A conservative online magazine’s expected appeal of an NLRB decision finding that its publisher’s tweet was an unlawful anti-union threat will raise thorny questions about the line between First Amendment rights and labor law protections.
In the National Labor Relations Board’s view, The Federalist’s publisher, Ben Domenech, violated federal labor law by threatening via Twitter to send his employees “back to the salt mine” if they attempted to form a union.
But lawyers for FDRLST Media, which operates the magazine, maintain that the offending tweet was just satire and deserved constitutional free speech protections. Punishing the company for expressing a viewpoint disfavored by the NLRB violates the First Amendment, they said.
Courts wrestling with the tension between the First Amendment and labor laws have come to different conclusions depending on what’s at issue. The U.S. Supreme Court, for example, ruled in 2018 that mandatory union fees charged to nonmember workers in the public sector violate the First Amendment.
On the other hand, the U.S. Court of Appeals for the Ninth Circuit last year rejected a union’s First Amendment challenge to an NLRB order blocking it from trying to gain leverage in a labor dispute with one company by encouraging workers from a neutral employer to strike or stop work. When the full Ninth Circuit declined in September to reconsider the ruling, a dissenting judge said it relegated the union’s speech to “second-class constitutional status.”
The NLRB itself is considering placing restrictions on unions’ use of the inflatable protest symbol known as “Scabby the Rat,” despite court rulings that the rat balloon is protected by the First Amendment.
Protections for Satire, Not for Threats
The National Labor Relations Act protects employer speech, stating that written opinions can’t be evidence of unfair labor practices unless they contain a “threat of reprisal or force or promise of benefit.” That section of the law “merely implements the First Amendment,” the Supreme Court said in a leading case, NLRB v. Gissel Packing, on employer speech from 1969.
The NLRB rejected FDRLST Media’s argument that Domenech’s “salt mine” tweet was just a joke and not a threat in its Nov. 25 ruling. Workers would reasonably view the tweet as a message that the company would take quick and adverse action against any of them that tried to unionize, the board said.
“The First Amendment protects satire, but not coercion or threats,” said Charlotte Garden, a Seattle University workplace law professor who’s written about free speech and labor law. “I’d say the board pretty reasonably concluded that the tweet fell in the second category.”
But the NLRB’s opinion was devoid of First Amendment analysis, which is especially surprising because the ruling punished a media company for its speech, said Michael Avakian, counsel for the right-leaning Center on National Labor Policy, which filed a brief backing FDRLST Media.
The challenge to the board’s ruling will partially focus on how the NLRB should apply the Supreme Court’s framework for deciding whether an employer statement is an unlawful threat, said FDRLST Media’s lawyer, Aditya Dynar of the New Civil Liberties Alliance. Under the standard set forth in Gissel, a court’s examination of context is crucial in cases pitting free speech rights against labor law protections, he said.
“The context of a picket line is different than the context of a joke on Twitter,” Dynar said. “The bottom line is the context has been ignored in this decision.”
Standard of Review
One technical issue in the expected appeal that could affect its outcome is what level of review the appellate court will use to examine the NLRB’s decision.
Circuit courts give the NLRB substantial deference when they review board decisions that interpret the NLRA. That generally means they won’t overturn the ruling unless the board lacked enough evidence to support its findings, didn’t apply the proper legal standard, or departed from its precedent without giving reasoned justification.
But when courts second-guess the NLRB’s views on legal issues beyond the NLRA, then they often apply a lower threshold for overturning the board under what’s known as “de novo” review. That standard doesn’t give any weight to what the decision under review found.
Dynar said he expects a court would use that lower threshold when considering free speech arguments to overturn the board’s ruling against FDRLST Media.
But it’s not entirely clear what standard a court would use, said Eugene Volokh, a First Amendment scholar at UCLA. The Supreme Court said in a 1983 decision that free speech cases should generally be reviewed under a de novo standard—but it gave the NLRB deference in the Gissel decision that set the framework for illegal threats, he said.
Regardless of what standard a court uses, the “ultimate question is one of application of law to fact,” Volokh said. “It’s up to the court to decide whether a reasonable person would perceive the tweet as a threat.”