United States Court of Appeals For the Third Circuit
FDRLST Media, LLC, Petitioner/Cross-Respondent,
v.
National Labor Relations Board, Respondent/Cross-Petitioner.
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 & Teller In Support Of Petitioner/Cross-Respondent
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Introduction and Summary of Argument
Ben Domenech, publisher of the online politics and culture website The Federalist, jokingly tweeted from his personal Twitter account: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Another Twitter user with no connection to The Federalist filed a charge with the National Labor Relations Board, claiming the tweet amounted to an unfair labor practice by parent company FDRLST Media: threatening reprisal against those wishing to form a union. The NLRB ALJ agreed, as did the Board, ordering Domenech to delete the tweet, among other relief. That order has been appealed, which brings us here.
This case can be resolved on the basis of one fact: Domenech’s tweet was a joke, not a threat. We know this because Domenech sent it out to more than 80,000 followers—and anyone else who might find it through retweets or other shares. That’s not the typical modus operandi for breaking federal labor law. If Domenech really wanted to punish employees of FDRLST Media, he would have done it in an email—and if he really really wanted to punish them, he would have done it in a proverbial meeting (now via Zoom?) that could have been an email.
The tweet was also clearly a joke because it was, well, funny. FDRLST Media is not a cartoonishly evil mega-conglomerate with its own salt mine. Those who approach company headquarters need not fear that Domenech might “release the hounds.” His tweet played into that stereotype for humorous effect. There’s no indication any FDRLST employee viewed it as anything more than a joke because no reasonable FDRLST employee could have viewed it as anything but a joke.
Finally, even though Domenech’s tweet was a joke, this case is not. If you can be haled into court and found in violation of federal law on the basis of satire, sarcasm, or hyperbole, everyone will self-censor their humor, to the detriment of freewheeling discourse. Will the NLRB next come for motivational posters saying, “the beatings will continue until morale improves”? Will exasperated exhortations on Twitter to “burn it all down” lead to house calls from the FBI? Better not to start down that path. The NLRB should learn to take a joke.