Labor Unions

Make an Anti-Union Joke, Prepare to Be Accused of an Unfair Labor Practice

The NLRB's prosecution of a conservative journalist should be worrisome.

|The Volokh Conspiracy |

When writers at Vox Media staged a walk-out as part of their unionization efforts, Ben Domenech, publisher of The Federalist, responded with a joke on Twitter.

There's no evidence anyone at The Federalist thought this was anything other than a topical joke, responding to a current event. Yet as Domenech recounts in the WSJ, a progressive writer and lawyer responded by filing unfair labor practice complaints with the National Labor Relations Board, and the NLRB pursued these claims with vigor, resulting in this decision against Domenech and The Federalist.

The National Labor Relations Board informed me that the leftist writer Matt Bruenig had filed a formal complaint about my tweet. He withdrew it, but Joel Fleming, a Massachusetts lawyer, filed another.

Mr. Fleming alleged I had violated Section 8(a)(1) of the Wagner Act, which states that "it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7″—namely the rights "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

The accusation was laughable. No employee had expressed a desire to unionize. If anyone had, my joke wouldn't have stood in the way. Mr. Fleming was an interloper anyway—he had no association with the Federalist. But according to the NLRB, anyone can file such a complaint against any company.

The NLRB General Counsel pressed the case against Domenech and The Federalist, and the NLRB prevailed in front of an Administrative Law Judge. Because Domenech is publisher, his light-hearted tweet was a prohibited unfair labor practice because, according to the ALJ, it could reasonably interpreted as a threat to impose worse working conditions on any employees who sought to unionize—not that any employees who had ever even considered the possibility (or desirability) of unionizing were ever identified.

The free speech implications of this case are troubling for multiple reasons. First, this episode shows haw well-intentioned regulations can be weaponized for political purposes. The complainants had no interest in "protecting" Federalist workers—if they even know any. Their clear aim was to harass and punish ideological adversaries (a tactic Fleming has expressly endorsed in other contexts—albeit in tweets directed at Domenech's wife).

More broadly, any regulatory scheme which allows a regulatory agency to punish comments about public policy matters, particularly when there is no evidence the comments have any relation to actual or potential unionizing activity, is itself problematic.

Beyond that, there's also reason to be concerned that the NLRB is less than even-handed in its censoriousness. Threats and derisive comments made on a union Facebook page are no problem, even when made contemporaneously with picketing efforts and when other employees complained. Somehow we're supposed to believe that Domenech's lone tweet is a more serious concern? And who can forget that the NLRB once tried to claim that it would be an unfair labor practice for employers to bar workers from making abusive and threatening comments (including racial and sexual epithets) on the job. In those cases there were actual labor disputes, not here—and that's part of the problem.

Domenech and The Federalist will appeal, represented by the New Civil Liberties Alliance. Among other things, the NCLA will press the argument that the NLRB process cannot be triggered by any random twitter lurker who wants to sic federal bureaucrats on those they don't like. I hope the resolution in court will be more sensible. I wish them luck.

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  1. I’ve often wondered to what extent labor laws can be applied at all to expressive associations like newspapers.

    1. They can, because there’s actually a bright line that Blackman is eliding.

      A conservative newspaper publisher may publish whatever editorial content, and make whatever political statements, he or she wishes to. Including anti-union statements. None of that stuff would ever be an unfair labor practice.

      But nobody can threaten their employees if they unionize. Doesn’t matter if it is framed as a “joke” or not.

      The two things have nothing to do with each other, and all this publisher had to do was frame his anti-union sentiment in the form of a political argument, or make a joke whose punchline was not a threat to his workers if they unionize. It’s not difficult and there’s really no chilling effect here.

      1. Excuse me, Adler, not Blackman.

      2. So he has the ability to kidnap his employees and have them incarcerated in a salt mine? Doesn’t there have to be some rational basis for believing the threat credible before it is considered a threat?

        If I say “I am going to turn you into a pillar of salt”, with most rational persons realizing that no human has that ability (regardless of what the Lord may have done to Lot’s wife), does that constitute a “threat” as defined by the criminal statutes?

        “Your honor, he threatened to turn me into a pillar of salt.”

        In Massachusetts, it’s 123 MGL 12A, otherwise known as a “pink slip”…….

        1. So he has the ability to kidnap his employees and have them incarcerated in a salt mine?

          You guys are ignoring something. If we can take the entire statement figuratively, as a joke, why can’t we also take the wording of the threat figuratively, as a threat to do something else.

          In other words, while the proposed punishment may be ridiculous, why is it unreasonable to interpret it as saying to his employees “you better not unionize”? Seems just as reasonable as claiming the entire thing is a joke.

          As I said, there’s just a bright line rule here. Don’t threaten employees if they unionize. It’s easy enough to follow, and leaves plenty of room for alternative means of communicating one’s anti-union beliefs.

          1. As I said, there’s just a bright line rule here. Don’t threaten employees if they unionize. It’s easy enough to follow, and leaves plenty of room for alternative means of communicating one’s anti-union beliefs.

            Setting aside that “bright lines” do not save overly broad rules that implicate the first amendment, your proposed rule is not even applicable here since they weren’t unionizing.

            (If it were said during a unionization campaign, then context might cause a reasonable person to think it wasn’t a joke. But that’s obviously not the case here.)

            This is not a time place and manner restriction you are proposing; “alternative means of communicating” won’t save it. It’s a non-viewpoint-neutral rule for which there is no compelling government interest.

            1. Setting aside that “bright lines” do not save overly broad rules that implicate the first amendment

              We aren’t under strict scrutiny here. The definition of “unfair labor practice” is constitutional. It’s content neutral. It leaves open alternative means of communicating.

              This is not a time place and manner restriction you are proposing; “alternative means of communicating” won’t save it. It’s a non-viewpoint-neutral rule for which there is no compelling government interest.

              THREATENING YOUR EMPLOYEES IS NOT A “VIEWPOINT”, DAVID. Seriously, if that were the definition of a “viewpoint”, than laws against discrimnatory want ads would be viewpoint based. After all, by placing one, the advertiser is expressing the viewpoint of racism.

              Nothing in the definition of “unfair labor practice” punishes any particular viewpoint. You can express ANY viewpoint you want about unionization. You just can’t threaten your employees if they unionize. This is BOTH viewpoint and content neutral.

              1. There is no threat here, though.

              2. THREATENING YOUR EMPLOYEES IS NOT A “VIEWPOINT”, DAVID.

                It’s not a viewpoint you approve of; that doesn’t make it not a viewpoint. Would he have run afoul of the applicable law if he had tweeted: “FYI: Any federalist employees who want to unionize: sounds great! We’d welcome that.”?

                And of course he didn’t threaten anyone.

                1. But, just to be clear, I am not saying “This is unconstitutional because the rule is non-viewpoint-neutral.” I am saying that it’s subject to strict scrutiny because it is non-viewpoint-neutral.

                  Laws against joking about bombs at airports are going to satisfy strict scrutiny, so it doesn’t matter what framework you evaluate them under. (Chaplinsky, Brandenburg, true threat, whatever.)

                  Unlike some commenters here, I am not making a facial challenge to a law banning actual threats against union organizers. I am challenging it as applied; it cannot be constitutionally applied when a reasonable person would not find it to be a threat.

                  1. Seems like a process that can punish a joke can’t be considered to be narrowly tailored unless punishing jokes is the purpose. And if that’s the purpose, there’s no compelling state interest.

                  2. If you were to tell the TSA that your comb was a Star Trek Phaser — your standard black men’s comb — I’d be hard pressed to consider that a threat of any sort.

                    It’s like telling the Post Office that your package is dangerous because “it contains books and might promote literacy.” It’s clearly a joke. Now telling them it was a bomb would be a different story.

                  3. Under your reasoning, laws against jokes at airports would not satisfy strict scrutiny. You don’t LITERALLY need to prevent jokes. The TSA can, just like Federalist employees, be left to determine if it is a joke or not.

                    Except we don’t require this. We simply don’t consider either of these laws viewpoint based. And we tell people to make their jokes in other manners and at other times.

                    1. You’re describing what we do with the laws. Anti terrorist threat laws are still subject to as-applied challenges.

            2. ” your proposed rule is not even applicable here since they weren’t unionizing.”

              The people who were threatened if the start unionizing continued to decline to start unionizing? That’s quite the coincidence, don’t you think?

          2. He was on Buck Sexton’s show tonight and raised another relevant point — he doesn’t own a salt mine….

          3. Honestly, you can lecture all you like, but your dishonesty of shows, as you’ve ignored, throughout, the ‘back to.’ Not only was it not a threat, as evidenced by the ridiculous scenario of being returned to a place from which none had arrived, but to which he had no power to send them. This is a primary reason centrist libertarians, centrist liberals, and conservatives have such a dislike for progressives. The dishonesty, lack of integrity, and plain lack of character.

      3. “But nobody can threaten their employees if they unionize.”

        Sure, nobody can discriminate based on sexual orientation either. Except for the Boy Scouts, and other expressive organizations. My question is, why don’t labor laws applied to newspapers violate the organization’s right of expressive association?

        1. They might under some circumstances. The government cannot compel a newspaper to publish a particular person’s work.

      4. But nobody can threaten their employees if they unionize. Doesn’t matter if it is framed as a “joke” or not.

        I mean, of course it does matter if it’s framed as a joke or not. What an incredibly dumb thing to say. The first amendment does not allow government officials to punish people for jokes. There’s no union exception to that,

        1. Yes, I recognize that I phrased that so broadly that I’m open to attack; you’ll point out something about joking about bombs at airports or whatever. Replace “jokes” with “speech that every reasonable person would understand as a joke.”

        2. Oh, but it does. If as a joke I tell a TSA agent that I’ve put a bomb on an airplane, I will find out very quickly that I can be punished for making jokes.

        3. David:

          Let’s say a person placed a discriminatory want ad as a joke, or told a black customer they wouldn’t serve him, as a joke, or refused to show a black prospective home buyer a house, as a joke.

          Are any of those things protected by the First Amendment?

          How about making a joke about a bomb at an airport security checkpoint. Is that protected speech?

          The statute is content neutral. It leaves alternative avenues of communication open. It is fully constitutional.

          Given that, the question isn’t some abstract one about whether jokes are protected by the First Amendment. Jokes that fall within the scope of valid regulatory statutes may very well be sanctionable.

          1. Let’s say a person placed a discriminatory want ad as a joke, or told a black customer they wouldn’t serve him, as a joke, or refused to show a black prospective home buyer a house, as a joke.

            I don’t know how one would place a discriminatory want ad in a way that every reasonable person would understand it to be a joke. Maybe if it were in the Onion or something? If so, yeah, that would be protected. Otherwise, not relevant.

            Your other two examples are acts, not speech, and thus also not relevant. Unless you mean that the second actor would tell a customer that and then immediately proceed to serve him before the customer could walk away? Don’t see that to be a real world hypo, but if so, not clear what your theory of liability would be.

            The statute is content neutral. It leaves alternative avenues of communication open. It is fully constitutional.

            The statute isn’t even viewpoint neutral, let alone content neutral.

            1. every reasonable person would understand it to be a joke

              this is nothing but your say-so. I read the Federalist’s publisher’s statement as a threat, framed as a joke. And I am a reasonable person.

              Unless you mean that the second actor would tell a customer that and then immediately proceed to serve him before the customer could walk away?

              How about if the customer walks away because he doesn’t get the “joke”?

              And see above about your BS “viewpoint neutral” argument. “Wanting to prevent my employees from unionizing by threatening them” is not a viewpoint for purposes of constitutional analysis.

              1. Also, how is making a joke at an airport security checkpoint “not speech”? It obviously is, and it is equally obvious that a rule prohibiting jokes at the checkpoint is viewpoint neutral, content neutral, and constitutional.

              2. “And I am a reasonable person.”

                Yea, but that’s just your say-so.

              3. “Unless you mean that the second actor would tell a customer that and then immediately proceed to serve him before the customer could walk away?

                How about if the customer walks away because he doesn’t get the “joke”?”

                Say a black man walks into a restaurant full of black customers and asks the black owner, “Do you serve black people here?”

                The owner chuckles and says, “Sorry, no. Only white people in this restaurant.” Is that a violation of public accommodations law?

                1. Say a black man walks into a restaurant full of black customers and asks the black owner, “Do you serve black people here?”

                  It’s a cookbook!

                  1. “I’m sorry, we don’t serve Negros here.”

                    “Good, ’cause I don’t eat ’em either. Now get me my coffee and hot dog!”

                2. “The owner chuckles and says, “Sorry, no. Only white people in this restaurant.” Is that a violation of public accommodations law?”

                  Why wouldn’t it be?

                  Seriously, I think there’s a confusion here between two points:

                  1. Humor is generally protected speech.

                  2. No content neutral regulation with a non-speech objective may restrict humor in a specific situation.

                  (1) is true. See Hustler Magazine v. Falwell and a ton of other cases.

                  But (2) isn’t. Indeed, when humor is delivered deadpan, you can very easily get into situations where it results in a legal consequence. I mentioned jokes at the TSA checkpoint, and “jokingly” engaging in race or gender discrimination. But how about a guy who points a toy gun at a cop, thinking it’s funny. He gets shot and killed. Think his survivors are going to recover for wrongful death against the cop?

                  Sexual harassment sometimes takes the form of “jokes” too.

                  If you consent to a physical intrusion, you probably can’t escape the consent by saying it is a joke too. “Come on in”, you say to someone who you don’t want to come in. Is that person a trespasser? I would highly doubt it.

                  Just because humor is protected speech doesn’t mean “it was a joke” is a defense to every statute that legitimately and constituionally attaches consequences to verbal acts.

                  1. I think one problem is that you don’t understand the legal concept of “content neutral.” An example of a rule that would be content neutral would be one that forbids an employer from communicating with employees during a unionizing campaign. But a rule that forbids employers from saying anti-union things to employees is not only not content neutral, but not even viewpoint neutral.

                    But obviously merely asserting “it was a joke” is not a defense to every — or perhaps not any — statute that touches upon speech. The issue is (depending on the context we’re discussing — see, e.g., Elonis) either whether the speaker actually intended it to be a joke or whether the speaker was reckless about whether it would be understood to be a joke or whether a reasonable observer would interpret it to be a joke.

                    But except in the airport bomb context, I can’t imagine any situation in which the issue of whether it was a joke was irrelevant. (And yes, such a rule would likely pass strict scrutiny in that context.)

                    1. ” except in the airport bomb context, I can’t imagine any situation in which the issue of whether it was a joke was irrelevant. (And yes, such a rule would likely pass strict scrutiny in that context.)”

                      “Come on children, if you get in my van, I’ll give you some candy” when all you have are raisins. is a joke. But if the cop pulls you over with the missing children in your van, you’re going to see the inside of the pokey.

                    2. @James,

                      That’s because it’s illegal to put someone else’s children in your van. Someone who merely put “FREE CANDY” on the side of their shady looking van isn’t going to be arrested for attempted child kidnapping. Because just saying FREE CANDY is protected speech.

              4. Wait, you are a “reasonable person” and you believe that this publisher was threatening to send his employees to the salt mines, should they attempt to unionize? Do “salt mines” even exist any more?
                Back in the day, being sent to the salt mines was the equivalent of a death sentence. As a “reasonable person” do you believe that this publisher was, generically, threatening his employees with death?
                There are a very many occasions that a comment is so utterly hyperbolic that no “reasonable person” could possibly believe that the comment is intended literally. Such is the case here.

                1. “send ’em to the salt mines” is filler for “inflict serious consequences”, regardless of the proximity to actual salt and/or mines.

                  “give me all your money or I’ll shoot you” is a joke, because I currently do not have any ammunition for any weapon more dangerous than a Nerf dart gun. It’s still possible that those exact words could get me wrung up on an attempted robbery charge.

                  1. It’s not a “joke” because the person being threatened doesn’t know that the person making the threat is only in possession of a Nerf dart gun (or their finger in a coat, for that matter). No person has asserted–and no reasonable person could believe–that Ben Domenech has salt mines and the power to send employees there. The salient feature of this joke is that the “threat” is intentionally preposterous. (That doesn’t get around the problem that it wasn’t actually made to anybody threatening to unionize.)

        4. “The first amendment does not allow government officials to punish people for jokes”

          The first amendment does (somehow) allow government officials to punish people for photographing naked children, or making terroristic threats, or engaging in unfair labor practices.

      5. But nobody can threaten their employees if they unionize. Doesn’t matter if it is framed as a “joke” or not.

        Try applying that reasoning to threats against the President that are obviously jokes.

      6. Actually, they can. Because of the First Amendment. Read it.

        1. There have been several prior instances where “Congress shall make no law…” has been interpreted to mean”OK, maybe Congress can make SOME laws…”

  2. Whether that’s a joke seems very much a question of fact.

    I follow a bunch of legal types on twitter, and even amongst the very pro-speech folks (e.g. Popehat, Marty Lederman, Jacob T. Levy) the thinking was that this was likely enough to be said in seriousness that it at the very least was dumb and created legal exposure.

    1. Twitter is the single most aptly named social media service. The vast majority of their users are twits.

      1. I’m not quoting nobodies, MS.

        1. “I’m not quoting nobodies, MS.”

          They’re still twits on twitter. Many people have great articles, podcasts, what have you, but you look at their twitter feed and it makes you want to slap their kindergarten teacher.

          1. Group ad hominem is pretty lame stuff.

          2. “Group ad hominem is pretty lame stuff.”

            Get it right. I’m making an ad forum attack.

            1. OK, that was worth the journey. Nice one.

          3. Popehat has certainly turned himself into a nobody. Like many before him he has taking a liking to comment far outside his expertise (criminal law) and revealed himself as a dunce.

            1. You mean like Adler taking on labor law?

              Like any individual these days, I google for alternate takes, but Popehat’s not been egregious in anything I’ve seen.

              1. Adler is a dunce generally, yes.

              2. “Popehat’s not been egregious in anything I’ve seen.”

                Mr. White has largely refrained from posting to his own forum in recent months. So, no he’s not been egregious (or anything else) is my interpretation.

                1. He does still occasionally write for the Atlantic and is on a half hour podcast once a week. He has said and written many negative things about Donald Trump, so I guess that explains the animus from commenters here.

        2. Huh. So fame and social media follow *does* has some sway in if a person is an approved Sarcastro spokesman (TM) for a topic.

    2. You must be a lot of fun at parties.

      1. I am – I get all my politics out here and am free to discuss 80s cartoons and board games to my heart’s content.

        Having seen the trajectory of this story, Prof. Adler’s narrative of partisan discrimination seems quite dubious to me on a number of fronts, the joke bit being the first.

        The double standard Prof. Adler posits is based on anecdotes from less high profile Facebook posts. And comes after he’s already reached his conclusion: “Their clear aim was to harass and punish ideological adversaries.”

        1. “The double standard Prof. Adler posits is based on anecdotes from less high profile Facebook posts. And comes after he’s already reached his conclusion: “Their clear aim was to harass and punish ideological adversaries.”

          I don’t believe that even you believe anything you say.

          1. Engage if you have an issue.

            I’m not saying NLRB didn’t act wrongly, I’m saying this post provides no evidence that it did.
            And I’m not alone in that opinion, even on this comment thread.

        2. As usual, you are not the exemplar for neutrality nor a substitute for a reasonable person. You are consistent in your bias and antagonism regardless of the subject matter in the original article. You lack the perspective or experiential history to be a neutral arbiter of reasonableness for this article. You have the right to freely comment but don’t delude yourself into thinking you do not stretch facts, law, and reason beyond credulity to reach your conclusions.

          1. Thanks for your personal attacks. I’m aware I’m biased, but just declaring so and stamping your foot doesn’t really get at any of the issues.

            I found Prof. Adler’s analysis quite uninspiring. On both sides of the issue, he’s been well outdistanced by the VC comentariat on this one. Do you disagree?

            Experiential history? That’s a weird appeal to authority. Sounds like some of the sillier folks on the left arguing white’s can’t expound on race relations.

    3. It is very clear and obvious that its a joke.

      And the people responding in the twitter thread of ‘labor law violation’ don’t really believe it either even if they say they do. What they do really believe is that they don’t like the opinions espoused by Federalist and so would cheer on anything that might lead to its closure.

      1. bingo

        1. If conservatives are known for anything it is their humor.

          I mean, Greg Gutfeld . . . Jim Gaffigan . . . Jeff Foxworthy . . . Greg Gutfeld . . .

          (Must be sad to be on the outside looking in at all of the best music, comedy, television shows, movies . . . enough to make you humorless?)

        2. The ultimate irony is that American salt mines probably pay better than the Federalist does. (Operating heavy equipment usually pays better than writing.)

          Much as the government recognizes atheism as a religion, it’s a pity that non-union can’t be recognized as a union.

          1. Here is a photo essay of a large modern salt mine.
            http://content.time.com/time/photogallery/0,29307,2001184,00.html

            Notably not present: workers in shackles, workers plying pick-axes and shovels, or workers being whipped for not making their quota.

            1. “Notably not present: workers in shackles, workers plying pick-axes and shovels, or workers being whipped for not making their quota.”

              Must be a union shop.

      2. It is very clear and obvious that its a joke.

        The problem is, there isn’t an exception to the unfair labor practice laws for jokingly threatening to kill your employees if they unionize. Nor, really, should there be.

        1. “Unfair labor practice laws” should be repealed. It isn’t the government’s job to make things “fair”.

          1. ” It isn’t the government’s job to make things “fair”.”

            This will come as a surprise to the federal judiciary.

        2. “Nor, really, should there be.”

          “These figures indicate that salt miners in 2008 could earn anywhere from $52,884 to $59,280 per year” https://careertrend.com/the-salary-of-a-salt-miner-13660334.html

          Hardly a death sentence. Fairly well paid, likely greater than many writers at a conservative web site.

        3. Threatening to kill anyone is a crime in most states.

          1. But it has to be a true threat. Obvious jokes aren’t illegal, however much Preet Bharara might want them to be.

        4. The problem is, there isn’t an exception to the unfair labor practice laws for jokingly threatening to kill your employees if they unionize. Nor, really, should there be.

          Weird. I knew of the “true threat” exception to the first amendment. I didn’t know of the “obviously joking non-threat” exception.

          As you’ve done in the past, you interpret the 1A backwards. The 1A is the rule. Restrictions on speech are the exception. The issue, therefore, is not whether there is a 1A exception to the unfair labor practice laws, but whether there is an unfair labor practice exception to the 1A.

          1. ” I didn’t know of the “obviously joking non-threat” exception.”

            Ask your TSA screener about it.

            ” The issue, therefore, is not whether there is a 1A exception to the unfair labor practice laws, but whether there is an unfair labor practice exception to the 1A.”

            Fair enough. The argument that there isn’t seems to be “Geez, guys it was a JOKE”
            The courts have been remarkably vague in explaining why some things are not covered by 1A. There was, at one point, a fairly strong explanation for why pornographic images of children weren’t protected… there was, at the time, no way to make such images without harming actual children. Then Photoshop came along, so the statute was extended to actual OR SIMULATED pornographic images of children.

      3. “It is very clear and obvious that its a joke.”

        Whether it was a joke or made in all seriousness should not be relevant. The regulation in question is a regulation of a labor law statute.
        A statute, much less a regulation should not override a constitional provision – in this case 1A

        1. Dilan Esper is dealing with that issue in his posts.

          1. Dilan has not provided constitutionally valid legal theory as to why a statute should override the constitution. Certainly not one that would apply in this situation.

            1. The statute is constitutional because it is content-neutral, serves a substantial interest, and leaves open alternative means of communication.

              That legal enough for you?

              There’s no First Amendment issue here at all. The only issue is whether this stupid “joke” falls outside the scope of an “unfair labor practice”. I don’t see why it would.

              1. I think it would surprise most people that telling a joke on twitter and then facing legal censure by the government for that speech presents “no First Amendment issue”.

              2. “The statute is constitutional because it is content-neutral, serves a substantial interest, and leaves open alternative means of communication.”

                Funny, I can’t find anything in the Constitution that talks about whether or not something is ” content-neutral, serves a substantial interest, and leaves open alternative means of communication” as an exception to the First Amendment.

                1. How is it content neutral when its the content that determines the violation????

                  1. It isn’t. It’s the fact that it is a threat; the words used to make the threat are irrelevant. Indeed, even a wordless threat could qualify.

                    1. You seem to have a really… erm, interesting idea of what the term “content neutral” means. Have you tried any actual case law, or are you just not into that?

              3. it is content-neutral

                You cannot be saying this with a straight face in the midst of a discussion about whether it’s constitutional to prohibit a specific, narrowly-defined category of speech.

                Between this and Sarc’s “extraordinary circumstances” of 50 people in a state dying in a month’s time, I feel like I must have recently woken up in an alternate universe where words just don’t mean anything anymore.

                1. 50 people in Maine are dead so far. If you don’t think there’s an emergency there based on looking around America you’re like some kind of myopic goldfish-ostrich hybrid.

                  1. If you don’t think there’s an emergency there

                    You keep on moving those goalposts. I’m very comfortable about what I said in response to your original characterization, which bears no resemblance to the new, watered-down characterization you’re now trying to pivot to.

                    1. These are extraordinary circumstances. Pointing to the current low number of deaths to argue that they are not, and we should change no policies right now, is a myopic goldfish-ostrich hybrid situation.

                      If this is different from the argument you made yesterday, I’d be interested to hear how.

                    2. These are extraordinary circumstances

                      Ah, now you’ve upped your original ante. No, they’re not. Words like “extraordinary” and “unprecedented” have been hopelessly hyperinflated over the past several years. I’m personally in favor of dialing back the rhetorical flourishes and preserving words like “extraordinary” for the rare circumstances that justify them, rather than now having to invent new ones to denote something that’s truly “highly exceptional; remarkable”. You apparently have a different view. Probably not something we’re going to resolve here.

                      Pointing to the current low number of deaths to argue that they are not

                      To say this with a straight face, you must be squeezing your eyes shut to the bigger picture of the trajectory. The current run rate over the past few days has been about 16 cases a day and one death every other day. At this point, you have to have a very special worldview to believe that at this point we’re suddenly going to click back into the originally promised bloodbath scenario.

              4. The statute is constitutional because it is content-neutral, serves a substantial interest, and leaves open alternative means of communication.

                A) It is not content neutral – but you already knew that

                B) It remains a regulation of a statute that overrides a constitutional provision. You did not provide an explanation that overcomes that hurdle.

                1. Of course it is content neutral. It prohibits unfair labor practices whether or not they use words and without regard to the words used.

                  It’s no more content based than antidiscrimination law is content based, just because words are sometimes used to effectuate discrimination.

              5. OK, if he had instead said “if you DON’T form a union, I will ship you to a salt mine.”

          2. “Dilan Esper is dealing with that issue in his posts.”

            Yeah, but you have it right and he doesn’t.

            Whether it’s a joke or a threat is a question of fact. If it can be shown that is was intended as a joke and no reasonable person would take it as a threat, then it’s not a threat.

            1. If it’s not a joke, the law is clear.

              If it is a joke, I don’t know what the law says. It looks like…no one really does?

              1. The ALJ op says that it has to be able to reasonably interpreted by employees as a threat.

                1. Actually, it doesn’t. It says that how employees interpret it is irrelevant. It ostensibly uses an objective standard — how a reasonable person would interpret it. But employs the tried-and-true, “I think I’m reasonable, so how I interpret it is how a reasonable person would.”

                  1. In fairness, ALJs aren’t real judges.

            2. The first piece of evidence that it was intended as a joke is the statement itself, and its literal meaning.

            3. ” If it can be shown that is was intended as a joke and no reasonable person would take it as a threat, then it’s not a threat.”

              IF is a pretty powerful word. Out of curiousity, what evidence is sufficient to establish the first prong. Is the testimony of the person who wrote it good enough.

              The lesson seems to be “don’t phrase your jokes in the form of threats”

        2. From the website of New Civil Liberties Alliance: “Although Americans still enjoy the shell of their Republic, there has developed within it a very different sort of government—a type, in fact, that the Constitution was designed to prevent.”

          1. The sounds of bitter clinging . . .

        3. “A statute, much less a regulation should not override a constitional provision – in this case 1A”

          Your logic appears flawed. The 1A says “Congress shall make no law…” not “There shall never be any valid law…” The amendment is written as a prohibition on Congress. Executive agencies are not Congress. The same thing arises when considering what, exactly, courts may order. So a court can issue a gag order without offending the letter of the 1A.

    4. The fact that he works for a different organization and has zero ability to do anything to the workers at Vox ought to clue you in.

      And there seems to be a statutory deficiency here. The statute says:
      “”it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7”

      He is not their employer — he does not even work for their employer. He has zero ability to interfere with anything of theirs.

      If this applies to him, then it applies to anyone at all who makes an anti-union statement. The notion that such is consistent with either the statute or the First Amendment is absurd.

      1. SarcasmHat
        @Popehat
        Apr 23
        I know just barely enough labor law to have thought at the time that this was characteristically dumb. Now it’s going to cost him a pretty ringgit

        1. The fact that litigants and administrative agencies take ridiculous positions, and inflict costs on others is a fact of life. But that does not alter whether the underlying issue is ridiculous or not. Again, if this is a violation, then there is no limit on what anyone may say about a labor dispute.

          If I read that workers at Amazon are striking, and I post “they should be fired,” the notion that the government can fine me for doing so, when I do not work for Amazon and have zero authority over Amazon workers, is both absurd and inconsistent with the fundamentals of free speech.

          1. BL
            You accidentally gave the wrong analogy. I think the correct one is: (Assume you are the plant manager for X Construction). “The workers at Amazon are striking. FYI, all my workers at X Construction; the first one of you who tries to unionize is gonna be fired.”

            Is that a joke? Maybe. Is it SO OBVIOUSLY a joke that any reasonable person who recognize it as such? Clearly not–that would be an idiotic argument. It certainly could be an actual threat, or a veiled threat. The fact that the actual guy used “salt mines” gives weight to the “I was joking.” argument. But it’s hardly conclusive. Lots of people (esp if advised by counsel beforehand) would know to couch their threats with attempts at humor.

            It was a dick move to send the tweet, and I have zero sympathy for the guy for the consequences. (I’ll note that I did not see any follow-up tweets along the lines of, “Guys, my tweet yesterday was obviously a joke. I strongly support the legal right for people to unionize, even though I think that unions are economically dumb in general and hurt workers more than they help workers.”)

            1. Even if its not a joke, its a pretty clear 1A violation to punish it without action.

              Indeed, all this case really is doing is elucidating the deep seeded 1A problems that exist in our unionization laws.

            2. “The workers at Amazon are striking. FYI, all my workers at X Construction; the first one of you who tries to unionize is gonna be fired.”

              That’s a credible threat — you have the ability to fire them.

              Sending them to a salt mine (or the Planet Vulcan) is not — you lack the ability to do that. Anyone of average intelligence knows that you lack the ability to do that.

              Do you not see the difference?

              1. All I see is magic words.

              2. As I put in my OP, I clearly factored in the “to the salt mines” aspect. It is absolutely possible that he was joking. It is absolutely possible that he was not joking…he was issuing a veiled threat. It is absolutely possible that he was joking AND that readers took it incorrectly as a veiled threat. I have enough integrity to acknowledge these possibilities. What does it say about you that you are incapable of this? (If he had written an “impossibility” like, “Anyone who tries to unionize will be sent back to Planet Vulcun.”, the likelihood of it being a joke would be higher. Salt Mines was a punishment for Russian dissidents and prisoners (if I recall correctly) and seems to be a possible veiled threat that pretty much everyone else on this planet–other than you–can spot. “Anyone on my staff who wants a union will find themselves working at McDonalds next week.” That’s a joke. And it’s also a threat. Everyone who reads this knows that I have no authority to make you work at McD. And if I did have the authority, I could not force you to start working there next week. But the clear implication is, “Those who are pro-union will not be working for me.”

                Fortunately, God gave us all brains, and the ability to incorporate context into our English reading, and the ability to then make judgments about what people do, say, write, etc..

                1. You pointed out something extremely important. The McDonald’s example is very illustrative. The “threat” doesn’t have to necessarily be something the speaker can seriously carry out, to be perceived as a threat.

                2. At this point in time, being sent to the salt mines is a threat exactly as unrealistic as being sent to the Planet Vulcan. Or as realistic, if you prefer. In the past, the tsar or commissars could send someone the the salt mines, but they don’t exist in America (and anyway no one…no one…believes that this publisher has the actual power to send anyone there, even if “there” existed.) So, the threat is not in the realm of the possible, in the here and now. Perhaps in the future we will discover Vulcan and send people there, but again, it’s not in the here and now.

              3. Sending them to a salt mine (or the Planet Vulcan) is not — you lack the ability to do that. Anyone of average intelligence knows that you lack the ability to do that.

                This.

                Even less is it a credible threat to “threaten” to send the workers “back” to the salt mine they were never in in the first place.

            3. “It certainly could be an actual threat, or a veiled threat. The fact that the actual guy used “salt mines” gives weight to the “I was joking.” argument. But it’s hardly conclusive. Lots of people (esp if advised by counsel beforehand) would know to couch their threats with attempts at humor.”

              Right, because it’s legally relevant if what was said was a joke, or not.

              1. Absolutely. It’s a question of fact. And the specific wording, the tone of voice (not applicable to tweets, obviously), the use of emoticons, etc…all would be relevant to the finder of fact.

                1. In this instance, there’s no fact issue to be resolved. Do you think whether your response to my comment presents a fact issue as to whether it’s a threat?

      2. BL — Also, *how* is he going to send anyone to a salt mine?
        That presumes power he does not have…

        1. Interpreted literally, it’s ridiculous and obviously not a true threat. Interpreted figuratively, it’s a threat to transfer someone to a worse job within the company. That is within the power of the publisher, so it might be a true threat.

          The other issue is that NRLB enforcement of speech and other restrictions is anything but even-handed. A joking threat by a company official is severely punished. Threats by union people to key a “scab’s” car are never punished – and actually keying the car, or an assault and battery putting the scab in the hospital, might trigger a criminal investigation by the local police but will never draw an NLRB punishment against the union. If there _is_ a unionization campaign, company officials cannot publish the bloated salaries of the union officials (paid for by deductions from the workers’ pay checks if the union gets in), but the union can say just about anything.

      3. He’s accused of threatening his own employees, not Vox’s.

      4. “If this applies to him, then it applies to anyone at all who makes an anti-union statement.”

        Yeah, if the anti-union statement is phrased as a threat.
        Coming from the other direction, joking about scouting for walls to use for management’s golden parachutes once the glorious Revolution starts would also count, even if it included several nice photos of un-bullet-pocked walls.

    5. “Popehat, Marty Lederman, Jacob T. Levy”

      All libs. Popehat in particular has a hatred of The Federalist.

      1. Your definition of a lib is…highly dubious.

        1. Sure. They are all noted conservatives.

          1. Not certain of this, but I used to read popehat and got the impression he’s a libertarian, or close to it.

            1. Libertarian are just liberals who don’t like taxes. No other functional difference.

              1. You’re new here, aren’t you?

              2. Funny, my liberal friends tell me they’re all conservatives except for supporting abortion and gay marriage.

              3. Bob apparently doesn’t like the libertarian overwhelming support for gun rights. Another well-known liberal cause, I guess. Bob, how many moons are there, back on your home planet?

              4. Sounds like you don’t buy the “often libertarian” claim of certain clingers . . .

              5. “Libertarian are just liberals who don’t like taxes.”

                Nah. Libertarians are conservatives who want to smoke marijuana.

          2. By the way, since when do we need to show a conservative agrees with a point for it to be correct? That sort of intellectual stance assumes that liberals are never right about the Constitution unless they agree with conservatives.

            1. If you only cite your tribe, it reduces the effect of the argument.

              “assumes that liberals are never right about the Constitution unless they agree with conservatives.”

              Duh

              1. “f you only cite your tribe, it reduces the effect of the argument.”

                If you insist on belonging to a tribe, it reduces the effect of the argument.

      2. I don’t hate the Federalist. Indeed, I think its publisher should be able to engage in whatever amount of anti-union advocacy he wishes to. There are strong First Amendment protections in this area.

        This is sort of like placing a discrminatory advertisement. You can advocate to your heart’s content against Civil Rights laws, argue that you should have First Amendment protections for advertisements, etc. All of that is fine.

        But if you place a want ad saying that only whites need apply, there isn’t a defense to an EEOC proceeding that “it was a joke”.

        1. This is sort of like placing a discrminatory advertisement.

          No it isn’t, for several reasons.

          1. What reasons? The rules against placing discriminatory advertisements are not subject to strict scrutiny because they are content neutral and leave open alternative avenues for communications. Unfair labor practices fall within the same doctrine.

            You guys all want to throw out the Wagner Act because you hate unions. But the fact of the matter is that prohibiting employers for threatening workers doesn’t impinge on any First Amendment interests.

            1. “The rules against placing discriminatory advertisements are not subject to strict scrutiny because they are content neutral and leave open alternative avenues for communications.”

              Dilan, seriously, these laws violate 1A but we pretend they don’t because of the racial history they were trying to remedy.

            2. “The rules against placing discriminatory advertisements are not subject to strict scrutiny because they are content neutral and leave open alternative avenues for communications.”

              How can they be content neutral? Whether they are discriminatory, or advertisements, depends on the content.

              1. Because “discriminatory” isn’t a form of speech. It’s a form of act, with speech being one form of the act.

                So it doesn’t matter what words are used or even if words are used at all, as long as the discrimination (or the threat) occurs. The statute punishes conduct and not speech.

        2. The Equal Employment Opportunity Commission should be disbanded. It isn’t the government’s job to ensure “equal opportunity” in private employment.

          1. Oh well.

            If that’s what Ed Grinberg thinks it must be so.

          2. ” It isn’t the government’s job to ensure ‘equal opportunity’ in private employment.”

            Says who? It sounds like that is precisely the job of the EEOC, if it’s name is any indication.

          3. ” It isn’t the government’s job to ensure ‘equal opportunity’ in private employment.”

            I think I read somewhere that ensuring domestic tranquillity and promoting the general welfare are why we have a government.

        3. I don’t hate the Federalist. Indeed, I think its publisher should be able to engage in whatever amount of anti-union advocacy he wishes to. There are strong First Amendment protections in this area.

          I do hate the Federalist. I think every single person who works for them in any capacity is a garbage person.

          But, no, this is not like placing a discriminatory advertisement, which would not be reasonably understood as a joke.

          1. “But, no, this is not like placing a discriminatory advertisement, which would not be reasonably understood as a joke.”

            Depends on the phrasing chosen by the author of it, I would say. For example an ad for a gender studies professor and requiring a male person’s genitalia be attached to the new hire, or hiring a “quota associate” specifically to meet diversity requirements, no other qualifications required.

    6. “this was likely enough to be said in seriousness that it at the very least was dumb and created legal exposure.”

      Or was it an editor attempting to frame an issue for his staff to write about? Do working conditions at Vox Media resemble those at a Soviet Gulag — and I can see conservatives answering that in multiple dimensions ranging from how the spoilt leftists at VOX aren’t freezing to death to how leftist managers tend to be quite fascist.

      1. I think it’s pretty clear that the answer to your question is, “No.”

        No sane editor would frame the issue in this way. Instead, he’d write a memo to his staff, asking them to look at the issue of unionization, etc..

        Similarly, if he had tweeted with a brag about his past history of sexual assaulting female employees (“When you’re the boss, you can grab women by the pussy and get away with it.”), he can TRY to later claim that he tweeted only to frame the sober and serious issue of workplace harassment, or of sexual violence against women, etc . . . but no one will believe such a self-serving, after-the-fact, claim. (Well, perhaps Dr Ed will accept the claim. But not many others will.)

    7. Pop what’s comments today (including on this very post) would suggest that, if he ever felt that way, he has changed his mind,

      1. Just did a quick scroll through – saw him retweet this thread, but beyond that didn’t see much.

        But sure, maybe he changed his mind. Good on him to not let consistency hobgoblin him up.
        But that does not change my original thesis – that the ‘clearly a joke and thus harmless’ take is not a slam dunk, and was in fact disputed contemporaneously by people without much of a dog in the fight.

        1. I scrolled down and Popehat does seem to be retweeting someone with a similar take to Prof. Adler’s, though also linking to the same WSJ article.

          He has some more nuance in the dialogue in the click-through:

          MilestoneAchievingHat
          @Popehat
          ·
          4h
          Replying to
          @mmasnick
          I think the lack of standing requirement makes it particularly vulnerable to abuse.
          It was, however, a remarkably stupid thing for the head of an organization to do.

    8. Really? After many of the comments made by Popehat on Twitter on several issues? You still claim it was serious enough to allow an ideological opponent, with no connection to the organization at issue, to file a false statement that would be laughed out of a court?

      1. Begging the question.

    9. They are all dumb, not Ben.

  3. So much fuss defending the right of management to threaten punishment for unionization efforts. Guess who’ll be first on the wall when the glorious revolution comes…

    1. Disarmed middle management?

    2. …this is either a not very funny joke or a mirror of JtD’s lameness.

      1. Why can’t it be both?

    3. The statement was too hyperbolic to be construed as an actual threat by any sane person. And of course, no actual employee perceived it as a threat…the complaint was brought by an outsider.

      1. ” And of course, no actual employee perceived it as a threat.”

        This is an assertion without evidence, at best it’s accurate to say “no actual employee has come forward to claim i was perceived as a threat.”

  4. Another sterling example of why only victims should be allowed to prosecute.

  5. So the Left has basically abandoned any free speech values it once used to have. Now that it runs the power structures that can censor that is their new MO. Got it. Thanks for the warning. Don’t be surprised when this doesn’t end well for you guys.

    1. There is no such thing as a monolithic “the Left”. Individual leftists are all over the map on free speech. For that matter, so are conservatives. And I haven’t noticed, as between liberals and conservatives, that either one is worse than the other on free speech issues.

    2. I wouldn’t be so eager to take Ben Domenech’s account as 100% accurate.

      His record for veracity sucks. Of course that doesn’t trouble the various right-wing organizations that he works for. Maybe a lack of respect for the truth is even a qualification for those jobs.

      1. I wouldn’t take bernard11’s account of Ben Domenech as 100% accurate.
        His record for veracity sucks. Of course that doesn’t trouble the various left-wing organizations that he espouses. Maybe a lack of respect for the truth is even a qualification for his comments.

        1. Prof. Adler doesn’t appear to have done much more than read this one-sided account.

          1. More than enough of you to purport to tell us how only the flip side is truthful. Perhaps you’d like to start your own blog. But you’d be lucky to get any commenters, let alone Volokh Conspirator quality.

            Individualism is better than Collectivism because Individualism can simulate Collectivism with contracts; but Collectivism can’t even tolerate Individualism, let alone simulate it. It appears to be the same with blogs: any Collectivist blog started by you could not tolerate any Individualist comments, but this Individualist blog tolerates Collectivist comments just fine.

            Funny how that works.

            1. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf, like the peace of God, your last post passes all understanding.

              1. It says “Nyaah, nyaah. OUR side is better than YOURS, so there!”

            2. “you’d be lucky to get any commenters, let alone Volokh Conspirator quality.”

              Imagine thinking the comments on this site are good. Most are indistinguishable from any boomer MAGA facebook page.

              1. Imagine thinking the comments on this site are good

                Always liked this construction. You a Something Awful forums poster?

                1. To be fair; if he’s a long-time reader of the VC, it is possible that he is comparing the comments here in 2020 to the quality of posts 10 or 15 years ago. I’ve been reading long enough to have seen the VC at several different sites. And, the quality of the posts has changed quite a bit, IMO. (It’s possible that lots of posters here would agree–except that they would say that the quality has vastly improved during the Reason.com epoch.) 🙂

                  But I do agree that, on its face, the comment was funny…along the lines of, “Everyone here but me is an idiot.” I’m gonna cut CM a break here, though, and assume the former explanation.

                  1. I wasn’t dinging him – I legit like the ‘imagine…’ construction. It’s pithy and evocative.

                    I like Something Awful, sort of a mirror of this comentariat but on the other side. Makes for some interesting pop-sociology to compare.

                    1. Or you could compare to YouTube comments, for proof that civilization is doomed.

              2. I said Conspirator, not commenter. Please pay attention lest your confusion manifest itself for all to see.

                1. A conspiracy can be held to account for the actions of any of its members, no matter how stupid. That’s one of the risks of entering a conspiracy.

          2. Prof. Adler doesn’t appear to have done much more than read this one-sided account.

            Again, the NLRB’s decision is linked right in Prof. Adler’s piece.

            1. Unlike bernard, I’m not objecting to the facts. I’m objecting to the quite thin and telepathic analysis.

              Separately, as the comments outdistanced the OP pretty quickly, I’m not sold that threats of retaliation are a protected viewpoint.

              1. Separately, as the comments outdistanced the OP pretty quickly, I’m not sold that threats of retaliation are a protected viewpoint.

                As I made clear in a comment here: I am not joining those people who claim that the concept of ULP is unconstitutional. I have many problems with the NLRB and its ridiculous interpretations of §8, but I do not think that a law banning actual threats of retaliation, as opposed to jokes, would be unconstitutional.

                1. OK – so we’re back to a question of fact about whether this is an actual threat. Thanks for the clarification.

                  I can get on board with that – looks like from your other posts that’s a reasonable person test?

                  1. In this case, it ought to be a reasonable Federalist employee test. If none of them would have thought they were being threatened, then it’s ridiculous for outsiders to allege that they were.

              2. I’m not objecting to the facts.

                I’m objecting to taking Domenech’s account as accurate until it’s verified.

        2. Your comment doesn’t even make sense as an insult.

          “Left-wing organizations” aren’t paying me to edit or write for their publications, so they can’t refuse to hire me, even if I were as dishonest as Domenech, which would be quite a feat. Nor do comments have qualifications.

          You should check out his “career” on Wikipedia, which you will no doubt denounce as fake news or some other BS.

      2. Which part of Domenech’s account do you think might be inaccurate? Do you think his tweet said something different? That someone else made the complaint?

        1. I have no idea if it’s accurate or not.

          What I am saying is that, given Domenech’s history, I would check anything he says carefully before repeating it symapthetically, as Adler does here.

          (I’m also suggesting that the willingness of many on the rifght to give this guy credence, and a platform, does not speak well of their regard for journalistic integrity.)

          1. So based on this made up narrative of his “history” you won’t believe facts?

            Well Then.

            1. Patrick, if you want to be taken seriously; don’t deny his long history of plagiarism. (When he has admitted it and you still claim it’s made-up, it makes you look dopey.) It is fine to say that he was intellectually dishonest in the past, but this story is true, that’s a perfectly cromulent argument to make. And won’t get you laughed at by liberals and conservatives alike.

        2. “Which part of Domenech’s account do you think might be inaccurate?”
          Based on his history, I don’t know that I believe anything at all starting with the self-identification.

      3. I wouldn’t be so eager to take Ben Domenech’s account as 100% accurate.

        Not sure what this means. It’s all been a matter of public record since the beginning; there’s no other side to the story that could exist.

        Moreover, even if there could theoretically be another side to the story, there isn’t one here. We know that because the NLRB decision is published (and linked by Adler!) and there are no other facts.

    3. You planning on winning the culture war, Jimmy?

      Open wider, clinger.

      1. Stuff like this will ignite the culture war you seem to want to fight.

        1. And Kirk is going to wonder why his doorbell is ringing when the culture wars finally blow up.

          1. Maybe not with the threats, dude.

            1. Why do you always say these are threats? All I said was someone was probably going to ring his doorbell. Calm down.

              1. Ring his doorbell when the culture war kicks off? Who do you think you’re fooling?

                This playing coy after a death threat is a pattern for you. Not the sign of someone secure in his ideology.

                1. “death threat”

                  Hyperbole from you, don’t you think.

                  A prediction is not a threat.

                  1. A prediction is not a threat.

                    Sure, OK. That’s the ticket.

                    1. Impotent rants and bitter muttering from the vanquished clingers is just part of the soundtrack of the culture war.

                      I like the ineffectual bluster of right-wingers. It sounds like . . . victory.

                2. You really need a “jump to conclusions” mat to make that logical link from “ring doorbell” to “death threat”, don’t you? But inflating rhetoric to fit into your narrative is what you need to do to bolster your narrow ideology. So stick with it.

                  1. Do you take me for a fool, Jimmy? Why would someone ring someone’s doorbell in a time of civil unrest? Not to deliver chocolates!

                    You’re a coward.

                    1. “Do you take me for a fool”

                      Never ask a question where you won’t like the reply.

                    2. “Do you take me for a fool, Jimmy?”

                      A fool believes all are as foolish as he.
                      There’s plenty of foolishness to go around. Everybody’s got at least some.

                    3. You seem to have lots of dark thoughts on what will happen if someone knocks on your door. Projecting a little bit maybe?

                      Evangelists knock on doors all the time to see if an occupant may want to take Jesus Christ as their savior. Perhaps that is the reason why Kirk’s doorbell is going to get rung.

                    4. I know gasslighting when I see it.

                      Get stuffed.

                    5. Even Bob’s ‘A prediction is not a threat’ attempted defense takes your post for what it was.

                  2. ” inflating rhetoric to fit into your narrative is what you need to do to bolster your narrow ideology”

                    Such piquant self-analysis. I wouldn’t have thought you were self-aware enough for this.

                    1. All that Sarcastrated can do is project his snowflake beliefs on innocent statements. Pretty lame. Is that the best you have?

                      All I was insinuating is that Kirk ought to know his ideas are unpopular and that there may come a time which those ideas are challenged. Nothing else was implied and really you are grasping at straws, which is sort of pathetic.

                    2. Open wider, Jimmy. Do you genuinely believe think the Conspirators, the Federalists, the Heritagers, and their failed attempt to make Republicans’ bigoted, backward platform popular in America will help you become competitive in the culture war?

                    3. Don’t know but we are gonna find out.

                    4. ” Is that the best you have?”

                      No, letting you continue to talk is the best I have.

                3. Doorbell ringing is now a death threat? I suppose it is if the flaming dog poop left on the front porch is used to conceal a land mine.

                  1. Antifa uses this tactic all the time. They show up at someone’s house, camp outside, follow that person around, etc. Funny how the Left doesn’t seem to be bothered by this when it works into their agenda.

                    1. You seem to be awfully well-informed as to antifa’s tactics.

                      Did you attend all the meetings, or did you skip some of them?

                4. OK, so now within 24 hours you’re on record with indisputably hyperbolic usage of both “extraordinary circumstances” and “death threat.”

                  Things always come in threes — what’s the next one? Don’t keep me waiting.

                  1. “Things always come in threes”

                    There’s three kinds of people in this world. The ones who are good at counting and the ones that aren’t.

  6. Maybe this is a chance for the Supreme Court to reign in or strike down this abomination of a law, a relic of the early 20th century. Though with some of the decisions they’ve made this year I am not holding my breath.

  7. Surprise…. The liberal NLRB uses a tweeted joke to target a conservative publication.

    1. I just looked it up. A majority of the current NLRB is Trump appointees (three Trump, two Obama). So much for “the liberal NLRB”.

      1. From what I read it wasn’t the NLRB but the general counsel bringing it before an administrative judge and it was the judge that ruled against him. It would not matter who appointed the counsel as he has been given a complaint and he has to follow the process (another example of bureaucratic zombies). My hope is it will make it to the Supreme Court and maybe strike this law down. If this ruling follows the law as written, then it is unquestionably a violation of the first amendment.

        1. I’m sure you’re right; I was merely responding to the claim that it’s a liberal board.

          1. Heh. A couple of days ago you have Thurgood Marshall engaging in ‘conservative judicial activism’. Then it was all about the decision issued, not the history of the judge.

            Now, though, we can ignore what the NLRB did, and just look at the history of the members of the board.

            Obviously!

            1. As I said in the earlier thread to which you refer, you sure are fond of imputing to me things I never said. There was an earlier comment that it was a liberal board. My response, in its entirety, was that the board is majority Trump appointees. I said nothing whatsoever about whether this was a conservative decision.

              Liberal decision makers occasionally hand down conservative decisions in specific cases and vice versa. And, as Rockstevo pointed out, the board itself probably had little to do with this case. Please try to keep up.

        2. The NLRB GC has virtually unrewiewable discretion over whether to take charges to trial.

        3. Right. The Supreme Court is sure to grant cert on this.

          1. Your probably right but a person can dream

        4. ” he has been given a complaint and he has to follow the process (another example of bureaucratic zombies).”

          That’s a feature, not a bug. The point of a bureaucracy is to make all the difficult decisions in advance. If you’re complaining that people in a bureaucracy aren’t using independent judgment, you’re showing that you don’t understand how they’re supposed to work.

          1. I agree with your point but not the substance, it is a feature of the system but I refuse to go along with that is how it is supposed to work just how it does.
            And not just in government, I see it creeping into my work as well, things that we would get done in a day we now have to fill out massive amount of forms, many that are just duplicated information in another format, multiple conference calls and then takes five minutes to actually accomplish the task. We are told it is to decrease after action failures, and I would go along if that were true but it is not. Have all this paperwork and the number of after change failures because of something being missed is the same of not more.
            Convoluted paragraph I agree, just don’t tell me that is how it is supposed to work, it is just how it does.

            1. The fact that your employer has a poorly-implemented bureaucracy isn’t quite the indictment of bureaucracy you seem to think it is.

      2. Wouldn’t that make the NLRB extremely liberal? Since when isn’t Trump just a typical, wealthy NY liberal?

        1. Since he came down the escalator to mislead the Republican Party about who and what he is.

  8. Surprise, surprise. I scroll down to the comments and there are a dozen by Sarcastr0, the resident VC troll.

    1. Sarcastro is a troll at the Volokh Conspiracy much as the Conspirators and their right-wing fans are trolls in modern American society.

      One might think clingers would have enough self-awareness to have some sympathy for trolls.

    2. Disagreeing with Michael W. Towns does not a troll make.

      1. But pre-emptively complaining about trolls absolutely does.

  9. Clearly this is protected speech, but I would like to note for the record that decades of hostile work environment law is full of bosses who were “just joking”. Half the time that was just an excuse, similar to how Donald Trump suddenly discovered the marvels of sarcasm, and the other half of the time the person in question only discovered afterwards that jokes are in the eye of the beholder, where they really should have known better.

    1. When you look at the “joking” in something like _Melnychenko v. 84 Lumber Co_, it is hard to take this seriously — there is a real difference between grabbing genitals and what I would take as an editor suggesting a topic for his staff to write about.

    2. “Clearly this is protected speech”

      This word “clearly”… I don’t think you’re using it correctly.

      1. Yes yes he is.

        This is clearly protected speech.

        1. So there’s two of you who think “clearly” means “might be”?

  10. Something similar happened at UMass Amherst some years back. The United Auto Workers (UAW) were seeking to organize the undergraduate dormitory floor supervisors (Resident Assistants or RAs) and it was an issue being discussed on campus.

    A student sitting at lunch in the dining commons said — to his friends — “fuck the RA union” and a union activist/RA happened to overhear him. The RA then wrote him up for “harassment”, a violation of the student conduct code.

    I was the advisor to the Republican Club and asked to accompany the student at the meeting with the dean. I printed out a copy of _Cohen v. California_ and dropped it in the dean’s lap, which pretty much ended it, but still, the union got its critic dragged into the dean’s office.

    1. I remember when the RAs went on strike, the students they normally supervised went wild – having sex, drinking, smoking pot…

      Wait, now that I remember, there wasn’t a strike.

      1. heh

    2. Something similar happened at UMass Amherst some years back.

      And away we go!

      1. It’s our new quarantine game.
        Anecdote from Dr Ed? Drink!!!

        (It’s early-morning, and I already am too buzzed to drive today.)

    3. Unions and their supporters are goons. News at 11.

  11. How many Teamsters does it take to change a light bulb?

    Nine – you got a problem with that, bub?

  12. “I was just joking.” We hear this defense all the time. Sometimes it’s really bad (“I wasn’t stupid and wrong, I was SARCASTIC!”).

    More often than not, it’s used as a cover for bad behavior. “Oh, you were offended by all the misogynistic jokes and lewd pictures? Didn’t you know that Judge Kozinski was JUST JOKING?”

    And we see it all the time by employers and other people in a position of power- they can hide behind the “just joking” label because who is going to call them out on it? It’s the magic of the asymmetry; either you grok that it’s a joke, but also a directive (a gestalt), or …. you make a stir, in which case you are the problem, because you have a thin skin, and C’MON, IT’S JUST A JOKE … and you don’t have any power.

    It’s sickening. And it’s pathetic that Adler repeats this BS.

    Have the courage of your convictions. If you want to say that intimidating employees not to unionize is fully protected by the First Amendment, then do so. It’s not a bad argument, especially with the current Court. Go full force- “Yeah, if you try to unionize, y’all get screwed. I’ll make sure of sure of it.” Say it’s protected.

    But this is more meaningless propaganda that you’re pushing. Own your agenda.

    1. Or, alternatively, it was just a joke.

      1. ” it was just a joke.”

        Counterpoint: Jokes are funny.

        1. Counterpoint: all jokes are intended to be funny, but not all are

      2. That’s what Artie Ray Lee Wayne Jim-Bob Kirkland said.

        Just before the Volokh Conspiracy banned him for telling jokes about conservatives.

    2. Why is it wrong for businesses to fire employees who are trying to unionize?

      1. “Why is it wrong for businesses to fire employees who are trying to unionize?”

        Because it’s against the law. A very old law. You might recall that there was a tumultuous past with regard to labor unions and employers prior to these laws.

        Now, if you want to make an argument that these laws are bad as a matter of policy, that’s cool. Make it. Get the laws changed.

        If you want to make an argument that these laws run afoul of the First Amendment (similar arguments are made in other regulated fields, such as the SEC and corporate disclosures), feel free to make it as well.

        If you want to beclown yourself like Eddy and Bob, join the Adler/Trump joke brigade, because clown cars hold a lot of people.

        1. Its a clown limo. Very plush, good bourbon.

        2. You are very intelligent and self-possessed.

          If I later claim to have been sarcastic, ignore it.

          1. Gee, Eddy, it’s almost like you’re trying to be clever!

            Next time, do something advanced. Maybe …. breath while your mouth is closed. I know it’s very difficult for you, especially given that you will need to mouth these words as you read them, but I have full confidence that given another ten or fifteen years of practice, you’ll be able to master that difficult skill.

              1. Hey!
                I do not like you conservative brat
                I do not like your crazy tin hat
                I do not like you at the shore
                I do not want you at my door
                I do not like your pathetic life
                I hope you do not take a wife
                I hope you don’t decide to breed
                Cause that’s one thing we do not need

                I do not like how you’re so cruel
                I hate you and your goober school
                You’re wrong about the working class
                I hope they kick your geezer ass
                I do not like you on this world of ours
                I’d rather send you to the planet Mars
                Where you’d die from lack of oxygen
                Instead of wasting the air of other men
                Hey!

                1. Sending me to Mars has got to be some kind of labor violation.

                  But I’m given to understand that on Mars you can eat the candy bars.

                  1. Maybe, but I also understand that it ain’t the kind of place to raise your kids, and that in fact, it’s cold as hell.

        3. “Why is it wrong for businesses to fire employees who are trying to unionize?”
          Because if you push them into rioting, innocent property can be damaged! I’d say that innocent people can get hurt, except there are no innocent people involved.

      2. Because then Unions would never get in power. So they used the power of the government for force.

        So in the end, nothing wrong unless you like power and forcing people.

        1. “So in the end, nothing wrong unless you like power and forcing people.”

          Yeah, no one among ownership or management likes power or forcing people. That’s just the unions who do that…

    3. OK, fair enough, the NLRB should issue an order that no employee of the Federalist Web site may be sent to work in a salt mine. Ignore any protests that he wasn’t speaking literally.

      1. Lame. According to you, I can tell you to stop doing X, or I’ll give you a knuckle sandwich. Or if you don’t stop X, you’ll be sleeping with the fishes.
        You’re arguing that I can be ordered not to bring you a sandwich with pigs’ knuckles in between the bread. And I can be ordered to not force you underwater with scuba gear and give you a sleeping pills. But I can’t be ordered to do anything else…or to not do anything else.
        The thought that, for a threat to be valid, it can only be when taken literally, is the dumbest idea I’ve seen this month. It’s premised on, “We’re all too stupid to understand English as it’s actually used.”

        Disheartening.

        1. You’re saying this guy wasn’t being literal?

          That he was joking?

          1. I think he’s saying that figuratively and joking are different things.

        2. ” According to you, I can tell you to stop doing X, or I’ll give you a knuckle sandwich. Or if you don’t stop X, you’ll be sleeping with the fishes.
          You’re arguing that I can be ordered not to bring you a sandwich with pigs’ knuckles in between the bread. And I can be ordered to not force you underwater with scuba gear and give you a sleeping pills. But I can’t be ordered to do anything else…or to not do anything else.”

          You could also be ordered not to pour out any aquariums (aquaria?) into his bed while it is occupied.

    4. More often than not, it’s used as a cover for bad behavior.

      Really? You think more often than not — i.e., greater than 50% of the time — when someone describes something as a joke it isn’t?

      1. Really? I mean, REALLY?

        Yes, I really think that when people get called out for bad behavior, they tend to respond with “It’s just a joke.”

        Whether it’s sexual harassment, anti-union verbiage, you name it. “It’s just a joke, lighten up snowflake” is the refuge of scoundrels.

        Next time try engaging with the point- when I was talking about power asymmetry. I realize that context and nuance is completely lost in this place today, but …. you know. I expect not all the people I remember jump into the clown car on cue.

        1. “Yes, I really think that when people get called out for bad behavior, they tend to respond with “It’s just a joke.””

          IIRC, Eichmann made that defense when he was accused of mass murder.

        2. Yes, I really think that when people get called out for bad behavior, they tend to respond with “It’s just a joke.”

          That sounds plausible. But it’s very different than what you said.

          Most As are B != Most Bs are A.

          To put it in concrete terms: most people guilty of crimes claim to be innocent, but that in no way means that most people who claim to be innocent are actually guilty.

          1. “That sounds plausible. But it’s very different than what you said.”

            What I said was ….

            “We hear this defense all the time. …. More often than not, it’s used as a cover for bad behavior.”

            So, yeah. I mean, if you’re an undergraduate in college, and you’re taking humor 101, and someone DESCRIBES A JOKE (this is what a joke is!), that isn’t A DEFENSE.

            I mean, context. So people using “I was just joking” (notice the difference here) as a DEFENSE are not really being descriptive.

            But yes, sometimes a cigar is just a cigar. Good?

            1. It was really intimidating when you threatened to ship me to Mars where I’d suffocate. It deterred me from joining the anti-loki union.

              Also,

              “Loki’s origins and role in Norse mythology, which some scholars have described as that of a trickster god, have been much debated by scholars.”

              https://en.wikipedia.org/wiki/Loki

      2. “Really? You think more often than not — i.e., greater than 50% of the time — when someone describes something as a joke it isn’t?”

        No joke.

    5. ““I was just joking.” We hear this defense..blah blah blah “.

      Shorter Loki13:

      “That’s not funny”

      1. By the way, your joke about infecting all the religious people with Coronavirus was a hoot. A real screamer.

        1. Almost as funny as your username.

          I’m not laughing at it, I’m laughing at your face.

          1. It’s a joke about how some things are a lot smaller than they’re supposed to be.

  13. Careful, there, loki13. Judge Kozinski and his sense of “humor” are not to be mentioned here. Because . . . well, that has never been explained.

    1. Much like how certain conspirators were tipped off to the deliberations regarding the PPACA, and then proceeded to blog about it in an attempt to influence the result ….

      Yet somehow never mentioned that they were tipped off, and have not, to this day, seen fit to explain any of that. Because, you know, reasons.

      We will put that down the Kozinski memory hole, amirite?

      1. You’re about 5 minutes from ranting about child molesters in a pizza parlor, Loki.

        1. They’re still down there!!!

        2. So, am I missing something, DMN? You were here. Let’s recap re: PPACA.

          1. Slightly more than a month before the release of the opinion, VC went into overdrive, with certain conspirators releasing posts, sometimes multiple a day, with specific issues. Some were legal rationales. Some of those had to do with how justices shouldn’t waver, etc. Yeah, that.

          2. At the time, there were people a lot more crazy than me that thought there was a leak. Because that was the only thing that could explain it. I, on the other hand, was a fool and a tool, because I defended both the VC and SCOTUS. I could not believe that there would be any kind of leak from SCTOUS, ever, and, moreover, if there ever was, there was no chance in hell that the estimable people here would ever take advantage of non-public information without telling us, certain not to try and influence the Court.

          3. Of course, as we all found out later …. there was a leak. A notable leak. That certain individuals (such as, for example, Prof. Barnett) had access to. We also know that Prof. Kerr, to his credit, addressed this – of course, he didn’t really blog much about the PPACA prior to the opinion. And after that …. crickets.

          I mean, we have the VC, and they have first-hand knowledge of one of the biggest stories around …. and nothing.

          That’s not a conspiracy, that’s what happened. That they haven’t addressed it isn’t surprising because people like you will forget.

          And make really, really distasteful comparisons.

          Good job, you. Are you proud of that one?

          1. I do not remember any confirmation of, as opposed to rampant speculation about, any such leak. I remember that Orin addressed it by making fun of the leak stories.

            1. My other comment with all the link is awaiting moderation. But go see the July 3, 2012 post by Kerr.

              More on the Supreme Court Leak.

              There’s just a WHOLE SERIES OF POSTS discussing this. By Kerr.

              1. My other comment with all the link is awaiting moderation.

                You’re cute. Based on past experience I’m pretty sure that no link-heavy comment “awaiting moderation” here at Reason has ever actually been eventually posted.

                I’ll try to find the one you mention.

                1. It’s still awaiting moderation ( I can see it).

                  Here are the links (put in a backslash for every space)”

                  volokh.com 2012 07 01 who-leaked

                  volokh.com 2012 07 03 so-now-we-have-supreme-court-leaks-disagreeing-with-supreme-court-leaks

                  volokh.com 2012 07 03 more-on-the-supreme-court-leak

                  volokh.com 2012 07 05 new-leak-explains-what-chief-justice-roberts-was-really-thinking-in-health-care-cases-although-the-leak-is-poorly-sourced

                  volokh.com 2012 07 08 the-supreme-court-leaks-continue

                  Here is Orin Kerr wondering before the opinion why everyone was suddenly posting about it:

                  volokh.com 2012 05 24 the-affordable-care-act-and-the-rumor-mill/

          2. “a lot more crazy than me”

            You read their crayon messages? I thought the “homes” threw those away.

            1. “You read their crayon messages? I thought the “homes” threw those away.”

              No need to guess, just ask your keepers what they do with them. I’m sure they’ll be honest with you.

  14. “But according to the NLRB, anyone can file such a complaint against any company.”

    That sounds ripe for abuse…or worthy political action, depending on how you look at it.

    1. Or maybe like a good reason not to make your threats via a mechanism that’s publicly visible.

  15. Doesn’t he know the commenting rules? All sarcastic remarks much be punctuated with a smiley face! 🙂

  16. ” represented by the New Civil Liberties Alliance ”

    Movement conservatives have formed another right-wing separatist organization, distancing themselves from the American mainstream to even greater degree with a pale imitation of the real thing?

    This outfit seems destined to stand alongside the clinger AARP, the clinger NAACP, and the other clinger ACLU . . . along the American political fringe, increasingly isolated and impotent.

  17. It rather looks like poor Domenech suffered from bad legal representation, which may be material to this case.

    The NCLA, which appears to have no labor lawyers on staff, went on to embarrass itself in the NLRB proceeding, at one point moving to dismiss the case based on jurisdictional requirements in the Federal Rules of Civil Procedure, only to be informed by the agency that NLRB proceedings have never been governed by those rules.

    I’m also getting some conflicting reports about NLRB caselaw about the ‘it’s a joke’ defense. And maybe a Circuit Court case?

    1. Yeah, I can read Jacobin too.

      326 F.2d 910 (1964) “executives who threaten in jest run the risk that those subject to their power might take them in earnest and conclude the remarks to be coercive.”

      That’s perhaps true, but nobody subject to Domenech’s power did that. This was just the action of an officious intermeddler. In that case, there was actual testimony of workers saying they felt threatened (and while I obviously wasn’t there when the guy was speaking, his reported words don’t sound like jesting.) In this case, the ALJ held that the opinions of the employees is irrelevant.

      Reply

      1. I got it from twitter.
        I’d post Jacobin without shame, even if they can sometimes be very silly.

      2. “nobody subject to Domenech’s power did that.”

        Assertion without evidence.

  18. Courts shouldn’t have too much trouble with this. They should tell the NLRB that the NLRB has a responsibility to obey 1A and not participate in retaliation against speech or viewpoints. The NLRB has no genuine labor interests to protect in this case.

    If the Federalist had a salt mine or an ongoing labor dispute or unionization effort, then perhaps a genuine interest could be found. But that’s not the case here. This is purely an action taken in retaliation for protected 1A activities. Government agencies need to be told not to participate in such retaliation, either on their own initiative or on another’s behalf.

    1. 326 F.2d 910 (1964) “executives who threaten in jest run the risk that those subject to their power might take them in earnest and conclude the remarks to be coercive.”

      Link

      1. If I understand correctly, the putative joke was that if the company unionized, management would cut the guy’s hours and relocate some of its equipment out of state. No reference to nonexistent salt mines.

        1. Invoking salt mines is truly becoming magical.

          1. It must be magic if it can make the First Amendment disappear.

      2. Nothing in the quoted opinion suggests that the employer in that case even raised a 1A argument.

        1. How does that argument square with ‘I do not think that a law banning actual threats of retaliation, as opposed to jokes, would be unconstitutional?’

          1. To expand a bit more,
            the above opinion allows that jokes can be coercive, presumably by being threatening.
            If you do not take issue with this case’s finding that it’s a threat,
            and you also think threats are OK to ban,

            then what’s your issue the facts in the OP?

            1. A joke can be coercive. All jokes are not therefore coercive. Only coercive or potentially coercive jokes are coercive or potentially coercive. The other jokes are protected speech. Protected speech must be protected. If that makes the NLRB’s job very difficult, too bad.

              1. OK, but then as to that question of fact the ALJ, finder of fact, disagrees with your take.

              2. I don’t think all jokes are coercive.

                But I did say, right up top, that “it was a joke” isn’t a category of First Amendment defense to the Wagner Act. The statute is constitutional because there is no constitutional bar to precluding jokes as part of a content neutral regulatory scheme that leaves open alternative channels of communication.

                If the speaker can establish that it could not have reasonably been interpreted as a threat, then it may not be an ULP.

                1. “If the speaker can establish that it could not have reasonably been interpreted as a threat, then it may not be an ULP.”

                  I think what you’re actually going for here is that the speaker can show that the threat SHOULD NOT have been interpreted as a threat, not that it COULD NOT have been. Unless your premise is that jokes cannot be theatening.

              3. “A joke can be coercive. All jokes are not therefore coercive.”

                When you take someone else’s words, and expand on them in a way that differs from what they said, just so you can rip up the argument you just invented, you only sound clever in your own mind.

                A joke can be coercive. The ones that are can be treated as coercive. Here’s an example: My little brother used to hate “why are you hitting yourself?” He grew up to serve a career in the military. As far as I know, nobody plays that joke on him any more.

          2. Orthogonally.

            One can take the position that the 1A is irrelevant here; anything phrased as a threat is illegal. Or one can take the position that the 1A protects speech unless it is a legitimate threat.

            If the boss didn’t raise a 1A argument, then the court does not need to (and should not!) address what speech might be protected. So when it says, “If you joke, you run the risk people will take you seriously,” it is not implicitly ruling at all on the 1A issue. And without the 1A issue, the only question is what is swept into the statutory prohibition. And that can be any speech that someone complains about, regardless of whether it’s reasonably construed as a threat.

            1. Except it looks to me in a cursory examination like the court did a legitimacy examination nonetheless.

              So to sum up your position,

              1) Legitimate threats of retaliation are not protected.
              2) In the case here, the question turns on whether this is a legitimate threat
              3) You’re not super keen on the objective test the ALJ used
              4) You definitely disagree with the way the ALJ actually did the objective test here.

              Fair enough, that’s a reasonable position. I’m a bit more forgiving of an objective test, due to how a coercive company can keep it’s employees quiet, thus dodging a subjective test. Dunno about the operation of the test here; when I first heard about the tweet it struck me as a threat via joke. I’m too biased to put on my reasonable person hat on at the moment though.

              Any thoughts about Prof. Adler’s positing clear partisan targeting?

              1. I would say that’s a reasonable position as long as it is posited as statutory interpretation. The statute is constitutional; the First Amendment has nothing to say here.

      3. You’re talking about a rule. This is a particular case. It’s clear how an employer can “run the risk”. It may be proven in this case that the enforcement is in retaliation for protected speech — facts proven rather than risks run.

        Government agencies must be prevented from being used to retaliate against protected speech. Especially in cases like this one where there appears to be no genuine interest.

        NLRB can take their actions against jokes that actually may be found to “run the risk”. They can’t be allowed to casually erase the First Amendment because it makes their decision-making process easier.

        1. You’re talking about what you think the law ought to be again, not what the law is.

          1. Yes. Hopefully the courts do the right thing and protect speech from impermissible retaliation. If that means they have to invalidate some parts of the law, good.

            1. You can’t get there from here. If you want to overrule what the law currently is, you need to do so on appeal, not ignore precedent.

    2. ” the NLRB has a responsibility to obey 1A”

      Already done! “Congress shall make no law…” NLRB is not Congress.

  19. Yeah, I can read Jacobin too.

    326 F.2d 910 (1964) “executives who threaten in jest run the risk that those subject to their power might take them in earnest and conclude the remarks to be coercive.”

    That’s perhaps true, but nobody subject to Domenech’s power did that. This was just the action of an officious intermeddler. In that case, there was actual testimony of workers saying they felt threatened (and while I obviously wasn’t there when the guy was speaking, his reported words don’t sound like jesting.) In this case, the ALJ held that the opinions of the employees is irrelevant.

    1. “That’s perhaps true, but nobody subject to Domenech’s power did that.”

      …that you know of.

  20. I think the primary objection here is and should be that no employee alleges this was a real threat or complained of unfair labor practices. Even if some outside observer might misunderstand the joke as a true threat, it doesn’t really matter since they’re an outside observer. The people that work there are best qualified to know if their boss is serious or joking, and are the ones potentially affected. If all of them think it’s a joke, then there’s clearly no violation.

    1. Note: this should have been a standing issue – the interloper has none. Courts exist to adjudicate real cases and controversies. If no employee complains, there is no case or controversy, because no tangible harm has resulted.

      1. This isn’t an Article III court case.

        1. It should be. The only non-article III courts should be military courts.

          1. Well, your quest to eliminate the entire American bankruptcy system in the U.S. is interesting, but probably not destined for success.

            1. well, obviously I’m talking about federal courts, because Article III doesn’t apply to the states. Maybe I’m wrong, but isn’t bankruptcy a state court issue?

              1. ” Maybe I’m wrong”

                Maybe you just need a little bit of education.

                1. Not a lawyer and never had to subject myself to bankruptcy, so unsurprisingly I don’t know anything about bankruptcy proceedings.

                  So why does bankruptcy need to be an administrative court? Obviously standing isn’t an issue in bankruptcy proceedings anyway (since clearly the person seeking bankruptcy relief has standing). It would seem to satisfy the ‘case or controversy’ standard for article 3, because there’s a dispute about how creditors can or can’t be satisfied.

                  Regardless, labor courts are clearly adversarial proceedings which should have all the features of a standard court. It makes little sense for these to happen in administrative courts.

                  1. “So why does bankruptcy need to be an administrative court?”

                    Because it’s cheaper that way, and unlike civil or criminal court, there’s no need to provide a jury.

              2. I like your breezy slide from asserting what the law is ‘no standing’ to what the law ought to be ‘no administrative courts.’

                Anyhow, bankruptcy is a federal statute, and handled exclusively in federal court.

  21. Hey folks, Ben Domenech here. The comments here have been enlightening and interesting.

    I view this as a case, unexpected but not unwelcome, designed to settle a few questions. Namely, questions regarding the broad allowance of standing enforced by the NLRB, in addition to First Amendment related questions.

    One of the many oddities of this is that I am not particularly anti-union, nor is the publication I run, which publishes many a piece with which I personally disagree. Nothing the NLRB introduced as anti-union content was written by me, for instance, and what they did was focused on public unions. Odd, that.

    The argument of one commenter above encompasses my position: “If the Federalist had a salt mine or an ongoing labor dispute or unionization effort, then perhaps a genuine interest could be found. But that’s not the case here. This is purely an action taken in retaliation for protected 1A activities. Government agencies need to be told not to participate in such retaliation, either on their own initiative or on another’s behalf.”

    I hope you will all feel free to email me at ben at thefederalist.com with any additional questions. I plan to continue to speak out about this case. The stakes, measured in one way, are quite small – my punishment is an email or two and a deleted tweet. But in another, they’re quite large.

    Are we comfortable with enabling a troll army to enlist the administrative state in their mission? Are we satisfied with a bureaucracy that can be sent after people for making a joke? Or do we think perhaps that’s not what these entities were even intended for in the first place – and that they should be reconsidered in the light of the past century of bureaucratic overreach?

    I intend to find out.

    1. Are we comfortable with people being held to account for their words, even when they later claim “it was all just a joke”.

      1. It was obviously a joke. He never should have had to claim it. (“Salt mines” were obviously metaphorical and referenced a common parody idiom – made it obvious it was a joke).

        1. “It was obviously a joke.” even if true, phrasing the joke in the form of a threat means it was obviously a threat as well.

          1. But hardly a “true” threat. Only “true” threats lie outside freedom of speech.

            1. Is it your theory that no threat can be “true” if the author of the threat says it’s a joke?

    2. I don’t agree with your position- and you really should get legal advice before you tweet about certain things- but I do admire you coming here and expressing yourself.

  22. Matt Bruenig, the initial complainer, explained his socialist vision (“at least for the time”) in 2017:

    https://medium.com/@MattBruenig/nickel-and-dime-socialism-47fcec406295

    1. He’s withdrawn, and is no longer a thing. So even your lame ad hominem is attenuated from the facts here.

      1. Ad hominem? Does that mean that being a socialist is a bad thing?

        1. If he’s no longer a thing, why did he write in support of the case against Domenech?

          https://www.jacobinmag.com/2020/04/federalist-union-nlrb-ben-domenech

          Didn’t you say upthread, “I’d post Jacobin without shame, even if they can sometimes be very silly”?

          1. Also – one criticism of the procedure here is that random socialist agitators get to file complaints against businesses with which they have no connection.

            1. In other news, people can call 911 to report a crime in progress, even if they have no connection to the criminals.

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