Censor Speech

Author: NCLA Legal Intern Christian Clase

Elon Musk is well-acquainted with the Administrative State’s obsession with his tweets. The Tesla CEO, already the subject of various Securities and Exchange Commission proceedings based on prior tweets, has drawn the interest of the National Labor Relations Board (NLRB) for questioning the benefits of union membership on Twitter. As a result, Musk joins Ben Shapiro (The Daily Wire), Ben Domenech (The Federalist), and Dave Portnoy (Barstool Sports) in being on receiving end of nearly identical NLRB enforcement actions. Like much of the NLRB’s Twitter policing, the action against Musk is meritless and runs afoul of the First Amendment.

Musk originally drew the ire of NLRB for this series of tweets in 2018:

NLRB prosecuted Musk and Tesla’s Board, claiming the tweet constituted a “threat of reprisal or force” against unionization at Tesla, in violation of the National Labor Relations Act (NLRA). Musk is far from the first target of NLRB’s speech policing on Twitter. The Board has adopted a startling broad definition of “threat” in its effort to censor anti-union opinion or even jokes.

For example, NLRB prosecuted the Federalist for a joke their co-founder, Ben Domenech, made on Twitter: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Despite Federalist employees agreeing the tweet was humorous and meant to satirize Vox employees’ attempts at collective bargaining, NLRB ruled it was an unlawful threat and ordered Domenech to delete his tweet. Domenech refused and appealed the NLRB’s decision to the Third Circuit, where he is represented by NCLA. In its opening brief, NCLA has argued, among other things, that the NRLB’s attempt to quash Mr. Domenech’s speech clearly violates the First Amendment.

The same is true of the Board’s attempt to silence Mr. Musk. Musk was asked on Twitter “How about unions” at Tesla and gave a direct and truthful answer: Tesla employees can absolutely unionize but he sees no reason why they would because Tesla provides better pay, benefits, and safety than the United Auto Workers (UAW). NLRB prosecuted Musk for the heresy of suggesting that a CEO might treat employees better than a union. Despite Musk’s tweet merely presenting an opinion in response to a question about unions, an NLRB administrative law judge ruled that Musk had unlawfully threatened his employees and insisted he delete the tweet.  Like Domenech, Musk refused and appealed NLRB’s censorious decision to the Fifth Circuit in April.

NLRB’s ruling against Musk is hard to square with the First Amendment, which allows employers to communicate “general views about unionism” or “specific views about a particular union” if that view does not indicate the employer will “take action solely of his own initiative.” UNF West, Inc. v. NLRB, 844 F.3d 451, 458 (5th Cir. 2016). Musk’s tweet, especially viewed in the context of a question-and-answer Twitter exchange, merely expresses a view about the UAW and does not indicate Musk would “take action” in response to Tesla employees’ unionization attempts. Thus, Musk’s speech is protected under the First Amendment and should not be censored by NLRB.

It is also unlikely Musk’s tweet is a “threat” within the meaning of the NLRA, or common sense for that matter. Section 158(c) states that an employer’s expression of “any view” is not an “unfair labor practice” if that expression does not contain a “threat of reprisal or force.” It is difficult to discern how NLRB thinks a tweet pointing out facts about UAW is a threat within any normal interpretation of the word. In other contexts, the Supreme Court has held that the First Amendment allows the government to punish only “true threats,” meaning where someone speaks “with the intent to intimidate.” Virginia v. Black, 538 U.S. 343, 344 (2003). The same “true threat” standard should apply to the NLRA’s limits on employer speech, lest that statute be unconstitutional. Mr. Musk’s frank answer, which starts with a clear statement that there is “[n]othing stopping” Tesla employees from unionizing, falls far short of that standard.

When one looks at the totality of NLRB actions against Mr. Musk and others, it is evident that NLRB seeks to stifle honest discourse about unionization. By filing meritless enforcement actions that involve high profile individuals like Elon Musk and Ben Domenech who simply satirize or raise questions about unionization, NLRB chills the expression of smaller employers who lack the resources to defend themselves. The First Amendment exists, in part, to prevent this chilling effect, and NLRB ought to be chastised for their blatant disregard for free speech.


Photo: Steve Jurvetson