No joking matter: Sarcastic tweets not (yet) an Unfair Labor Practice

In a win for internet jokers, the First Amendment trumped the National Labor Relations Board after a federal appellate court held that the Board “misconstrued a facetious remark as a true threat”.  In NLRB v. FDRLST Media, the executive officer of a nonunionized “right-leaning internet magazine” mocked reports that unionized employees of a “left-leaning” publication had walked off the job by tweeting: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”

Although the company had “just seven employees, six of whom were writers and editors” and “none had expressed concern,” a Twitter bystander filed an Unfair Labor Practice (ULP) charge in the unrelated jurisdiction of New York. Affirming its ALJ’s findings of a ULP, the Board entered a cease-and-desist order and required the company to instruct the officer to delete his tweet.

Although the Court ruled that anyone can file a charge (one judge disagreed), it reversed because a reasonable employee would “read the tweet as mocking a rival” and the First Amendment narrows the National Labor Relations Act to “only statements that constitute a true threat to an employee’s exercise of her labor rights.” Here: “The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical.” The Court also noted that the Board found no evidence any employee perceived a threat, the tweet was posted on the executive’s personal Twitter account to eighty thousand followers instead of to employee email inboxes, and the public platform encouraged “opinions in exaggerated or sarcastic terms.”

Exasperated by the Board having “lost the forest for the trees by failing to consider the tweet in context,” the Court pointedly summed up: “Here, the Board spent its resources investigating an online media company with seven employees because of a facetious and sarcastic tweet by the company’s executive officer.”

The pragmatic lessons are less comforting, however. The First Amendment shielded a “tiny media company” only because a court blocked an agency’s aggressive — and unconstitutional — attempt to cancel personal speech in a public forum. Unfortunately, self-preservation may require self-censorship if government prosecutes “pure speech” when any random person complains anywhere. Given the mismatch between bureaucratic resources and capacity for humor, managers should heed the Court on “the propensity for jokes to fall flat for want of context” and pause before posting.

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