Appeals Court Tells the NLRB to Learn What a Joke Is

T hree years ago, Ben Domenech — the founder and then-publisher of the Federalist — responded to a Vox Media writer walkout by tweeting a wisecrack, tagging his own publication (which then employed six people, plus Domenech): “First one of you tries to unionize I swear I’ll send you back to the salt mine.” He followed with a second tweet containing a Simpsons meme about a Dickensian workhouse. It was obviously satirical, as anyone with the remotest bit of common sense could tell. Yet a left-wing lawyer with no connection to the website or any of its employees filed a complaint with the National Labor Relations Board, accusing Domenech and the Federalist of unfair labor practices. In 2020, an administrative-law judge at the NLRB (subsequently upheld by the full NLRB) ruled against Domenech and the Federalist and issued sanctions, including an order to take down the tweet.

At the time, I wrote a detailed review of the related reasons why this decision was insane and dangerous to free speech. Among those were: (1) the procedure that allows any random person to file a complaint (a process that seemed to bother none of the people who professed horror at the Texas abortion law’s citizen-suit mechanism); (2) the NLRB’s humorless ruling and the threat it implied to free speech to allow a media organization to be sued for public satire; (3) the trouble with an administrative-law-judge system that puts cases of this nature before an adjudicator who lacks a federal court’s broader familiarity with how law normally works in other areas; and (4) the NLRB’s completely ignoring the actual context of how the employees of the Federalist would, and did, view the tweet and its effect on their (nonexistent) desire to unionize.

It took two more years, but finally, a panel of the United States Court of Appeals for the Third Circuit ruled unanimously this morning against the NLRB and vindicated the rights of Domenech and the Federalist. That is a victory for both free speech and common sense. The panel divided, however, on the reasons why the NLRB’s case was so bad.

Get the Joke, Folks

Judge Thomas Hardiman (a George W. Bush appointee, joined by Anthony Scirica, a Reagan appointee) concluded that the NLRB’s brute literal-mindedness had simply lost touch with reality: Its “determination that a reasonable employee would view Domenech’s tweet as a threat is not supported by substantial evidence.” While the decision was not a ruling on Domenech’s First Amendment rights, the court took seriously the fact that the entire case was based on public speech: “To give effect to Congress’s intent and avoid conflict with the First Amendment, we must construe the Act narrowly when applied to pure speech, recognizing that only statements that constitute a true threat to an employee’s exercise of her labor rights are prohibited.” As the court explained, no reasonable person who knew the facts and the context would conclude as the NLRB and its judge both did:

The employer’s alleged threat is not viewed in a vacuum. . . . Context is an important part of language, and that’s especially true where, as in this case, pure speech is at issue . . .

The Board disclaimed any reliance on the tweet’s timing or The Federalist’s editorial content, leaving only the words of the tweet, devoid of any context, as support. But the Board erred when it disregarded relevant contextual evidence. . . . Even more problematic than the timing and editorial content the Board ignored are the circumstances surrounding the tweet that the Board and the ALJ never considered. Had the Board considered the tweet’s full context, it could not have concluded that a reasonable FDRLST Media employee would view the tweet as a threat of reprisal. . . . The record contains no sign—indeed, no inkling—of any circumstance at FDRLST Media that leads us to conclude that a reasonable employee would interpret Domenech’s tweet as a veiled threat.

That context made a mockery of the NLRB’s ruling:

The tweet’s suggestion that these employees might be sent “back” to work in a “salt mine” is farcical. The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical. So from the words of the tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view Domenech’s tweet as a plausible threat of reprisal. . . . The Board failed to realize that threatening statements are not usually made in bantering terms like these . . .

Employees’ subjective impressions are especially helpful where, as here, the employer claims his statement was made in jest. Humor is subjective. What is funny to a fisherman may be lost on a farmer. A quip about New England winters is unlikely to get a laugh in Alaska. The propensity for jokes to fall flat for want of context or audience understanding has given rise to idioms like “I guess you had to be there” and “too soon?” Excluding context and viewing a statement in isolation, as the Board did here, could cause one to conclude that “break a leg” is always a threat. But when expressed to an actor, singer, dancer, or athlete, that phrase can reasonably be interpreted to mean only “good luck.” (Quotation and citation omitted.)

So did the fact that it was a tweet:

Domenech posted his message on Twitter, a public platform that limits tweets to 280 characters, which encourages users to express opinions in exaggerated or sarcastic terms. Domenech sent his message to the timelines of his more than eighty thousand Twitter followers, not to the email inboxes of his FDRLST Media employees. And he made the tweet available to the public—a peculiar choice indeed for a threat supposedly directed at six employees. These characteristics of Domenech’s tweet would give a reasonable FDRLST Media employee even more reason to read the tweet as mocking a rival internet media company or commenting on a timely socio-political issue than as threatening reprisal.

The court also noted the Supreme Court standard I referenced in my prior article, under which “any assessment of the precise scope of employer expression . . . must be made in the context of its labor relations setting,” and found that the NLRB had completely ignored the actual labor environment at the Federalist: “The Court has never affirmed a finding of an unfair labor practice based on employer speech alone absent any indicia of labor friction.” The court further chided the NLRB for claiming that the Federalist’s writers would not have known about the context of the tweet, given that it refused to call any of them as witnesses: “The Board cannot avoid the reasonable inference that employees of a media company that focuses on contemporary newsworthy and controversial topics . . . would be aware of a newsworthy and controversial event involving another internet media company simply because the regional counsel chose not to inquire.” (Quotation and citation omitted.) While the court rejected the argument that the NLRB was legally required to call those witnesses, it held against the NLRB its willful blindness to the actual evidence.

Strangers on Twitter

Where the court divided was over whether the case should have been thrown out in the first place because Joel Fleming, the lawyer who brought it, had no connection to the Federalist and suffered no injury or threat of any kind. Judge Paul Matey (a Trump appointee), concurring in the judgment, agreed with the panel majority’s ruling on the merits but argued that the NLRB was misreading its own statute to even allow the case to be filed:

In its haste to join the tedious chorus of disapproval against whatever disfavored view has most recently appeared somewhere on the internet, the Board shelved serious supervision of the protections for America’s employees. . . . As best understood, the National Labor Relations Act cabins charging authority to those who suffered some adverse effect in the workplace. Not, as here, someone who took offense to something seen while scrolling Twitter. As the filer was not aggrieved under the NLRA, the Board lacked jurisdiction to launch this case.

The dispute between Matey and the majority on this point turned on whether prior cases had really settled the question of who is “aggrieved” under the statute, and whether the NLRB’s view deserves the deference of the courts under the Chevron doctrine. If the case went to the Supreme Court, Matey’s argument might get a more serious look at an argument Hardiman described as “foreclosed by our caselaw” and something “only the Supreme Court has power to overturn.” But the NLRB would be foolish in the extreme to pursue this case any further, because the case itself is a joke.