The Third Circuit Court of Appeals will shortly hear argument on a case involving a light-hearted joke and the heavy hand of the administrative state. The case presents the court with the opportunity to restore actual aggrievement to the labor law’s explicit statutory requirement for bringing down the force of the administrative state upon Americans. It also suggests that agencies, courts, and prosecutorial enforcers should get a sense of humor—and comply with the First Amendment.
Amused by a news story about a walkout by union employees at Vox Media, Ben Domenech, publisher of The Federalist, tweeted on his personal account, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Joel Fleming—who is not and has never been a FDRLST Media employee—retweeted the comment at the National Labor Relations Board where he then filed a formal charge claiming that Domenech’s tweet constituted an “unfair labor practice.” Yes, that’s right. A random person, a stranger to The Federalist, claimed to be an “aggrieved” person under the NLRB statute because the tweet did not sit well with him.
But the National Labor Relations Act explicitly provides that unfair labor practice administrative charges may only be filed by a “person aggrieved” by the alleged practice, such as an employee. Case law interpreting “aggrieved” requires that the person must be an employee or otherwise within the zone of interests that are protected by the Wagner Act. Nonetheless, the NLRB interprets an “aggrieved” person to mean “any person.” This broad interpretation allows anyone who deems himself aggrieved to weaponize the NLRB’s investigatory and enforcement powers against anyone with whom they disagree on labor policy. This is to say nothing of the obvious personal and subject-matter jurisdictional defects of such a broad reading and the First Amendment deprivation at stake.
Despite these defects, both an administrative law judge and the NLRB sustained the charges and required Domenech to electronically and physically post a notice at the FDRLST promising not to interfere with his employees’ rights to form or join a union. The board ordered this remedy despite testimony from FDRLST employees that they were not intimidated by the tweet.
The case is now fully briefed at the Third Circuit, where the New Civil Liberties Alliance (my firm) represents FDRLST Media. Amicus briefs in support of FDRLST’s position have come in from FDRLST Media employees, the Cato Institute, Reason Foundation, Individual Rights Foundation, Nadine Strossen, P.J. O’Rourke, Penn and Teller, Tech Freedom, the Institute for Free Speech, Pacific Legal Foundation, prominent First Amendment scholars, and others. Will the Third Circuit breathe further life into this farce, or will it enforce the standing requirement of aggrievement and restore Americans’ right to make jokes without facing charges? Stay tuned.
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