Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin

• Decision Date: 27 November 1972
• Docket Number: AFL-CIO
• Citation: 213 Va. 377,192 S.E.2d 737
• Parties: , 82 L.R.R.M. (BNA) 2201, 70 Lab.Cas. P 52,983 OLD DOMINION BRANCH NO. 496, NATIONAL ASSOCIATION OF LETTER CARRIERS,and the National Association of Letter Carriers, v. Henry M. AUSTIN et al.
• Court: Virginia Supreme Court

Page 737

192 S.E.2d 737

213 Va. 377, 82 L.R.R.M. (BNA) 2201, 70 Lab.Cas. P 52,983

OLD DOMINION BRANCH NO. 496, NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO and the National Association of Letter Carriers, AFL-CIO v. Henry M. AUSTIN et al.

Supreme Court of Virginia.

Nov. 27, 1972.

Mozart G. Ratner, Washington, D.C., (Israel Steingold, Richmond, Bernard Ries, Jerry D. Anker, Lichtman, Abeles & Anker, Washington, D.C., on brief), for plaintiffs in error.

Parker E. Cherry, Richmond, Stephen M. Kapral, Sandston (Purcell, Cherry & Kerns, Richmond, on brief), for defendant in error.

Before I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

I'ANSON, Justice.

Defendants, Old Dominion Branch No. 496, National Association of Letter Carriers AFL-CIO, and The National Association of Letter Carriers, AFL-CIO, are here on writs of error to three judgments entered against them on jury verdicts rendered in separate actions brought by the plaintiffs, Henry M. Austin, L. D. Brown, and Roy P. Ziegengeist, under Virginia's insulting words statute, Code § 8--630. The three cases were tried together and the jury awarded each plaintiff compensatory damages of $10,000 and punitive damages of $45,000.

Defendants contend (1) that Code § 8--630 is unconstitutional on its face; (2) that the doctrine of federal preemption precludes the State court from exercising jurisdiction in these cases; (3) that the publication complained of was constitutionally protected free speech under the first and Fourteenth Amendments to the Constitution of the United States; (4) that instruction No. 4 was erroneous; and (5) that the damages awarded were excessive.

The evidence shows the following: Defendants were duly recognized as the exclusive collective bargaining representatives for all letter carriers in the Richmond, Virginia, area. Dues were deducted by the post office accounting office from the union members' pay checks and forwarded to the national labor union's office, and the latter office sent the local 'Branch' its share of the amount collected.

Plaintiffs Austin, Brown and Ziegengeist were employed as letter carriers by the United States Postal Service in Richmond, but they were not members of the union.

In several issues of 'Carrier's Corner,' a monthly newsletter published by the local Branch under the emblem of the National Association of Letter Carriers, the names of the letter carriers who had not joined the union were shown under the heading 'List of Scabs.' Plaintiff Austin complained to the president of the Branch and was told that this was the method used to force non-union members to join the union.

The June 1970 issue of 'Carrier's Corner' carried the 'List of Scabs,' which consisted of fifteen names, including those of the three plaintiffs. Immediately above this list the following appeared.

'The Scab

'Some co-workers are in a quandry as to what a scab is; we submit the following:

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

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

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

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

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

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

Copies of the June newsletter were distributed to members of the local union, and at least one copy was posted on the 'station' bulletin board.

Plaintiff Austin testified that after the June article appeared some of his co-workers stopped speaking to him and otherwise manifested hostility toward him; that on two occasions at social gatherings he was referred to as the scab they were talking about; and that several months after the June publication he began having migraine headaches which were diagnosed by a physician to be the result of tension and nervousness. Brown testified that the article made him upset and nervous; that he had headaches; that he had to work in a hostile atmosphere; and that his co-workers made jokes at his expense and called him names. Ziegengeist testified that he had enjoyed a good relationship with his co-workers, but after the article appeared they became cool toward him; that his wife was distraught; and that he was harassed by union representatives. His teen-aged daughter testified that the article had upset her mother and father, and they were all afraid that someone might come around the house and harm them.

Angelo Barker testified that he was 'Secretary of the Association and editor of the paper.' He said that the statement in the text complained of, that plaintiffs were traitors to their country, was made as a figure of speech, not based on fact, and that he could not say whether or not they were traitors. When cross-examined about other statements in the text he said that 'Since the plaintiffs were getting the benefits of the union without joining, I think they have rotten principles.' The plaintiffs 'are in a sense being * * * leech(es) on these people they are associating with every day (and) I think it should be brought to light to the individuals they are associating with, what is going on.'

Defendants contend that Code § 8--630 is unconstitutional on its face because it is vague and overbroad and infringes upon the right of free speech that is protected by the First and Fourteenth Amendments.

Code § 8--630 reads as follows:

'All words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace shall be actionable.'

Defendants rely on the recent United States Supreme Court case of Gooding v. Wilson, 405 U.S. 518, 520--521, 526--528, 92 S.Ct. 1103, 1105, 1108--1109, 31 L.Ed.2d 408, 413, 416--417 (1972). The Court held that the Georgia statute, providing that 'Any person who shall, without provocation, use to or of another, and in his presence * * * opprobrious words or abusive language, tending to cause a breach of the peace * * * shall be guilty of a misdemeanor,' was on its face unconstitutional, vague and overbroad under the First and Fourteenth Amendments because it had 'not been narrowed by the Georgia courts to apply only to 'fighting' words 'which by their very utterance * * * tend to incite an immediate breach of peace," citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942).

In Virginia we have held that a civil action brought under Code § 8--630, the insulting words statute, is one for libel or slander and the common-law rules of slander are to be applied, even though the language used is defamatory on its face. M. Rosenberg & Sons v. Craft, 182 Va. 512, 528, 29 S.E.2d 375, 382--383 (1944); Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 6, 82 S.E.2d 588, 591 (1954); Shupe v. Rose's Stores, Inc., 213 Va. ---, 192 S.E.2d 766, this day decided.

We have also held that a libelous statement, otherwise actionable, may not be so for the reason that the circumstances under which it was published confer upon the publisher a privilege to publish it. The basis for such privilege is the public interest in free expression and communication of ideas. Where this interest is sufficient to outweigh the interest of the State in protecting the individual plaintiff from damage to his reputation and social relationships, the law does not allow recovery of damages, compensatory or punitive, occasioned by defamatory speech or publication, unless there has been an abuse of the privilege by a showing that the defamatory language, either written or spoken, was made with actual malice. See Story v. Norfolk-Portsmouth Newspapers, 202 Va. 588, 591, 118 S.E.2d 668, 670 (1961); Sanders v. Harris, et al., 213 Va. 369, 192 S.E.2d 754, this day decided.

Under our construction and limitations of Code § 8--630, only those words which are not protected by the First Amendment are actionable under the statute. Thus the objections of vagueness and overbreadth that were raised in Gooding are not applicable in this case.

Defendants contend that the doctrine of federal preemption precludes the State from imposing liability in these cases, since defendants' conduct falls within the area subject to exclusive federal regulation under Executive Order 11491. ¹ The effect of Executive Order 11491, which is essentially equivalent in both content and purpose to the National Labor Relations Act, upon the jurisdiction of state courts to apply state law to an action against a labor union for the publication of libelous statements during a union organizational campaign was determined by the Supreme Court of the United States in Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).

A majority of the Court, through Mr. Justice Clark, in Linn, said:

'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.' 383 U.S. at 55, 86 S.Ct. at 659, 15 L.Ed.2d at 583.

The majority...