Cherry, would you say the same thing about the American Medical Association Journal as not being of any public interest to the public general generally, or the ABA Journal?

Mr. Parker E. Cherry: I think it is -- I think they are probably couched in such terms that they are of interest to a limited authorization and I think perhaps if we read the medical journal, it would deal with probably complex medical terms would not be a general interest for the public but would be of interest to medical members of that kind.

Now, as I stated, the majority opinion in Rosenbloom expressed to future determination the constitutional standard to be applied, if any in the enforcement of state libel laws published by news media by the person’s activity, not within the area of public -- I’m sorry.

Since it is indicated that some areas of a person’s activity are outside area of general or public concern, we urge a non-union member’s decision not to join union is outside that area and, nor should the union be afforded the same protection as is the Court in news media nor is it in effect, arming the union with a club to deal with any reculstive worker who desire to exercise his right not to join.

The overriding and paramount interest here is protection of the individual workers.

It has been said by union that Linn itself required application of the New York Times rule.

However, there is no constitutional compulsion to use the New York Times standard.

Linn decided one issue and one issue only.

Justice William J. Brennan: Excuse me, Mr. Cherry.

I notice in Appendix B of the jurisdictional statement is Executive Order 11491 at page 17a and provides for a federal relations council and then provides that “the Assistant Secretary of Labor for Labor Management Relations shall except as provided in the Section 19 (d) of this order decide complaints of alleged unfair labor practices and alleged violations of the standards of conduct for labor organization” and 19 (d) apparently has reference to that exception covers grievance procedures and so forth in lieu of.

So, apparently, the Executive Order does set up a mechanism whether the termination of complaints of unfair labor practice is comparable to --

Mr. Parker E. Cherry: The National Labor --

Justice William J. Brennan: What the National Labor Relations Board does, doesn’t it?

Mr. Parker E. Cherry: Perhaps.

Justice William J. Brennan: Have you ever heard this being used?

Mr. Parker E. Cherry: No, sir.

I have not.

Justice Byron R. White: Well, if you say that if he -- what you’re saying is that the union tried to coerce these people to be members.

Mr. Parker E. Cherry: That’s right.

Justice Byron R. White: 8 (b) (3) -- No, 8 (b) (1) interfered with restrain of coerced employee in exercise of his rights assured by this order.

Now, one of these rights is to be or not to be a member of a Labor Union.

Mr. Parker E. Cherry: That’s clear, yes.

Justice Byron R. White: So wouldn’t you think this argue -- at least arguably then that what the union was doing here, you say it was coercing to be a member, at least arguably it was an unfair labor practice under this Executive Order.

Mr. Parker E. Cherry: Yes, but in the periphery of concern they are not in the direction, sir.

Justice Byron R. White: Well, I’m -- that may be so, but Linn takes hold, I would suppose, when arguably something is an unfair practice within the exclusive jurisdiction of the NLRB or some comfortable agency.

Mr. Parker E. Cherry: Yes, Linn does so.

We do deal in Linn with preemption.

I have to say that Linn deals with that, but first they have thought that we say it was not --

Justice William J. Brennan: Now, you are and your colleague seem to be --

Mr. Parker E. Cherry: It was not preempted.

Yes, I already said that.

Now, one final point here that in Linn and in reading Linn, because there is a lot of language in Linn that was quoted by my opponent here in that opinion and actually, and I look to the dissenting opinion to see what they said it means and they said that what the majority meant was a malevolent desire to injure, which is not the New York Times rule.

They defined it as we’ve said, they have defined it as a malevolent desire to injure, and that’s not the New York Times standard there.

So, I take it, and they did use in the majority opinion, they did use that language also.

So, I take it that that was it.

I thank you.

Chief Justice Warren E. Burger: Mr. Ratner, you have about four minutes left.

Justice William J. Brennan: Mr. Ratner, is this procedure used very often?

Rebuttal of Mozart G. Ratner

Mr. Mozart G. Ratner: You’re right.

It’s used very often daily.

Justice William J. Brennan: And what -- is it an Assistant Secretary of Labor?

Mr. Mozart G. Ratner: The Deputy is the one who actually makes the decision.

Justice William J. Brennan: Deputy, what?

Mr. Mozart G. Ratner: Assistant Secretary of Labor.

He’s especially delegated.

Justice William J. Brennan: And whether the formality is comparable to what goes on before the Board?

Mr. Mozart G. Ratner: Precisely, they should probably examine these reports everyday.

They come across my desk and exactly this kind of problem.

Incidentally, it is -- were it argued in that fashion, we would vigorously defend and unquestionably win on the ground that this was not coercion within the meaning of the statute.

Justice William J. Brennan: Well, apart from that, on the preemption question.

Mr. Mozart G. Ratner: On the preemption question, there is absolutely no doubt whatsoever.

Justice William H. Rehnquist: Does the National Labor Relations Act govern labor management relations between this union and this management?

Mr. Mozart G. Ratner: It does now, but it didn’t at the time this case arose.

At the time this case arose, labor management relations between this management and this union was governed under the Executive Order referred to which had the enforcement provisions referred to by Mr. Justice Brennan.

In those days, virtually everyday of the week, complaints were made about labor organizations to the Assistant Secretary of Labor about coercion of employees to join union.

Justice William H. Rehnquist: But were they based on, say, 8 (b) (1)?

Mr. Mozart G. Ratner: Yes, they were based on exactly the provisions of the Executive Order which incorporate almost in hyperbole the terms of the national -- the prohibitions of the National Labor Relations Act.

Justice William H. Rehnquist: But it’s by virtue of the Executive Order.

Mr. Mozart G. Ratner: By virtue of the Executive Order, that is your question, yes, and the Court below held that the Executive Order following decisions on matter this Court with three unanimous circuits held that the Executive Order had the force of law and, therefore, for preemption purposes was the equivalent of the National Labor Relations Act.

Justice William J. Brennan: What now brings these relations under the National Labor Relations Act?

Mr. Mozart G. Ratner: The Postal Reorganization Act.

Justice William J. Brennan: Of the --

Mr. Mozart G. Ratner: Which has changed the picture and brought postal labor relations --

Justice William J. Brennan: By explicit provisions?

Mr. Mozart G. Ratner: By explicit provisions under the terms of the National Labor Relations Act.

However, the situation as the Courts below conceded was identical for preemption purposes before, unless we want to forget what preemption is all about which is avoidance of unseemly conflict between federal and state authority.

I want to say that my colleague, Mr. Kapral, keeps confusing in his brief taking a statement literally with taking a statement seriously.

Of course, the hyperbole was intended to be taken seriously.Our point is that it was not and could not have been because it was not written to be and was not published to be taken literally.

It was an expression of emotion in a concept of feelings.

Justice William J. Brennan: Tell me, Mr. Ratner, if the opinion of the Virginia Supreme Court was to be read as same, yes, there is a preemption, but the Linn standard was satisfied.

What’s your answer about --

Mr. Mozart G. Ratner: That that Linn standard was satisfied?

Well, of course, they are completely wrong because the Linn standard was not satisfied.

The Linn standard is New York Times not common law malice.

They are completely wrong about that and they are completely wrong about another thing.

Justice William J. Brennan: Well, wait a minute.

Don’t [Attempt to Laughter] rush so fast.

What they -- apparently, what you’re suggesting they held was, erroneously, that common law malice satisfied the Linn standard.

Mr. Mozart G. Ratner: Yes, sir.

Justice William J. Brennan: When, in fact, what this Court held was that only New York Time malice was satisfied.

Is that it?

Mr. Mozart G. Ratner: That ends it.

Justice William J. Brennan: Alright.

Mr. Mozart G. Ratner: They are wrong exactly the same way and for exactly the same reason in another respect when they sustained the Virginia statute for insulting workmen because they said we now come within the scope of what’s constitutionally immune, that is constitutionally not protected.

When we say that if these words are spoken with common law malice, there’s no over breath problem and no vagueness problem, that all disappears.

They are just flat wrong.

Justice Mr. Justice Blackman: Now, Mr. Ratner, let me interrupt you too.

I think this bears on what you just said and maybe you’ve answered it, but I didn’t quite sense that you did.

If Linn applies, is there a greater and more stringent test under Linn and under the First Amendment?

Mr. Mozart G. Ratner: The only conceivable difference is that you don’t have to unless you wish to reach my special audience: argued, my public issue, argued.

If this is a labor dispute and Linn applies, you don’t have to go where I go in brief.

When I urge you to say that what in fact has happened here or ought to be happened is the transmutation of a better common law rule which always created a qualified privilege for communication to those interested in a particular subject matter.

Creation of that common -- elevation of that common law privilege to constitutional status and then the superimposition upon that elevation of the New York Times test of falsity, intentional or willful, for the old common law falsity test -- not fall test, not a falsity, but to go with.

Thank you.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.