concurring. I concur with the majority in reversing the judgment of the court of appeals. In light of the absence of any evidence connecting the Union or its officers (appellants) to the property damage suffered by the appellees, indeed “the threshold issue is whether use of the epithet ‘scab’ may underpin a state tort action” for invasion of privacy and intentional infliction of emotional distress. I answer this question in the negative for two separate reasons.
First, pursuant to federal law, unions (and persons acting on their behalf) do have the right to use “intemperate, abusive, or insulting language without fear of restraint or penalty,” in the context of a labor dispute. Old Dominion Branch No. 4-96 v. Austin (1974), 418 U.S. 264, 283. Appellees urge several legal theories but each seeks to remedy the single alleged wrong of communication by appellants to third parties of appellants’ low opinion of appellees — or, in a single word, defamation.
Since the very nature of defamation involves speech (either oral or written), it becomes necessary to determine the surrounding circumstances and context in which the alleged defamatory speech took place. That is particularly important in this case because the nature of the activity raises the question as to whether the complained-of speech took place as part of a labor dispute. If the activity was concerned with a labor dispute, then we are required to apply that body of law which regulates and protects concerted activity by an employer who has a disagreement with his employees, or workers who have a disagreement with their employer or with each other.
Whether or not a case arises in the context of a labor dispute is a question of law which the court, not a jury, must decide. Hasbrouck v. Sheet Metal Workers Local 232 (C.A. 9, 1978), 586 F. 2d 691, 694. To make this determination, we must look to the National Labor Relations Act for the definition of “labor dispute” found at Section 152(9), Title 29, U.S. Code:
“The term ‘labor dispute’ includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” (Emphasis added.)
Where the union acts for some arguably job-related reason and not out of pure social or political concerns, a labor dispute exists. Hasbrouck, supra, at 694, fn. 3. In the case before us, the activities appellants were engaged in were precisely the types of concerted activities protected by the National Labor Relations Act. Thus, appellants’ speech clearly took place “in a context where the policies of the federal labor laws leading to protection for freedom of speech are significantly implicated.” Old Dominion, supra, at 279.
The foregoing determination is important because once the appellants’ *235speech is found to be related to a labor dispute, the Supreme Court of the United States has held that appellees may recover only if they are able to prove actual malice on the part of appellants. The landmark case in this regard is Linn v. United Plant Guard Workers (1966), 383 U.S. 53. In Linn, the Supreme Court adopted, for defamation actions arising out of labor disputes, the standard the court had announced in New York Times Co. v. Sullivan (1964), 376 U.S. 254, for defamation actions involving public officials. To make such speech actionable, appellees here must prove that the statements made were, in fact, false, and either that appellants knew they were false or acted with reckless disregard of whether they were true or false. Linn, supra, at 65. There has been no showing of malice by appellees herein.
While on their face the statements made by appellants might appear to fall within the proscription of Linn, the courts have also set forth the “innocent construction” rule. If allegedly libelous words are susceptible to two meanings, one libelous and one innocent, “the libelous meaning should be rejected, and the innocent meaning adopted.” England v. Automatic Canteen Co. of America (C.A. 6, 1965), 349 F. 2d 989, 991. In the case at bar, the words complained-of by appellees could be innocently construed as statements of opinion, not statements of fact. This is especially true in the atmosphere, context and location where the activity took place.
Thus, since the activity arose out of a labor dispute and appellees have failed to show actual malice, the epithets directed at appellees constituted nothing more than vituperous name-calling which does not give rise to a cause of action for defamation.
The question as to whether a certain statement alleged to be defamatory constitutes a statement of opinion or fact is clearly a question of law to be decided by the court. Bigelow v. Brumley (1941), 138 Ohio St. 574 [21 O.O. 471]. In determining whether a statement constitutes a statement of fact or opinion, both the context in which the statement is made and the manner in which it would be construed by those hearing or reading it must be considered. Information Control Corp. v. Genesis One Computer Corp. (C.A. 9, 1980), 611 F. 2d 781. Unless the name-calling can reasonably be interpreted as charging appellees with the commission of the conduct which may be associated with the chosen epithet, it is not libelous. Greenbelt Cooperative Publishing Assn. v. Bresler (1970), 398 U.S. 6. Appellees have failed to show that the speech of appellants, complained-of by appellees, is actionable under the foregoing principles.
Secondly, this case also involves important questions concerning First Amendment rights of free speech. The First Amendment guarantee of freedom of speech provides appellants with the “freedom to think as * * * [they] will and to speak as * * * [they] think,” Whitney v. California (1927), 274 U.S. 357, 375 (Brandeis, J., joined by Holmes, J., concurring), overruled on other grounds, Brandenburg v. Ohio (1969), 395 U.S. 444 [48 *236O.O.2d 320], providing the speech creates no clear and present danger1 nor constitutes “fighting words.”2 Obviously, the case at bar does not fit into either of these classifications as narrowly defined by the United States Supreme Court in the footnoted cases, supra.
This guarantee of freedom is one of our most cherished rights and, as such, has been and continues to be under attack by persons, well-meaning and otherwise, who see attempted curtailment as being in the “public good.” Our government, as we generally know it today, was founded in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. When the Constitution was adopted, a number of people strongly opposed it on the basis that the document contained no Bill of Rights to safeguard certain basic freedoms. See 1 Annals of Congress (1834) 448 et seq. One of the greatest fears was that new powers granted to a central government might be used to curtail freedom of religion, press, assembly and speech. In answer to these concerns, James Madison suggested a series of amendments which, if adopted, would assure that these great liberties would remain safe and beyond the power of any branch of the government to abridge. One of his proposals became the First Amendment, and it is well to remember this history when we are tempted, in any way, to move to restrict any of these precious and valued rights. It is important to often repeat that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.
The age-old ditty of “sticks and stones may break my bones but names will never hurt me” more appropriately applies to this case. The verbiage of the appellants, however offensive and annoying, amounts to a damnum absque injuria. Offensive utterances are a necessary side effect of free speech, whether in a labor context or not. Nonetheless, our premise must remain, that the suppression of speech is never justified merely because its content or mode of expression is offensive to those who hear it and object to the speech.
Accordingly, I concur.
See Brandenburg v. Ohio (1969), 395 U.S. 444, at 447 [48 O.O.2d 320], where the United States Supreme Court explained that words which create a clear and present danger are those which are “directed to inciting or producing imminent lawless action” and are "likely to incite or produce such action.”
See Cohen v. California (1971), 403 U.S. 15, at 20, where the court, relying upon Chaplinsky v. New Hampshire (1942), 315 U.S. 568, described “fighting words” as “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”