Today, TechFreedom filed an amicus brief asking the Third Circuit to overturn a decision of the National Labor Relations Board. In June 2019, Ben Domenech, the publisher of the rightwing online publication The Federalist, tweeted that he might send employees “back to the salt mine.” The Board ruled that the tweet violated federal labor law by interfering with the employees’ right to organize.

Domenech’s tweet was clearly a sarcastic remark, made for public consumption, about a unionization drive at another (leftwing) publication. It was only nominally directed at The Federalist’s handful of employees, who, if anything, oppose unions and unionization on principle. Yet as TechFreedom’s brief explains, labor law can bar only a true threat to punish employees for organizing. Speech that amounts to anything less than a true threat is protected by the First Amendment.

“The Board has mistaken a snarky tweet for a federal case,” said Corbin K. Barthold, TechFreedom’s Director of Appellate Litigation. “We have disagreed with The Federalist often. In particular, we’ve contested their efforts to force other companies to associate with them (and with those who post comments on their website). But they’re clearly in the right here. That we disagree with much of what The Federalist says makes it all the more important that we defend the right to free speech in this case. As Justice Holmes said, there is no freedom for thought unless there is freedom for the thought that we hate.”

“It’s as though the Board pulled its decision from a time machine,” Barthold continued. “The decision gives the term ‘interfere with,’ in federal labor law, the broadest possible definition. The decision doesn’t consider modern Supreme Court free-speech precedents. Those precedents clarify that content-, viewpoint-, and speaker-based regulations are constitutionally suspect. Yet the Board went out of its way to punish speech based on its content (speech about labor relations), viewpoint (speech in opposition to labor organizing), and identity (speech by an employer). The decision should be vacated.”


Read our related work including:

  • Our reply comments to the FCC on the Trump Administration’s proposal to reinterpret Section 230. At pages 21-28, we address The Federalist’s claims that Google has “censored” it.
  • Our recent essay in Lawfare debunking the notion that private social media websites should be treated like government entities subject to First Amendment restrictions. 
  • Another recent essay in Lawfare, in which we explore the First Amendment problems with Florida’s attempt to regulate online speech.

About TechFreedom:TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.