The opinion
Fiiancis, J.
(dissenting). Libel is a crime at common law. It became such primarily because of its potentiality for incitement to violence and consequent breach of the peace. The criminality was found in the utterance of scurrilous "fighting words,” which experience had shown were likely to provoke an immediate breach of the peace. It was found also, as a *405 secondary factor, in the great capacity libel has for harm to the reputation of the victim. 1 Odgers, Libel and Slander (2d Eng. ed. 1887), p. 6; 2 Wharton, Criminal Law and Procedure, § 883, p. 749 (1957); Annotation, 19 A. L. R. 1470 (1922); and see, Beauharnais v. Illinois, 343 U. S. 250 , 254- 257, 72 S. Ct. 725 , 96 L. Ed. 919 (1952).
Violence came to be regarded as such a likely emanation of libel or slander that for reasons of deterrence the law adopted the principle that mere words, written or spoken, no matter how opprobrious, would not be accepted as a defense to assault and battery or manslaughter provoked by them.
Against this background the majority opinion creates an anomaly. If when Blum read the libel he looked out the window of his employer’s plant and saw the writer of the leaflets in a picket line, and in anger went outside and physically assaulted him, the injured man could bring a suit for damages in the state court. But, since under the view of the majority, Blum’s common law action for libel has not only been withdrawn from the state scene, but all right to monetary damages wiped out as well, he could not file a counterclaim in the assault action. That result ignores a fact of life. Ecchymosis of the eye is usually ephemeral; libel frequently scars a reputation forever. The bard whose 400th anniversary we are engaged in celebrating, expressed the age-old view:
“* * * He tiiat filches from me my good name,
Robs me of that which not enriches him,
And maltes me poor indeed.”
A don’t-do-it-again order from the National Labor Relations Board, or a directive to the libeler to post a notice of retraction somewhere, neither deters the wrongdoer nor compensates the victim nor repairs the hurt he suffered.
The opinion of the majority poses another problem. If state court damage actions for libel are preempted because of the possibility that they will disrupt or interfere with national policy in the labor relations field, does it follow that the *406 state’s power to indict for criminal libel has been superseded also ? If the prosecution is not preempted, surely indictment resulting from a criminal complaint of the libeled person, or even the filing of the complaint, would have at least as much effect on the collective bargaining process as the damage action.
Even though the criminal process is not resorted to very frequently in these modern days as punishment for libel, I have referred to the penal aspect because human nature has not changed very much and the capacity of defamatory writings to incite to violence remains with us. Therefore, I believe that if damage actions based on violence on the part of an employer or union are not considered withdrawn from the jurisdictional competence of the state courts, such actions based on libelous utterances on the part of either group, the tendency of which is to trigger violence, ought to be left to the state sovereignty as well. I can see nothing in the language of the Labor Management Relations Act which preempts the one and leaves us the other.
Experience seems to have demonstrated that continuance of jurisdiction in the state courts over civil and criminal matters arising from violence in labor relations has proved a steadying influence on both management and labor in the solution of their disputes. No substantial evidence suggests the national'labor policy has been prejudicially affected by the absence of preemption. Similar state control in controversies over libelous statements undoubtedly will be productive of a like mutual and healthy restraint.
The common law right of an individual to redress for libel, whether he be an employee in the management echelon or a union-member employee or union organizer, ought not to be regarded as removed from the jurisdiction of the state courts by the Labor Management Relations Act unless the Congressional intent or direction to do so is clear. In the absence of an express or plainly implied intention appearing therein to occupy the area exclusively, we should regard it as the duty of our Court to assert the state’s jurisdiction. Since no such *407 clear expression to that end is to be found in the act, and since the precise question has not been authoritatively settled in the federal domain, in my judgment we should retain this libel action in the Law Division.
We cannot concern ourselves at this stage of the proceeding with the question whether the statements set out in the leaflets are libelous. Their defamatory character had to be assumed conclusively for purposes of the summary judgment motion and we must hold to that assumption in order to deal with the only problem to be decided, i. e., the preemption problem.
Eor the reasons stated, I vote to reverse the judgment of the Appellate Division and to reinstate the order of the trial court striking the defense of preemption.
Justices Schettino and Haneman join in this dissent.
For affirmanc e — Chief Justice Weintbaitb, and Justices Jacobs, Pboctok and Hall — -4.
For reversal — -Justices Pbancis, Schettino and Haneman — 3.