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FDRLST v. NLRB

CASE: FDRLST Media, LLC v. NLRB

STATUS: Closed

NCLA ROLE: Counsel

COURTS HEARD IN: 3rd Cir.

ORIGINAL COURT: National Labor Relations Board’s Administrative Law Judge

DECIDING COURT: U.S. Court of Appeals for the Third Circuit

OPENED: June 7, 2019

AGENCIES: National Labor Relations Board

FOCUS AREAS:

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Administrative Speech Controls

The Administrative State tries to squelch speech, especially through licensing, speech bans, and speech mandates. Licensing requires one to get the government’s permission prior to speaking. Nothing was more clearly forbidden by the First Amendment than prior restraints on speech, but such controls are now commonplace.

Did we achieve our litigation objective? Yes, the Third Circuit vacated the National Labor Relations Board’s adverse decision against FDRLST Media.

Court Outcome: Victory in the U.S. Court of Appeals for the Third Circuit as the court declared that Ben Domenech’s humorous tweet was (1) not an unfair labor practice, and (2) protected by the First Amendment.

Larger Impact: This was a tremendous victory for the First Amendment and free speech, as the NLRB was trying to criminalize jokes on Twitter.

Summary: This was a case of whether a random person on Twitter could claim ‘unfair labor practice’ because a Tweet did not sit well with them. Individuals who are not directly impacted by the consequences of a comment on social media should not be allowed to co-opt the muscle of the federal Administrative State to bring frivolous charges, but that was exactly what happened here.

A tweet in jest by Ben Domenech, a co-founder and publisher of NCLA client FDRLST, Media, LLC, which publishes an online magazine, The Federalist, resulted in the filing of a formal charge with the National Labor Relations Board (NLRB). The charging party, Joel F., a Tweeter who saw the post, retweeted it at the NLRB, and then he filed a complaint about the tweet with the NLRB, claiming that sending it constituted an “unfair” labor practice.

The tweet in question was posted on June 6th by Mr. Domenech who jokingly wrote from his personal account: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” The governing statute only allows an “aggrieved” person (such as an employee) to file a charge with the Board. However, the NLRB interpreted “aggrieved” to mean any person. This broad interpretation would have allowed anyone who deemed himself aggrieved—including a completely uninvolved person like Joel F.—to weaponize the NLRB’s investigatory processes against others with whom they disagreed. In Domenech’s case, the charging party was someone on Twitter, completely unrelated to The Federalist or its employees.

Armed with this misguided charge, NLRB subjected FDRLST to an onerous enforcement action that the agency lacked the jurisdiction to pursue. Congress has authorized the National Labor Relations Board to investigate unfair labor practices only when an aggrieved person files a charge with the Board. The NLRB interpreted “aggrieved” person to mean any person. This created the opportunity for anyone who deemed themselves aggrieved to weaponize the NLRB against political opponents.

NCLA represented FDRLST Media to insist that the NLRB limit its enforcement jurisdiction to the complaints of employees aggrieved by an allegedly unfair labor practice.

Ben Domenech, co-founder and publisher of FDRLST Media, LLC

Kara Rollins
Litigation Counsel
Jenin Younes
Litigation Counsel
Margaret A. Little
Senior Litigation Counsel
NCLA FILINGS

Opinion of the U.S. Court of Appeals for the Third Circuit

May 20, 2022 | Read More

Filed 28(j) Letter: NLRB’s Decision in International Union of Operating Engineers, Local No. 150

July 27, 2021 | Read More

Petitioner/Cross-Respondent’s Reply Brief

July 7, 2021 | Read More

Brief for the National Labor Relations Board in U.S. Court of Appeals for the Third Circuit

June 7, 2021 | Read More

Brief of Amici Curiae the Cato Institute, Reason Foundation, Individual Rights Foundation, DKT Liberty Project, Nadine Strossen, P.J. O’Rourke, Clay Calvert, Robert Corn-Revere, Michael James Barton, and Penn & Tellerin Support of Petitioner/Cross-Respondent

March 29, 2021 | Read More

PRESS RELEASES

NCLA Clinches 1st Amend. Victory in NLRB Lawsuit over Ben Domenech Satirical Tweet, No Veiled Threat, Says Court

May 20, 2022

NCLA Satirical Tweet Case Against NLRB Garners Strong Amicus Support over Free Speech Concerns

March 31, 2021 | Read More

NCLA Asks Third Cir. to Reject NLRB’s Jurisdiction over Satirical Tweet Case

March 22, 2021

NLRB Ruling in FDRLST Twitter Joke Case Lacks Common Sense and Sense of Humor, Says NCLA

November 25, 2020

NCLA Rejects NLRB General Counsel’s Approach to The Federalist’s Satirical Tweet Case

July 21, 2020 | Read More

IN THE MEDIA

Biden’s Hurdle: Courts Dubious of Rule by Regulation

The Wall Street Journal

February 7, 2023

Federalist Says NLRB Couldnt Challenge Salt Mine Tweet

Law360

February 7, 2023

No ‘Twitter Exception’ for Federalist Publisher, NLRB Argues

Bloomberg Law

February 7, 2023

Intent Behind Salt Mine Tweet Irrelevant, NLRB Tells 3rd Circ.

Law360

February 7, 2023

Federalists publisher says satirical salt mine tweet didnt violate NLRA

Reuters

February 7, 2023

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