author: Mu. Justice Clark Mr. Justice Black, Mr. Justice Fortas,

text:
    LINN v. UNITED PLANT GUARD WORKERS OF AMERICA, LOCAL 114, et al.
    No. 45.
    Argued November 18, 1965.
    Decided February 21, 1966.

      Donald F. Welday argued the cause for petitioner. With him on the brief was Donald F. Welday, Jr.

      Winston L. Livingston argued the cause for respondents. With him on the brief were Harold A. Cranefield and Nancy Jean Van Lopik.

      Solicitor General Marshall argued the cause for the United States, as amicus curiae, by special leave of Court, urging reversal. With him on the brief were Arnold Ordman, Dominick L. Manoli, Norton J. Come and Laurence S. Gold.

      Paul L. Jaffe filed a brief for Schnell Tool & Die Corp. et al., as amici curiae.

   Mu. Justice Clark

delivered the opinion of the Court.

The case before us presents the question whether, and to what extent, the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S. C. § 141 et seq. (1964 ed.), bars the maintenance of a civil action for libel instituted under state law by an official of an employer subject to the Act, seeking damages for defamatory statements published during a union organizing campaign by the union and its officers. The District Court dismissed the complaint on the ground that the National Labor Relations Board had exclusive jurisdiction over the subject matter. It held that such conduct “would arguably constitute an unfair labor practice under Section 8 (b)” of the Act and that San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), compelled a dismissal on pre-emption grounds. The Court of Appeals affirmed, 337 F. 2d 68, assuming without deciding that the statements in question were “false, malicious, clearly libelous and damaging to plaintiff Linn, albeit they were relevant to the union’s campaign.” At p. 69. We granted certiorari, 381 U. S. 923. We conclude that where either party to a labor dispute circulates false and defamatory statements during a union organizing campaign, the court does have jurisdiction to apply state remedies if the complainant pleads and proves that the statements were made with malice and injured him. The judgment is, therefore, reversed.

I.

Petitioner Linn, an assistant general manager of Pinkerton’s National Detective Agency, Inc., filed this suit against the respondent union, two of its officers and a Pinkerton employee, Leo J. Doyle. The complaint alleged that, during a campaign to organize Pinkerton’s employees in Detroit, the respondents had circulated among the employees leaflets which stated inter alia:

“(7) Now we find out that Pinkerton’s has had a large volume of work in Saginaw they have had it for years.
“United Plant Guard Workers now has evidence
“A. That Pinkerton has 10 jobs in Saginaw, Michigan.
“B. Employing 52 men.
“C. Some of these jobs are 10 yrs. old!
“(8) Make you feel kind sick & foolish.
“(9) The men in Saginaw were deprived of their right to vote in three N. L. R. B. elections. Their names were not summitted [sic]. These guards were voted into the Union in 1959! These Pinkerton guards were robbed of pay increases. The Pinkerton manegers [sic] were lying to us — all the time the contract was in effect. No doubt the Saginaw men will file criminal charges. Somebody may go to Jail!”

The complaint further alleged that Linn was one of the managers referred to in the leaflet, and that the statements in the leaflet were “wholly false, defamatory and untrue” as respondents well knew. It did not allege any actual or special damage but prayed for the recovery of $1,000,000 on the ground that the accusations were libelous per se. Federal jurisdiction was based on diversity of citizenship.

All respondents, save Doyle, moved to dismiss, asserting that the subject matter was within the exclusive jurisdiction of the Board. The record indicates that prior to the institution of this action Pinkerton had filed unfair labor practice charges with the Regional Director of the Board, alleging that the distribution of the leaflets, as well as other written material, had restrained and coerced Pinkerton’s employees in the exercise of their § 7 rights, in violation of § 8 (b)(1)(A) of the Act. The Regional Director refused to issue a complaint. Finding that the leaflets were circulated by Doyle, who was “not an officer or member of the charged union, nor was there any evidence that he was acting as an agent of such union,” he concluded that the union was not responsible for the distribution of the leaflets and that the charge was, therefore, “wholly without basis.” This ruling was sustained by the General Counsel of the Board some two months after this suit was filed.

In an unpublished opinion the District Judge dismissed the complaint holding, as we have already noted, that even if the union were responsible for distributing the material the case was controlled by Garmon, supra. The Court of Appeals affirmed, limiting its holding “to a suit for libelous statements growing out of and relevant to a union’s campaign to organize the employees of an employer subject to the National Labor Relations Act.” At 72.

II.

The question before us has been a recurring one in both state and federal tribunals, involving the extent to which the National Labor Relations Act, as amended, supersedes state law with respect to libels published during labor disputes. Its resolution entails accommodation of the federal interest in uniform regulation of labor relations with the traditional concern and responsibility of the State to protect its citizens against defamatory attacks. The problem is aggravated by the fact that the law in many States presumes damages from the publication of certain statements characterized as actionable per se. 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. Cafeteria Union v. Angelos, 320 U. S. 293, 295 (1943). It is therefore necessary to determine whether libel actions in such circumstances might interfere with the national labor policy.

Our task is rendered more difficult by the failure of the Congress to furnish precise guidance in either the language of the Act or its legislative history. As Mr. Justice Jackson said for a unanimous Court in Garner v. Teamsters Union, 346 U. S. 485, 488 (1953): “The . . . Act . . . leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible.”

The Court has dealt with specific pre-emption problems arising under the National Labor Relations Act on many occasions, going back as far as Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740 (1942). However, in framing the pre-emption question before us we need look primarily to San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). There in most meticulous language this Court spelled out the “extent to which the variegated laws of the several States are displaced by a single, uniform, national rule . . . .” At 241. The Court emphasized that it was for the Board and the Congress to define the “precise and closely limited demarcations that can be adequately fashioned only by legislation and administration,” while “[o]ur task is confined to dealing with classes of situations.” At 242. In this respect, the Court concluded that the States need not yield jurisdiction “where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. . . [o]r where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” At 243-244. In short, as we said in Plumbers’ Union v. Borden, 373 U. S. 690, 693-694 (1963):

“[I]n the absence of an overriding state interest such as that involved in the maintenance of domestic peace, state courts must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of § 7 or the prohibitions of § 8 of the National Labor Relations Act. This relinquishment of state jurisdiction ... is essential ‘if the danger of state interference with national policy is to be averted/ . . . and is as necessary in a suit for damages as in a suit seeking equitable relief. Thus the first inquiry, in any case in which a claim of federal preemption is raised, must be whether the conduct called into question may reasonably be asserted to be subject to Labor Board cognizance.”

We note that the Board has given frequent consideration to the type of statements circulated during labor controversies, and that it has allowed wide latitude to the competing parties. It is clear that the Board does not “police or censor propaganda used in the elections it conducts, but rather leaves to the' good sense of the voters the appraisal of such matters, and to opposing parties the task of correcting inaccurate and untruthful statements.” Stewart-Warner Corp., 102 N. L. R. B. 1153, 1158 (1953). It will set aside an election only where a material fact has been misrepresented in the representation campaign; opportunity for reply has been lacking; and the misrepresentation has had an impact on the free choice of the employees participating in the election. Hollywood Ceramics Co., 140 N. L. R. B. 221, 223-224 (1962); F. H. Snow Canning Co., 119 N. L. R. B. 714, 717-718 (1957). Likewise, in a number of cases, the Board has concluded that epithets such as “scab,” “unfair,” and “liar” are com-

monplace 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. Yet the Board indicated that its decisions would have been different had the statements been uttered with actual malice, “a deliberate intention to falsify” or “a malevolent desire to injure.” E. g., Bettcher Mjg. Corp., 76 N. L. R. B. 526 (1948); Atlantic Towing Co., 75 N. L. R. B. 1169, 1170-1173 (1948). In sum, 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. See Maryland Drydock Co. v. Labor Board, 183 F. 2d 538 (C. A. 4th Cir. 1950). In such case the one issuing such material forfeits his protection under the Act. Walls Manufacturing Co., 137 N. L. R. B. 1317, 1319 (1962).

In the light of these considerations it appears that the exercise of state jurisdiction here would be a “merely peripheral concern of the Labor Management Relations Act,” provided it is limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true or false. Moreover, we believe that “an overriding state interest” in protecting its residents from malicious libels should be recognized in these circumstances. This conclusion is buttressed by our holding in United Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 (1954), where Mr. Justice Burton writing for the Court held:

“To the extent . . . that Congress has not prescribed procedure for dealing with the consequences of tortious conduct already committed, there is no ground for concluding that existing criminal penalties or liabilities for tortious conduct have been eliminated. The care we took in the Garner case to demonstrate the existing conflict between state and federal administrative remedies in that case was, itself, a recognition that if no conflict had existed, the state procedure would have survived.” At 665.

In United Automobile Workers v. Russell, 356 U. S. 634 (1958), we again upheld state jurisdiction to entertain a compensatory and punitive damage action by an employee for malicious interference with his lawful occupation. In each of these cases the “type of conduct” involved, i. e., “intimidation and threats of violence,” affected such compelling state interests as to permit the exercise of state jurisdiction. Garmon, supra, at 248. We similarly conclude that a State’s concern with redressing malicious libel is “so deeply rooted in local feeling and responsibility” that it fits within the exception specifically carved out by Garmon.

We acknowledge that the enactment of § 8 (c) manifests a congressional intent to encourage free debate on issues dividing labor and management. And, as we stated in another context, cases involving speech are to be considered “against the background of a profound . . . commitment to the principle that debate . . . should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). Such considerations likewise weigh heavily here; the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional protection in .any context. After all, the labor movement has grown up and must assume ordinary responsibilities. The malicious utterance of defamatory statements in any form cannot be condoned, and unions should adopt procedures calculated to prevent such abuses.

III.

Nor should the fact that defamation arises during a labor dispute give the Board exclusive jurisdiction to remedy its consequences. The malicious publication of libelous statements does not in and of itself constitute an unfair labor practice. While the Board might find that an employer or union violated § 8 by deliberately making false statements, or that the issuance of malicious statements during an organizing campaign had such a profound effect on the election as to require that it be set aside, it looks only to the coercive or misleading nature of the statements rather than their defamatory quality. The injury that the statement might cause to an individual’s reputation — whether he be an employer or union official — has no relevance to the Board’s function. Cf. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261 (1940). The Board can award no damages, impose no penalty, or give any other relief to the defamed individual.

On the contrary, state remedies have been designed to compensate the victim and enable him to vindicate his reputation. The Board’s lack of concern with the “personal” injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for pre-emption. As stressed by The Chief Justice in his dissenting opinion in Russell, supra:

“The unprovoked, infliction of personal injuries during a period of labor unrest is neither to be expected nor to be justified, but economic loss inevitably attends work stoppages. Furthermore, damages for personal injuries may be assessed without regard to the merits of the labor controversy . . . .” At 649.

Judicial condemnation of the alleged attack on Linn’s character would reflect no judgment upon the objectives of the union. It would not interfere with the Board’s jurisdiction over the merits of the labor controversy.

But it has been insisted that not only would the threat of state libel suits dampen the ardor of labor debate and truncate the free discussion envisioned by the Act, but that such suits might be used as weapons of economic coercion. Moreover, in view of the propensity of juries to award excessive damages for defamation, the availability of libel actions may pose a threat to the stability of labor unions and smaller employers. In order that the recognition of legitimate state interests does not interfere with effective administration of national labor policy the possibility of such consequences must be minimized. We therefore limit the availability of state remedies for libel to those instances in which the complainant can show that the defamatory statements were circulated with malice and caused him damage.

The standards enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), are adopted by analogy, rather than under constitutional compulsion. We apply the malice test to effectuate the statutory design with respect to pre-emption. Construing the Act to permit recovery of damages in a state cause of action only for defamatory statements published with knowledge of their falsity or with reckless disregard of whether they were true or false guards against abuse of libel actions and unwarranted intrusion upon free discussion envisioned by the Act.

As we have pointed out, certain language characteristic of labor disputes may be held actionable per se in some state courts. These categories of libel have developed without specific reference to labor controversies. However, even in ^those jurisdictions, the amount of damages which may be recovered depends upon evidence as to the severity of the resulting harm. This is a salutary principle. We therefore hold that a complainant may not recover except upon proof of such harm, which may include general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or whatever form of harm would be recognized by state tort law. The fact that courts are generally not in close contact with the pressures of labor disputes makes it especially necessary that this rule be followed. If the amount of damages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial. Likewise, the defamed party must establish that he has suffered some sort of compensable harm as a prerequisite to the recovery of additional punitive damages.

Since the complaint here does not make the specific allegations that we find necessary in such actions, leave should be given Linn on remand to amend his complaint, if he so desires, to meet these requirements. In the event of a new trial he, of course, bears the burden of proof of such allegations.

f-H

Finally, it has been argued that permitting state action here would impinge upon national labor policy because the availability of a judicial remedy for malicious libel would cause employers and unions to spurn appropriate administrative sanctions for contemporaneous violations of the Act. We disagree. When the Board and state law frown upon the publication of malicious libel, albeit for different reasons, it may be expected that the injured party will request both administrative and judicial relief. The Board would not be ignored since its sanctions alone can adjust the equilibrium disturbed by an unfair labor practice. If a malicious libel contributed to union victory in a closely fought election, few employers would be satisfied with simply damages for “personal” injury caused by the defamation. An unsuccessful union would also seek to set the election results aside as the fruits of an employer’s malicious libel. And a union may be expected to request similar relief for defamatory statements which contribute to the victory of a competing union. Nor would the courts and the Board act at cross purposes since, as we have seen, their policies would not be inconsistent.

As was said in Garrison v. Louisiana, 379 U. S. 64, 75: “[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.” We believe that under the rules laid down here it can be appropriately redressed without curtailment of state libel remedies beyond the actual needs of national labor policy. However, if experience shows that a greater curtailment, even a total one, should be necessary to prevent impairment of that policy, the Court will be free to reconsider today’s holding. We deal' here not with a constitutional issue but solely with the degree to which state remedies have been pre-empted by the Act.

Reversed and remanded.

Mr. Justice Black,

dissenting.

The Court holds that an individual participant on the employer’s side of a labor dispute can sue the union for libel on account of charges made by the union in the heat of the dispute. By the same token I assume that under the Court’s holding, individual labor union members now have the right to sue their employers when they say naughty things during labor disputes. This new Court-made law tosses a monkey wrench into the collective bargaining machinery Congress set up to try to settle labor disputes, and at the same time exalts the law of libel to an even higher level of importance in the regulation of day-to-day life in this country.

When Congress passed the National Labor Relations Act, it must have known, as almost all people do, that in labor disputes both sides are masters of the arts of vilification, invective and exaggeration. In passing this law Congress indicated no purpose to try to purify the language of labor disputes or force the disputants to say nice things about one another. Nor do I believe Congress intended to leave participants free to sue one another for libel for insults they hurl at one another in the heat of battle. The object of the National Labor Relations Act was to bring about agreements by collective bargaining, not to add fuel to the fire by encouraging libel suits with their inevitable irritations and dispute-prolonging tendencies. Yet it is difficult to conceive of an element more certain to create irritations guaranteed to prevent fruitful collective bargaining discussions than the threat or presence of a large monetary judgment gained in a libel suit generating anger and a desire for vengeance on the part of one or the other of the bargaining parties. I think, therefore, that libel suits are not only “arguably” but inevitably in conflict with the basic purpose of the Act to settle disputes peaceably — not to aggravate them, but to end them. For this reason I would affirm the judgment of the two lower courts.

Moreover, we held in Thornhill v. Alabama, 310 U. S. 88, 102, that “In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.” Discussion is not free, however, within the meaning of our First Amendment, if that discussion may be penalized by judgments for damages in libel actions. See the concurring opinions of Mr. Justice Douglas and myself in New York Times Co. v. Sullivan, 376 U. S. 254, and Garrison v. Louisiana, 379 U. S. 64, and my opinion in Rosenblatt v. Baer, post, p. 94. It is rather strange for this Court to import its novel ideas on libel suits into the area of labor controversies where the effect is bound to abridge the freedom of the parties to discuss their disputes and to settle them through peaceful negotiations. It is strange because one of the hopes of those responsible for modern collective bargaining was that peaceful settlements among the parties working by themselves under the aegis of federal law would be substituted for the old-time labor feuds too frequently accompanied by bitter strife and wasteful, dangerous conflicts verging on private war. Because libel suits in my judgment are inconsistent with both the Constitution of the United States and the policies of the Act, I dissent from the holding of the Court reversing the judgment below.

Mr. Justice Fortas,

with whom The Chief Justice and Mr. Justice Douglas join, dissenting.

In my opinion, the Court’s decision in the present case opens a major breach in the wall which has heretofore confined labor disputes to the area and weaponry defined by federal labor law, except where violence or intimidation is involved. By arming the disputants with the weapon of libel suits and the threat of punitive damages the Court jeopardizes the measure of stability painstakingly achieved in labor-management relations. It introduces a potentially disruptive device into the comprehensive structure created by Congress for resolving these disputes. In so doing, the Court not only sanctions an arrangement inconsistent with the intent of Congress, but, I think, departs from its own decisions narrowly limiting the occasions on which the disputants may, outside of the statutory framework, litigate issues arising in labor disputes.

In my judgment, the structure provided by Congress for the handling of labor-management controversies precludes any court from entertaining a libel suit between parties to a labor dispute or their agents where the allegedly defamatory statement is confined to matters which are part of the fabric of the dispute. The present controversy is just such a case.

Petitioner Linn is an officer of the employer sought to be organized by respondent union. The allegedly defamatory statements, set out in the opinion of the Court, relate to management conduct during the course of the dispute. The leaflets in question allegedly accuse management of lying both to the NLRB and to employees in order to deprive some employees of their right to vote in NLRB elections and to certain pay increases.

As an illustration of the kind of hyperbole characteristic of labor-management strife, this “libel” is hardly incendiary. To the experienced eye, it is pale and anemic when compared with the rich and colorful charges freely exchanged in the heat of many labor disputes.

In response to such a pallid “libel,” the Court today holds that petitioner, perceiving himself the target of a purportedly false and defamatory statement, may sue the union and several of its officers for damages — so long as he pleads that the statement is defamatory, was made with malice, and caused some injury to him. Should he succeed in clearing the hurdles thus set in his path, he may recover not only compensation for his “injuries,” but punitive or exemplary damages as well. These requirements that petitioner plead and prove both malice and special damages — arising from what I regard as the Court’s well-founded concern that, libel suits might otherwise “pose a threat to the stability of labor unions and smaller employers” — may be cold comfort to the potential defendant in a libel suit. “Malice,” which the Court defines as a deliberate intention to falsify or a malevolent desire to injure, is, after all, a largely subjective standard, responsive to the ingenuity of trial counsel and the predilections of judge and jury. And “injury” resulting from words is not limited to tangible trauma. These requirements afford dubious defense on a battlefield from which the qualified umpire — the NLRB — has been removed. In a libel suit, the outcome is determined by standards alien to the subject matter of labor relations, by considerations which do not take into account the complex and subtle values that are at stake, and by a jury unfamiliar with the quality of rhetoric customary in labor disputes. The outcome, in fact, is more apt to reflect immediate community attitudes toward unionization than appreciation for the underlying, long-term perplexities of the interplay of management and labor in a democratic society.

Until today, the decisions of this Court have consistently held that the federal structure for resolving labor disputes may not be breached or encumbered by state remedies where the tortious conduct allegedly involved is either protected or prohibited by federal labor legislation, or even “arguably subject to” federal law— and despite the inability of the NLRB to redress the pecuniary harm suffered by the victim. In Garner v. Teamsters Union, 346 U. S. 485, the Court held that state courts may not enjoin peaceful picketing where plaintiff’s grievance is within the jurisdiction of the NLRB. In Guss v. Utah Labor Board, 353 U. S. 1, the Court held that even where the NLRB declines to exercise its conceded jurisdiction over a labor dispute “affecting commerce,” a parallel remedy before a state board is nonetheless pre-empted. And in San Diego Building Trades Council v. Garmon, 359 U. S. 236, the Court concluded that state courts may not award damages for peaceful picketing, although the conduct involved was only “arguably subject” to the federal statute and despite the NLRB’s decision not to exercise jurisdiction. See also Liner v. Jafco, Inc., 375 U. S. 301; Plumbers’ Union v. Borden, 373 U. S. 690; Local 438, Constr. Laborers v. Curry, 371 U. S. 542. Today marks the first departure from what has become a well-established rule that only where the public’s compelling interest in preventing violence or the threat of violence is involved can the exclusiveness of the federal structure for resolving labor disputes be breached. As was said in Garmon, 359 U. S., at 247: “Even the States’ salutary effort to redress private wrongs or grant compensation for past harm cannot be exerted to regulate activities that are potentially subject to the exclusive federal regulatory scheme.” The majority’s opinion fails to make clear why the participant’s interest in protecting his reputation from the sting of words uttered as part of a labor dispute is a compelling concern which this Court must allow the States to protect, while his interest in preserving his- economic well-being from illegal picketing is not.

By narrowly restricting the permissible exceptions to the general rule of pre-emption and by excluding generally the right to compensation for purely private wrongs, the Court has contributed to the Nation’s success in domesticating the potentially explosive warfare between labor and management. The decision announced today threatens the degree of equilibrium which has been achieved. I think that the Court’s decision both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.

I find support for my view in the evidence as to the intent of Congress. As the majority concedes, Congress has in unmistakable terms recognized the importance of labor-management dialogue untrammelled by fear of retribution for strong utterances. It has manifested awareness that lusty speech provides a useful safety valve for the tensions which often accompany these controversies. For example, Congress has provided that an unfair labor practice charge may not be based on the “expressing of any . views, argument, or opinion ... if such expression contains no threat of reprisal or force or promise of benefit.” 29 U. S. C. § 158 (c) (1964 ed.). And one of its statutes, 29 U. S. C. §411 (a)(2) (1964 ed.), has been construed to prevent unions from disciplining members who utter defamatory statements during the course of internal union disputes. Salzhandler v. Caputo, 316 F. 2d 445 (C. A. 2d Cir.), cert. denied, 375 U. S. 946; Cole v. Hall, 339 F. 2d 881 (C. A. 2d Cir.); Stark v. Twin City Carpenters Dist. Council, 219 F. Supp. 528 (D. C. D. Minn.). Where Congress wishes to create an exception to the general rule of exclusive NLRB jurisdiction, it does so explicitly. See 29 U. S. C. § 187 (1964 ed.), authorizing suits for damages arising out of violations of 29 U. S. C. § 158, and 29 U. S. C. § 164, authorizing judicial remedies where the NLRB declines to assert jurisdiction under 29 U. S. C. § 151 (1964 ed.).

The foregoing considerations do not apply to the extent that the use of verbal weapons during labor disputes is not confined to any issue in the dispute, or involves a person who is neither party to nor agent of a party to the dispute. In such instances, perhaps the courts ought to be free to redress whatever private wrong has been suffered. But this is not such a case. The fact that the Court today rules that, after appropriate amendment of the complaint, a libel action may be maintained on the basis of the circumscribed accusation contained in the leaflet in question demonstrates how very substantial is the breach opened in the wall which has heretofore insulated labor disputes from the vagaries of lawsuits. I would affirm the decision below.

         E. g., Brantley v. Devereaux, 237 F. Supp. 156 (D. C. E. D. S. C. 1965); Meyer v. Joint Council 53, Int’l Bro. of Teamsters, 416 Pa. 401, 206 A. 2d 382, petition for cert. dismissed under Rule 60, 382 U. S. 897 (1965). Blum v. International Assn. of Machinists, 42 N. J. 389, 201 A. 2d 46 (1964).

       We adopt this terminology to avoid confusion with the concept of libel per se, applied in many States simply to designate words whose defamatory nature appears without consideration of extrinsic facts. Although Linn’s complaint alleges that the leaflets were "libelous per se,” his failure to specify the manner in which their publication harmed him indicates that he meant to rely on the presumption of damages. Under our present holding Linn must show that he was injured by the circulation of the statements; this necessarily includes proof that the words had a defamatory meaning.

       The Congress has declared in the Act that employees have the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for mutual aid and protection. § 7. In § 8 (a) Congress has made it an unfair labor practice for an employer to restrain or coerce employees in the exercise of § 7 rights. Likewise, § 8 (b) protects these rights against interference by a labor organization or its agents. And § 8 (c) provides that the expression of any views or opinions “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.” In addition, §9 (c)(1) authorizes the Board, under certain conditions, to conduct representation elections and certify the results thereof. Finally, § 10 grants the Board exclusive power to enforce the prohibitions of the Act.

       See Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv. L. Rev. 38, 66 (1964).

       The wording of the statute indicates, however, that § 8 (c) was not designed to serve this interest by immunizing all statements made in the course of a labor controversy. Rather, § 8 (c) provides that the “expressing of any views, argument, or opinion . . . 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.” 61 Stat. 142 (1947), 29 U. S. C. § 158 (c) (1964 ed.). It is more likely that Congress adopted this section for a narrower purpose, i. e., to prevent the Board from attributing anti-union motive to an employer on the basis of his past statements. See H. It. Rep. No. 510, 80th Cong., 1st Sess., 45 (1947). Comparison with the express protection given union members to criticize the management of their unions and the conduct of their officers, 73 Stat. 523 (1959), 29 U. S. C. §411 (a)(2) (1964 ed.), strengthens this interpretation of congressional intent.

       The fact that the Board has no authority to grant effective relief aggravates the State’s concern since the refusal to redress an otherwise actionable wrong creates disrespect for the law and encourages the victim to take matters into his own hands. The function of libel suits in preventing violence has long been recognized. Developments in the Law — Defamation, 69 Harv. L. Rev. 875, 933 (1956). But as to criminal libel suits see Garrison v. Louisiana, 379 U. S. 64 (1964).

       The Government, as amicus curiae, has urged us to go further. It would limit liability to “grave” defamations — those which accuse the defamed person of having engaged in criminal, homosexual, treasonable, or other infamous conduct. We cannot agree. This would impose artificial characterizations that would encroach too heavily upon state jurisdiction.

       It should be noted that punitive damages were awarded m Laburnum and Russell. In both instances there was proof of compensatory injury resulting from the defendants’ violence.

       Compare, for example, the considerably more imaginative use of vituperation reflected in the allegedly defamatory statement in United Steelworkers of America v. R. H. Bouligny, Inc., 382 U. S. 145. A description of the statement is found in Brief for Respondent, p. 2 (No. 19, O. T. 1965).

       Suits to enforce collective bargaining agreements have been held to arise under 29 IT. S. C. § 185 (a) (1964 ed.) and hence are not within the reach of the pre-emption doctrine. See Smith v. Evening News Assn., 371 U. S. 195; Sovern, Section 301 and the Primary Jurisdiction of the NLRB, 76 Harv. L. Rev. 529 (1963).

       Subsequent to Garmon and Guss, Congress has explicitly removed the obstacles to state-court treatment of labor disputes as to which the NLRB has declined to exercise jurisdiction on the ground of insufficient effect on interstate commerce. 29 U. S. C. § 164 (c) (2) (1964 ed.).

       Although libelous statements cannot serve as the predicate for an unfair labor practice charge, like any other misleading statement they may in certain circumstances induce the NLRB to set aside the results of an election. See Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv. L. Rev. 38, 82-84 (1964).

       Resort to libel suits as an auxiliary weapon in resolving labor disputes presents much more than an abstract threat. For evidence of a growing tendency to invoke these suits see the list of such cases recently pending in the Fourth Circuit alone in Brief for Petitioner, p. 15, United Steelworkers of America v. R. H. Bouligny, Inc., supra; and those discussed at pp. 18-39 of the Appendix to the brief filed by respondents in Nos. 89 and 94, O. T. 1965, and in the present case as amici curiae.


source: Caselaw Access Project

author: Mr. Justice Brennan Mr. Justice Douglas, Mr. Justice Stewart, Mr. Justice Black, Mr. Justice Harlan, Mr. Justice Fortas,

license: Public Domain

text:
    ROSENBLATT v. BAER.
    No. 38.
    Argued October 20, 1965.
    Decided February 21, 1966.

      Arthur H. Nighswander argued the cause for petitioner. With him on the brief were Hugh H. Bournes and Conrad E. Snow.

      Stanley M. Brown argued the cause and filed a brief for respondent.

      Osmond K. Fraenkel, Edward J. Ennis and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
   Mr. Justice Brennan

delivered the opinion of the Court.

A jury in New Hampshire Superior Court awarded respondent damages in this civil libel action based on one of petitioner’s columns in the Laconia Evening Citizen. Respondent alleged that the column contained defamatory falsehoods concerning his performance as Supervisor of the Belknap County Recreation Area, a facility owned and operated by Belknap County. In the interval between the trial and the decision of petitioner’s appeal by the New Hampshire Supreme Court, we decided New York Times Co. v. Sullivan, 376 U. S. 254. We there held that consistent with the First and Fourteenth Amendments a State cannot award damages to a public official for defamatory falsehood relating to his official conduct unless the official proves actual malice — that the falsehood was published with knowledge of its falsity or with reckless disregard of whether it was true or false. The New Hampshire Supreme Court affirmed the award, finding New York Times no bar. 106 N. H. 26, 203 A. 2d 773. We granted certiorari and requested the parties to brief and argue, in addition to the questions presented in the petition for certiorari, the question whether respondent was a “public official” under New York Times and under our decision in Garrison v. Louisiana, 379 U. S. 64. 380 U. S. 941.

The Recreation Area was used principally as a ski resort but also for other recreational activities. Respondent was employed by and directly responsible to the Belknap County Commissioners, three elected officials in charge of the county government. During the 1950’s, a public controversy developed over the way respondent and the Commissioners operated the Area; some protested that respondent and the Commissioners had not developed the Area’s full potential, either as a resort for local residents or as a tourist attraction that might contribute to the county’s taxes. The discussion culminated in 1959, when the New Hampshire Legislature enacted a law transferring control of the Area to a special five-man commission. At least in part to give this new regime a fresh start, respondent was discharged.

Petitioner regularly contributed an unpaid column to the Laconia Evening Citizen. In it he frequently commented on political matters. As an outspoken proponent of the change in operations at the Recreation Area, petitioner’s views were often sharply stated, and he had indicated disagreement with the actions taken by respondent and the County Commissioners.- In January 1960, during the first ski season under the new management, some six months after respondent’s discharge, petitioner published the column that respondent alleges libeled him. In relevant part, it reads:

“Been doing a little listening and checking at Belknap Recreation Area and am thunderstruck by what am learning.
“This year, a year without snow till very late, a year with actually few very major changes in procedure; the difference in cash income simply fantastic, almost unbelievable.
“On any sort of comparative basis, the Area this year is doing literally hundreds of per cent BETTER than last year.
“When consider that last year was excellent snow year, that season started because of more snow, months earlier last year, one can only ponder following question:
“What happened to all the money last year? and every other year? What magic has Dana Beane [Chairman of the new commission] and rest of commission, and Mr. Warner [respondent’s replacement as Supervisor] wrought to make such tremendous difference in net cash results?”

I.

The column on its face contains no clearly actionable statement. Although the questions "What happened to all the money last year? and every other year?” could be read to imply peculation, they could also be read, in context, merely to praise the present administration. The only persons mentioned by name are officials of the new regime; no reference is made to respondent, the three elected commissioners, or anyone else who had a part in the administration of the Area during respondent’s tenure. Persons familiar with the controversy over the Area might well read it as complimenting the luck or skill of the new management in attracting increased patronage and producing a “tremendous difference in net cash results” despite less favorable snow; indeed, witnesses for petitioner testified that they so read the column.

Respondent offered extrinsic proofs to supply a defamatory meaning. These proofs were that the column greatly exaggerated any improvement under the new regime, and that a large part of the community understood it to say that the asserted improvements were not explicable by anything the new management had done. Rather, his witnesses testified, they read the column as imputing mismanagement and peculation during respondent’s tenure. Respondent urged two theories to support a recovery based on that imputation.

II.

The first was that the jury could award him damages if it found that the column cast suspicion indiscriminately on the small number of persons who composed the former management group, whether or not it found that the imputation of misconduct was specifically made of and concerning him. This theory of recovery was open to respondent under New Hampshire law; the trial judge explicitly instructed the jury that “an imputation of impropriety or a crime to one or some of a small group that casts suspicion upon all is actionable.” The question is presented, however, whether that theory of recovery is precluded by our holding in New York Times that, in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations. 376 U. S., at 290-292.

The plaintiff in New York Times was one of the three elected Commissioners of the City of Montgomery, Alabama. His duties included the supervision of the police department. The statements in the advertisement upon which he principally relied as referring to him were that “truckloads of police . . . ringed the Alabama State College Campus” after a demonstration on the State Capitol steps, and that Dr. Martin Luther King had been “arrested . . . seven times.” These statements were false in that although the police had been “deployed near the campus,” they had not actually “ringed” it and had not gone there in connection with a State Capitol demonstration, and in that Dr. King had been arrested only four times. We held that evidence that Sullivan as Police Commissioner was the supervisory head of the Police Department was constitutionally insufficient to show that the statements about police activity were “of and concerning” him; we rejected as inconsistent with the First and Fourteenth Amendments the proposition followed by the Alabama Supreme Court in the case that “[i]n measuring the performance or deficiencies of . . . groups, praise or criticism is usually attached to the official in complete control of the body,” 273 Ala. 656, 674-675, 144 So. 2d 25, 39. To allow the jury to connect the statements with Sullivan on that presumption alone was, in our view, to invite the spectre of prosecutions for libel on government, which the Constitution does not tolerate in any form. 376 U. S., at 273-276, 290-292. We held “that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.” 376 U. S., at 292. There must be evidence showing that the attack was read as specifically directed at the plaintiff.

Were the statement at issue in this case an explicit charge that the Commissioners and Baer or the entire Area management were corrupt, we assume without deciding that any member of the identified group might recover. The statement itself might be sufficient evidence that the attack was specifically directed at each individual. Even if a charge and reference were merely implicit, as is alleged here, but a plaintiff could show by extrinsic proofs that the statement referred to him, it would be no defense to a suit by one member of an identifiable group engaged in governmental activity that another was also attacked. These situations are distinguishable from the present case; here, the jury was permitted to infer both defamatory content and reference from the challenged statement itself, although the statement on its face is only an impersonal discussion of government activity. To the extent the trial judge authorized the jury to award respondent a recovery without regard to evidence that the asserted implication of the column was made specifically of and concerning him, we hold that the instruction was erroneous. Here, no explicit charge of peculation was made; no assault on the previous management appears. The jury was permitted to award damages upon a finding merely that respondent was one of a small group acting for an organ of government, only some of whom were implicated, but all of whom were tinged with suspicion. In effect, this permitted the jury to find liability merely on the basis of his relationship to the government agency, the operations of which were the subject of discussion. It is plain that the elected Commissioners, also members of that group, would Lave been barred from suit on this theory under New York Times. They would be required to show specific reference. Whether or not respondent was a public official, as a member of the group he bears the same burden. A theory that the column cast indiscriminate suspicion on the members of the group responsible for the conduct of this governmental operation is tantamount to a demand for recovery based on libel of government, and therefore is constitutionally insufficient. Since the trial judge’s instructions were erroneous in this respect, the judgment must be reversed.

III.

Respondent’s second theory, supported by testimony, of several witnesses, was that the column was read as referring specifically to him, as the “man in charge” at the Area, personally responsible for its financial affairs. Even accepting respondent’s reading, the column manifestly discusses the conduct of operations of government. The subject matter may have been only of local interest, but at least here, where publication was addressed primarily to the interested community, that fact is constitutionally irrelevant. The question is squarely presented whether the “public official” designation under New York Times applies.

If it does, it is clear that the jury instructions were improper. Under the instructions, the jury was permitted to find that negligent misstatement of fact would defeat petitioner’s privilege. That test was rejected in Garrison, 379 U. S., at 79, where we said, “The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.” The trial court also charged that “[d]efama-tory matter which constitutes comment rather than fact is justified if made without malice and represented fair comment on matters of public interest,” and defined malice to include “ill will, evil motive, intention to injure . . . .” This definition of malice is constitutionally insufficient where discussion of public affairs is concerned; “[w]e held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or 'true.” Garrison, 379 U. S., at 74.

Turning, then, to the question whether respondent was a “public official” within New York Times, we reject at the outset his suggestion that it should be answered by reference to state-law standards. States have developed definitions of “public official” for local administrative purposes, not the purposes of a national constitutional protection. If existing state-law standards reflect the purposes of New York Times, this is at best accidental. Our decision in New York Times, moreover, draws its force from the constitutional protections afforded free expression. The standards that set the scope of its principles cannot therefore be such that “the constitutional limits of free expression in the Nation would vary with state lines.” Pennekamp v. Florida, 328 U. S. 331, 335.

We remarked in New York Times that we had no occasion “to determine how far down into the lower ranks of government employees the 'public official’ designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included.” 376 U. S., at 283, n. 23. No precise lines need be drawn for the purposes of this case. The motivating force for the decision in New York Times was twofold. We expressed “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that [such debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 376 U. S., at 270. (Emphasis supplied.) There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

This conclusion does not ignore the important social values which underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation. But in cases like the present, there is tension between this interest and the values nurtured by the First and Fourteenth Amendments. The thrust of New York Times is that when interests in public discussion are particularly strong, as they were in that case, the Constitution limits the protections afforded by the law of defamation. Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply.

As respondent framed his case, he may have held such a position. Since New York Times had not been decided when his case went to trial, his presentation was not shaped to the “public official” issue. He did, however, seek to show that the article referred particularly to him. His theory was that his role in the management of the Area was so prominent and important that the public regarded him as the man responsible for its operations, chargeable with its failures and to be credited with its successes. Thus, to prove the article referred to him, he showed the importance of his role; the same showing, at the least, raises a substantial argument that he was a “public official.”

The record here, however, leaves open the possibility that respondent could have adduced proofs to bring his claim outside the New York Times rule. Moreover, even if the claim falls within New York Times, the record suggests respondent may be able to present a jury question of malice as there defined. Because the trial here was had before New York Times, we have concluded that we should not foreclose him from attempting retrial of his action. We remark only that, as is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a “public official.”

The judgment is reversed and the case remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Clark concurs in the result.

Mr. Justice Douglas,

concurring.

In New York Times Co. v. Sullivan, 376 U. S. 254, we dealt with elected officials. We now have the question as to how far its principles extend or how far down the hierarchy we should go.

The problems presented are considerable ones. Maybe the key man in a hierarchy is the night watchman responsible for thefts of state secrets. Those of us alive in the 1940’s and 1950’s witnessed the dreadful ordeal of people in the public service being pummelled by those inside and outside government, with charges that were false, abusive, and damaging to the extreme. Many of them, unlike the officials in New York Times who ran for election, rarely had opportunity for rejoinder.

Yet if free discussion of public issues is the guide, I see no way to draw lines that exclude the night watchman, the file clerk, the typist, or, for that matter, anyone on the public payroll. And how about those who contract to carry out governmental missions? Some of them are as much in the public domain as any so-called officeholder. And how about the dollar-a-year man, whose prototype was publicized in United States v. Mississippi Valley Generating Co., 364 U. S. 520? And the industrialists who raise the price of a basic commodity? Are not steel and aluminum in the public domain? And the labor leader who combines trade unionism with bribery and racketeering? Surely the public importance of collective bargaining puts labor as well as management into the public arena so far as the present constitutional issue is concerned.

The Court in Thornhill v. Alabama, 310 U. S. 88, 101-102, put the issue as follows:

“The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.”

If the term “public official” were a constitutional term, we would be stuck with it and have to give it content. But the term is our own; and so long as we are fashioning a rule of free discussion of public issues, I cannot relate it only to those who, by the Court’s standard, are deemed to hold public office.

The question in final analysis is the extent to which the Due Process Clause of the Fourteenth Amendment has displaced the libel laws of the States. I do not suppose anyone would have thought, in those terms at the time the Amendment was adopted. But constitutional law is not frozen as of a particular moment of time. It was indeed not until 1931 that this Court squarely held that the First Amendment was applicable to the States by reason of the Fourteenth (Stromberg v. California, 283 U. S. 359, 368-369) — New York Times being merely an application and extension of that principle. But since freedom of speech is now the guideline, do state libel laws have any place at all in our constitutional system, at least when it comes to public issues? If freedom of speech is the guide, why is it restricted to speech addressed to the larger public matters and not applicable to speech at the lower levels of science, the humanities, the professions, agriculture, and the like?

In my view the First Amendment would bar Congress from passing any libel law, the Alien and Sedition Act (1 Stat. 596) to the contrary notwithstanding. Some think that due process as applied to the States is a watered-down federal version as respects the guarantees in the Bill of Rights that are incorporated into the Fourteenth Amendment. See, e. g., Roth v. United States, 354 U. S. 476, 501 (separate opinion); Beauharnais v. Illinois, 343 U. S. 250, 287 (dissenting opinion). That has been the minority view, the majority maintaining that there is no difference. If there is no difference and if I am right in assuming Congress could not constitutionally pass a libel law, then the question is whether a public issue, not a public official, is involved.

The case is therefore for me in a different posture than the one discussed by the Court. I would prefer to dismiss the writ as improvidently granted. To facilitate our work, however, I have decided to join Part II of the Court’s opinion, as well as Mb. Justice Black’s separate opinion, and to concur in the judgment.

Mr. Justice Stewart,

concurring.

The Constitution does not tolerate actions for libel on government. State defamation laws, therefore, whether civil or criminal, cannot constitutionally be converted into laws against seditious libel. Our decisions in the New York Times and Garrison cases turned upon that fundamental proposition. What the Court says today seems to me fully consonant with those decisions, and I join the Court’s opinion and judgment.

It is a fallacy, however, to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not. As the Court says, “important social values . . . underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation.”

The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.

We use misleading euphemisms when we speak of the New York Times rule as involving “uninhibited, robust, and wide-open” debate, or “vehement, caustic, and sometimes unpleasantly sharp” criticism. What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth.

That rule should not be applied except where a State’s law of defamation has been unconstitutionally converted into a law of seditious libel. The First and Foúrteenth Amendments have not stripped private citizens of all means of redress for injuries inflicted upon them by careless liars. The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.

Moreover, the preventive effect of liability for defamation serves an important public purpose. For the rights and values of private personality far transcend mere personal interests. Surely if the 1950’s taught us anything, they taught us that the poisonous atmosphere of the easy lie can infect and degrade a whole society.

Mr. Justice Black,

with whom Mr. Justice Douglas joins, concurring and dissenting.

Respondent Baer managed the financial affairs of a ski recreation center owned and operated by Belknap County, New Hampshire. Petitioner Rosenblatt, an unpaid columnist for a local newspaper, published a column criticizing the past management of the center. Baer thought the column implied dishonest manipulations in his handling of the finances for the center. Charging this he sued Rosenblatt for libel and obtained a verdict for $31,500 which the Supreme Court of New Hampshire affirmed. This Court, relying on New York Times Co. v. Sullivan, 376 U. S. 254, and Garrison v. Louisiana, 379 U. S. 64, reverses that judgment and remands to the state court under conditions expressed in its opinion that will allow a new trial and another judgment against Rosenblatt. I concur in the reversal but dissent from leaving the case open for a new trial believing that for reasons stated in the concurring opinions of Mr. Justice Douglas and myself in the New York Times and Garrison cases a libel judgment against Rosenblatt is forbidden by the First Amendment which the Fourteenth made applicable to the States.

I think the publication here, discussing the way an agent of government does his governmental job, is the very kind that the First Amendment was adopted primarily to protect. The article here sued on as libelous discusses the use of the public’s money to take care of the public’s business by a paid agent of the public. Unconditional freedom to criticize the way such public functions are performed is in my judgment necessarily included in the guarantees of the First Amendment. And the right to criticize a public agent engaged in public activities cannot safely, and should not, depend upon whether or not that agent is arbitrarily labeled a “public official.” Nor should the right to criticize depend upon how high a position in government a public agent may occupy. Indeed a large percentage of public moneys expended is distributed by local agents handling local funds as the respondent in this case did. To be faithful to the First Amendment’s guarantees, this Court should free private critics of public agents from fear of libel judgments for money just as it has freed critics from fear of pains and penalties inflicted by government.

This case illustrates I think what a short and inadequate step this Court took in the New York Times case to guard free press and free speech against the grave dangers to the press and the public created by libel actions. Half-million-dollar judgments for libel damages like those awarded against the New York Times will not be stopped by requirements that “malice” be found, however that term is defined. Such a requirement is little protection against high emotions and deep prejudices which frequently pervade local communities where libel suits are tried. And this Court cannot and should not limit its protection against such press-destroying judgments by reviewing the evidence, findings, and court rulings only on a case-by-case basis. The only sure way to protect speech and press against these threats is to recognize that libel laws are abridgments of speech and press and therefore are barred in both federal and state courts by the First and Fourteenth Amendments. I repeat what I said in the New York Times case that “An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.”

Finally, since this case is to be sent back and a new trial may follow, I add one further thought. The Court indicates that in a retrial it will be for the trial judge “in the first instance” to decide whether respondent is a “public official.” Statements like this have a way of growing and I fear that the words “in the first, instance” will soon be forgotten. When that happens the rule will be that the Federal Constitution forbids States to let juries decide essentially jury questions in libel cases. After a long fight in England Fox’s Libel Act of 1792 was passed and it provided that juries should be the judges of both the law and the facts in libel cases. This was heralded by all lovers of freedom of speech and press as a victory for freedom. This rule was particularly approved in this country where in 1735 John Peter Zenger was prosecuted in a highly publicized trial for criticizing the government of New York. In that case the Chief Justice of the Province of New York got rid of two lawyers who dared defend Zenger by disbarring them. The lawyer who finally defended Zenger, Andrew Hamilton, won imperishable fame in this country by his boldness in telling the jury that they, not the judge, had the right to say whether or not the defendant was guilty. Zenger was acquitted. 17 How. St. Tr. 675. Many of the States familiar with this oppressive practice of denying the. jury and granting the judge power to determine the guilt of a defendant in libel cases wrote in their constitutions special provisions to protect the right to trial by jury in such cases. I regret to see the Court take a single step in the direction of holding that a judge rather than the jury is to have the determination of any fact in libel cases. Compare Jackson v. Denno, 378 U. S. 368.

Mr. Justice Harlan,

concurring in part and dissenting in part.

I agree with the Court’s opinion except for Part II, in which a section of the trial court’s charge is characterized as depending upon a “theory” of “impersonal” libel, which we held constitutionally impermissible in New York Times Co. v. Sullivan, 376 U. S. 254.

In New York Times, in addition to establishing a constitutional standard governing actions for defamation of public officials, we went on to examine the evidence in that particular case. We found that “it was incapable of supporting the jury’s finding that the allegedly libelous statements were made 'of and concerning’ respondent.” 376 U. S., at 288. The statements in question, in general terms, attributed misconduct to the police of Montgomery, Alabama, during civil rights activities. The plaintiff in the libel suit, the Commissioner of Public Affairs, pressed his action not on the theory that the statements referred to him, but instead “solely on the unsupported assumption that, because of his official position,” the statements must be taken as indicating that he had been involved in the misconduct. 376 U. S., at 289. The Supreme Court of Alabama held that “[i]n measuring the performance or deficiencies of . . . groups [such as the police], praise or criticism is usually attached to the official in complete control of the body,” 273 Ala. 656, at 674-675, 144 So. 2d 25, at 39, and allowed the action by the Commissioner.

In setting aside the state judgment we noted that this proposition had “disquieting implications for criticism of governmental conduct,” 376 U. S., at 291, for it permitted any general statement criticizing some governmental activity to be transmuted into a cause of action for personal libel by the official in charge of that activity. We stated that the liberty of expression embodied in the Fourteenth Amendment forbade a State from permitting “an otherwise impersonal attack on governmental operations” to be used as the basis of “a libel of an official responsible for those operations.” 376 U. S., at 292.

This salutary principle has been applied, I believe incorrectly, to the facts of this case. It is true that, on its face, the alleged libel here seems to discuss only the conduct of governmental operations, viz., the comparative improvement in the management of the ski area. However, the theory on which respondent based his claim is that the rhetorical question, “What happened to all the money last year? and every other year?” was read as accusing him of peculation or culpable mismanagement. The trial court and the Supreme Court of New Hampshire, as well as this Court, have found this a permissible reading of the newspaper article.

The charge of the trial court did not leave the jury free to-convert an “impersonal” into a “personal” libel. The court merely instructed the jury that if it interpreted the article as an accusation of misconduct the jury could find for the plaintiff if either he alone was found to be libeled, or he was one of a small group of persons so libeled. This is conventional tort law. “[I] f the group is small enough numerically or sufficiently restricted geographically so that people reasonably think the defamatory utterance was directed to or intended to include the plaintiff, there may be a recovery.” 1 Harper & James, Torts § 5.7, at 367 (1956). See also Prosser, Torts § 106, at 767-768 (1964); Riesman, Democracy and Defamation: Control of Group Libel, 42 Col. L. Rev. 727, 759-760 (1942). The Restatement of Torts § 564, Comment c (1938), includes this aspect of defamation in language very similar to that of the charge in this case:

“The size of the class may be so small as to indicate that the plaintiff is the person intended or at least to cast such grave suspicion upon him as to be defamatory of him. Thus, a statement that all members of a school board or a city council are corrupt is sufficiently definite to constitute a defamatory publication of each member thereof. If, however, the group or class disparaged is a large one, some particular circumstances must point to the plaintiff as the person defamed. Thus, a statement that all lawyers are dishonest or that all ministers are liars is not defamatory of any particular lawyer or minister unless the surrounding circumstances indicate that he was the person intended.”

This and the trial court’s formulation can scarcely be thought too indefinite, for they reflect standards successfully applied over the years in numerous state cases. See, e. g., Gross v. Cantor, 270 N. Y. 93, 200 N. E. 592; cases cited in Harper & James, supra, § 5.7, at 367; and Prosser, supra, § 106, at 767-768. The rule is an eminently sound one.

As to the facts at hand, it seems to be agreed— apart of course from the public-official “malice” rule which would apply in any event — that if the article in question is read by the jury as an accusation of wrongdoing by Baer, he has a good.cause of action in libel. I see no reason why that cause of action should fail if the jury finds that the article was read as accusing the three Commissioners along with Baer. This is a very different case from New York Times, where the alleged libel concerned not an identified small group responsible for the running of a particular public enterprise, but a criticism of “the police” generally in the discharge of their duties. It seems manifest that in instructing the jury as to a “small group,” the trial judge was not allowing the plaintiff to transform impersonal governmental criticism into an individual cause of action, but was simply referring to this traditional tort doctrine that more than one person can be libeled by the same statement. I cannot understand why a statement which a jury is permitted to read as meaning “A is a thief” should become absolutely privileged if it is read as meaning “A, B, C, and D are thieves.”

Without receding in any way from our ruling in New York Times that impersonal criticism of government cannot be made a basis for a libel action by an official who heads the branch or agency involved, I dissent from the Court’s conclusion that this is such a case. In all other respects I join the Court’s opinion.

Mr. Justice Fortas,

dissenting.

I would vacate the writ in this case as improvidently granted. The trial below occurred before this Court’s decision in New York Times Co. v. Sullivan, 376 U. S. 254. As a result, the factual record in this ease was not shaped in light of the principles announced in New York Times. Particularly in this type of case it is important to observe the practice of relating our decisions to factual -records. They serve to guide our judgment and to help us measure theory against the sharp outlines of reality. Especially where our decision furnishes a necessarily Procrustean bed for state law, I think, with all respect, that we should insist upon a relevant factual record. A subsequent trial may conceivably help respondent, but it will be too late to be of assistance to us.

       N. H. Laws 1959, c. 399.

       The article purports to compare performance of the ski Area under the direction of unnamed persons during the prior year with performance of the Area under the direction of an identified group — a group which includes not only the new manager of the Area, but the new commissioners as well.

       See generally Lewis, The Individual Member’s Right to Recover for a Defamation Leveled at the Group, 17 U. Miami L. Rev. 519, 523-525 (1963).

       See Kalven, The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 207-210.

       Such recovery would, of course, be subject to a showing of actual malice if the individual were a “public official” within the meaning of New York Times.

       It might be argued that the charge instructed the jury to award recovery only if it found that the libel was aimed at Mr. Baer or if it found the libel aimed at Mr. Baer, along with a few others. Such a charge might not be objectionable; we do not mean to suggest that the fact that more than one person is libeled by a statement is a defense to suit by a member of the group. However, we cannot read the charge as being so limited. The jury was told:
      “an imputation of impropriety or a crime to one or some of a small group that casts suspicion upon all is actionable. It is sufficient if Mr. Baer . . . proves . . . that he was one of a group upon whom suspicion was cast . . . ; but Mr. Baer has the burden of showing that the defamation, if you find that there was one, either was directed to him or could have been as one of a small group.” (Emphasis supplied.)
      The latitude allowed the jury to find defamatory reference in this apparently impersonal discussion of government affairs was thus too broad.

       See Gilberg v. Goffi, 21 App. Div. 2d 517, 251 N. Y. S. 2d 823 (1964), aff’d, 15 N. Y. 2d 1023, 207 N. E. 2d 620 (1965); Comment, 114 U. Pa. L. Rev. 241 (1965).

       The New Hampshire court fully recognized that this was the subject of the column. It instructed the jury:
      “You are entitled, I think, to find that the public had a right to be informed about any difficulties or discrepancies in income or thievery at this public area. It’s in the public domain. It’s public property .... Keep in mind that the public has a right to know how their public affairs are being conducted . . . .”

       See, e. g., Opinion of the Justices, 73 N. H. 621, 62 A. 969 (1906).

       For similar reasons, we reject any suggestion that our references in New York Times, 376 U. S., at 282, 283, n. 23, and Garrison, 379 U. S., at 74, to Barr v. Matteo, 360 U. S. 564, mean that we have tied the New York Times rule to the rule of official privilege. The public interests protected by the New York Times rule are interests in discussion, not retaliation, and our reference to Barr should be taken to mean no more than that the scope of the privilege is to be determined by reference to the functions it serves. See Pedriek, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L. Q. 581, 590-591 (1964).

       Compare, e. g., Clancy v. Daily News Corp., 202 Minn. 1, 277 N. W. 264 (1938); Tanzer v. Crowley Publishing Corp., 240 App. Div. 203, 268 N. Y. Supp. 620 (1934); Poleski v. Polish Am. Publishing Co., 254 Mich. 15, 235 N. W. 841 (1931); 1 Harper & James, Torts § 5.26, pp. 449-450 (1956); Prosser, Torts § 110, p. 815 (3d ed. 1964); Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875, 896-897, 901-902 (1949); Comment, 113 U. Pa. L. Rev. 284, 288 (1964); Note, 18 Vand. L. Rev. 1429, 1445 (1965).

       We are treating here only the element of public position, since that is all that has been argued and briefed. We intimate no view whatever whether there are other bases for applying the New York Times standards — for example, that in a particular case the interests in reputation are relatively insubstantial, because the subject of discussion has thrust himself into the vortex of the discussion of a question of pressing public concern. Cf. Salinger v. Cowles, 195 Iowa 873, 889, 191 N. W. 167, 173-174 (1922); Peck v. Coos Bay Times Publishing Co., 122 Ore. 408, 420-421, 259 P. 307, 311-312 (1927); Coleman v. MacLennan, 78 Kan. 711, 723-724, 98 P. 281, 285-286 (1908); Pauling v. News Syndicate Co., 335 F. 2d 659, 671 (C. A. 2d Cir. 1964).

       It is suggested that this test might apply to a night watchman accused of stealing state secrets. But a conclusion that the New York Times malice standards apply could not be reached merely because a statement defamatory of some person in government employ catches the public’s interest; that conclusion would virtually disregard society’s interest in protecting reputation. The employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.

       It is not seriously contended, and could not be, that the fact respondent no longer supervised the Area when the column appeared has decisional significance here. To be sure, there may be eases where a person is so far removed from a former position of authority that comment on the manner in which he performed his responsibilities no longer has the interest necessary to justify the New York Times■ rule. But here the management of the Area was still a matter of lively public interest; propositions for further change were abroad, and public interest in the way in which the prior administration had done its task continued strong. The comment, if it referred to respondent, referred to his performance of duty as a county employee.

       1 Harper & James, Torts §5.29 (1956); Prosser, Torts §110, p. 823 (3d ed. 1964), Restatement, Torts §619. Such a course will both lessen the possibility that a jury will use the cloak of a general verdict to punish unpopular ideas or speakers, and assure an appellate court the record and findings required for review of constitutional decisions. Cf. Speiser v. Randall, 357 U. S. 513, 525; New York Times, 376 U. S., at 285.

       And cf. Farmers Union v. WDAY, 360 U. S. 525, holding that a radio station is not liable for defamatory statements made in a speech broadcast over such station under § 315 (a) of ,the Federal Communications Act of 1934 by a candidate for public office.

       He in fact received no compensation from the Government, but was given $10 per day in lieu of subsistence, plus transportation expenses. See 364 U. S., at 533.

       Cf. Linn v. United Plant Guard Workers, ante, p. 53, where the principle of New York Times Co. v. Sullivan, supra, is extended, via the path of pre-emption, to the field of labor relations.

       There is the view that the “most absolute construction of the First Amendment, as applied to the states by the Fourteenth, would permit a line to be drawn between the spurious common law of seditious libel and the genuine common law of civil liability for defamation of private character.” Brant, The Bill of Rights: Its Origin and Meaning 502-503 (1965). But that ipse dixit overlooks our deeisons which, without defining the outer limits, establish that the First Amendment applies to both. Compare New York Times Co. v. Sullivan, supra, with Garrison v. Louisiana, 379 U. S. 64.

       The complaint was drawn and the trial conducted in conformity with the defamation law as it existed prior to New York Times. Whether the complaint can be amended to conform to the theory of liability announced in New York Times is wholly a matter of state law. See N. H. Rev. Stat. Ann. §514:9 (1955). Whether there can be a new trial is also wholly a matter of state law. See N. H. Rev. Stat. Ann. §526:1 (1955). Whether respondent is a “public official” in the New York Times sense is not ascertainable from the record. We do not even know whether he took an oath of office. So far as we know, he may have been a hybrid in the nature of an independent contractor. Moreover, the oral argument and the briefs were not squarely addressed to the larger and profoundly important questions stirred by this litigation.

       Cf. Mr. Justice Rutledge in Screws v. United States, 325 U. S. 91, 113, 134.

         New York Times Co. v. Sullivan, 376 U. S. 264; Garrison v. Louisiana, 379 U. S. 64.

       See New York Times Co. v. Sullivan, 376 U. S., at 270.

       This is not to say that there do not exist situations where for other reasons state defamation laws may be similarly limited. See Linn v. United Plant Guard Workers, ante, p. 53.

       Irving Brant has recently made the point well:
      “Civil actions for slander and libel developed in early ages as a substitute for the duel and a deterrent to murder. They lie within the genuine orbit of the common law, and in the distribution of American sovereignty they fall exclusively within the jurisdiction of the states. The First Amendment further assures their exclusion from the federal domain. The Fourteenth Amendment, by absorbing the First, unquestionably gives the Supreme Court authority to block state use of civil suits as a substitute for laws of seditious libel. But considering the differences in derivation, in purpose, in value to society, and in the natural location of power, there seems to be no compelling constitutional reason to bar private suits. The most absolute construction of the First Amendment, as applied to the states by the Fourteenth, would permit a line to be drawn between the spurious common law of seditious libel and the genuine common law of civil liability for defamation of private character. It is the misuse of civil liability that offends the Constitution.” Brant, The Bill of Rights: Its Origin and Meaning 502-503 (1965).

      The trial judge charged the jury as follows:
      “An insinuation of a crime is actionable as a positive assertion if the meaning is reasonably plain and clear, and the putting of the words in the form of a question does not change the liability of the defendant if the form and sense of the question is defamatory or derogatory. Now, an imputation of impropriety or a crime to one or some of a small group that casts suspicion upon all is actionable. It is sufficient if Mr. Baer, the plaintiff here, proves on the balance of probabilities by his evidence that he was one of a group upon whom suspicion was cast, and the fact that others in this group might also have been libeled is not a defense; but Mr. Baer has the burden of showing that the defamation, if you find that there was one, either was directed to him or could have been as one of a small group.” It. Vol. V, pp. 148-149.

      “Now, as to any part of the article which you, if you do, find defamatory, and that Mr. Baer was intended, or he with a few others was intended, he and a small group, if you find that it was derogatory of him and charged him with a crime, held him up to scorn and ridicule, that he was the fellow, either singly or in a small group, then you can go on to consider — and you should — whether the publication was privileged or justified ft. Vol. V, pp. 151-152.


author: Per Curiam.

text:
    LOUISVILLE & NASHVILLE RAILROAD CO. v. UNITED STATES et al.
    No. 792.
    Decided February 21, 1966.

      H. G. Breetz, W. L. Grubbs, M. D. Jones and Joseph L. Lenihan for appellant.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro, Robert W. Ginnane and Leonard S. Goodman for the United States et al. Edward J. Hickey, Jr., James L. Highsaw, Jr., and Robert E. Hogan for appellee Railway Labor Executives’ Association.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    McMORRIS v. CALIFORNIA.
    No. 1036,
    Mise.
    Decided February 21, 1966.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    HEMPHILL et ux., dba CAPITOL SKATELAND v. WASHINGTON STATE TAX COMMISSION.
    No. 812.
    Decided February 21, 1966.

      Joel A. C. Rindal for appellants.

      John J. O’Connell, Attorney General of Washington, Timothy R. Malone, Assistant Attorney General, and H. Eugene Quinn, Special Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 12, et al. v. DEACON.
    No. 841.
    Decided February 21, 1966.

      Charles K. Hackler for appellants.
    Appellee pro se.

   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    NOLAN v. RHODES, GOVERNOR OF OHIO, et al.
    No. 836.
    Decided February 21, 1966.

      Kenneth G. Weinberg and Stewart R. Jaffy for appellant.

      William B. Saxbe, Attorney General of Ohio, for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Fortas took no part in the consideration or decision of this case.


text:
    HC&D MOVING & STORAGE CO., INC., et al. v. YAMANE, STATE TAX COLLECTOR.
    No. 855.
    Decided February 21, 1966.

      J. Garner Anthony for appellants.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    VITORATOS v. MAXWELL, WARDEN.
    No. 1003,
    Mise.
    Decided February 21, 1966.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    NIELSEN v. NEBRASKA STATE BAR ASSOCIATION.
    No. 1018,
    Mise.
    Decided February 21, 1966.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    DYSON v. MARYLAND.
    No. 455,
    Mise.
    Decided February 21, 1966.
    Petitioner pro se.

      Thomas B. Finan, Attorney General of Maryland, and John W. Sause, Jr., Assistant Attorney General, for respondent.
   Per Curiam.

Upon consideration of the entire record and the consent of the Attorney General of Maryland, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The motion to remand is also granted, the judgment of the Court of Appeals of Maryland is vacated and the case is remanded to that court for further consideration in light of its decisions in Schowgurow v. Maryland, 240 Md. 121, 213 A. 2d 475, and Smith v. Maryland, 240 Md. 464, 214 A. 2d 563. This disposition of the case is without prejudice to any other questions presented by the petition for a writ of certiorari.