“Retweet”: Fifth Circuit Takes Up Free Speech Under NLRA

Kollman & Saucier
Kollman & Saucier

It can be tempting to freely air thoughts and grievances on your cozy corner of the Internet, but lest we forget “the Internet is forever.”  That’s true if you are an ordinary person or the richest person in the world.

Last week the full Fifth Circuit reheard Tesla, Inc.’s appeal from the NLRB decision made in 2021.  The Fifth Circuit’s decision in this matter has broad implications for the First Amendment rights of employers.

The issue arises from Elon Musk’s 2018 tweet (four years before he bought the social media platform Twitter, which he has since renamed “X”) in response to a question regarding his views on unions.  The Tweet was amid the United Auto Workers’ campaign to represent Tesla employees.  Musk wrote:  “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted.  But why pay union dues & give up stock options for nothing?  Our safety record is 2X better than when plant was UAW & everybody already gets healthcare[.]”

The National Labor Relations Board (NLRB or the Board), who administers the National Labor Relations Act (NLRA), considered whether Musk’s tweet had the “reasonable tendency to coerce employees in the exercise of their Section 7 rights.”  An employer’s intent is immaterial to the NLRB’s analysis. The Board found that Musk’s tweet amounted to a threat of a loss of benefits and, accordingly, they ordered Musk to delete the tweet.

After the NLRB’s ruling, Tesla exercised their right to an appeal to the Fifth Circuit.  Judges typically grant decisions from the NLRB a great degree of deference.  Therefore, somewhat not surprisingly, three-judge panel upheld the NLRB’s decision on appeal in March of 2023.

Tesla sought a rehearing by the full Fifth Circuit partly due to the three-judge panel’s deferential review of the NLRB’s 2021 decision.  They claim that Supreme Court and Fifth Circuit precedent state deference may not be granted “to a factfinder’s determination that speech falls outside the First Amendment’s protection.”  Additionally, Tesla argues the panel failed to consider two important factors; (1) a lack of evidence that any employees understood Musk’s tweet as a threat, and (2) the platform, Twitter, on which the statement was made was accessible by the public (and therefore not directed at employees).  The Fifth Circuit granted the rehearing.

Oral arguments were held on January 25th.  The Court was absorbed with two major concerns.  First, there was unease about the precedent created for online platforms (in the event of a ruling in favor of Tesla) since Musk’s statement originated from a Tweet.  Many of the judges acted skeptical of the NLRB’s ruling that the tweet should be deleted (which Musk is yet to comply with).  One judge noted that had Musk’s statement been written in a book, the NLRB would not have ordered all the books to be collected; “So the position of the Board is Twitter enjoys less protection than a book.”

Also, the NLRB’s original ruling came before the Supreme Court decided Counterman v. Colorado in 2023.  The Court’s ruling held that the government must prove that criminal defendants acted with knowledge their statements would be threating.  Tesla fielded questions from the judges regarding expanding the Counterman standard to non-criminal defendants prior to the Supreme Court ruling on such a matter.

A ruling for Tesla would expand the Counterman standard to the NLRA—the Board would need to prove an employer had knowledge their statement would be threating to employees.  Also, the federal court’s long-standing practice of affording the decisions made by the NLRB’s great deference in cases concerning free speech could be brought into question.

For the time being, it is probably best to heed your parent’s warning and be careful what you post online.

Written by Christina Charikofsky.  Christina is a legal intern at Kollman & Saucier and a second year student at the University of Baltimore School of Law.

No Comments
prev next
Email Updates

Enter your email address to subscribe to this blog and receive notifications of new posts by email.