Federalist vs. NLRB: Humor Prevails

Three 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.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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Three 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.