Although Twitter leftists were enraged, my employees were amused. They joked about selling branded salt-shakers and writing sympathetic vignettes about union rebels from Federalist salt mines.
Then things took an unfunny turn. The National Labor Relations Board informed me that the leftist writer Matt Bruenig had filed a formal complaint about my tweet. He withdrew it, but Joel Fleming, a Massachusetts lawyer, filed another.
Mr. Fleming alleged I had violated Section 8(a)(1) of the Wagner Act, which states that “it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7”—namely the rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The accusation was laughable. No employee had expressed a desire to unionize. If anyone had, my joke wouldn’t have stood in the way. Mr. Fleming was an interloper anyway—he had no association with the Federalist. But according to the NLRB, anyone can file such a complaint against any company.
The NLRB proceeded to invade our publication, heedless of the freedom of the press. Members of my staff were subpoenaed to testify in New York, where none of them lived and we had no office. The NLRB attempted to subpoena all emails and communications between staff members going back years—including about editorial decisions, hiring decisions, and confidential sources during our coverage of the Russia-collusion hoax.
Help arrived in the form of the New Civil Liberties Alliance, a nonprofit set up by legal scholar Philip Hamburger that defends constitutional rights against overreach by the administrative state.
The NLRB proposed a settlement: I delete the joke, I post information on the rights of employees to unionize, and the complaint goes away. I said no.
That meant the NLRB’s case against me would be adjudicated by an NLRB employee, Administrative Law Judge Kenneth Chu. As expected, we lost. The board called no witnesses. It submitted my tweet and printouts of Federalist articles and asserted we were not a publication but an “anti-union website.”
The government lawyer claimed that “the editorial positions of the website are reasonably . . . understood as Mr. Domenech’s own,” even though we publish thousands of conflicting opinions under various bylines. Federalist employees filed affidavits stating they viewed my tweet as a joke. Mr. Chu dismissed their opinions as subjective and irrelevant.
Eventually we’ll get to a real court, where we’ll be able to assert our rights and prove our case. Why bother when the stakes seem so low? Because they aren’t. It’s a matter of principle.
It is my good fortune to know many brilliant lawyers who are willing to stand up against abuses of the administrative state. Most people aren’t so lucky. What happens when another small-business owner on social media makes a similar joke? When a neighbor decides to make a federal case out of an impolitic Facebook post? What happens if freedom of speech is only worth what the common business owner is willing to pay in legal fees, missed work and the cost of flying employees to other states to testify in front of bureaucrats?
It’s understandable that those who can’t afford to fight often bend the knee. But in that America, the bureaucrats, and the trolls who use them to shut down speech they don’t like, will keep rolling on until someone stands up and says no.
Written by Ben Domenech, the publisher of the Federalist.
