The Federalist and the NLRB: First Amendment at Stake

NEW YORK, NY: Today, Southeastern Legal Foundation filed an amicus brief with the National Labor Relations Board (NLRB) on behalf of two employees of The Federalist. Ben Domenech, editor of The Federalist, tweeted jokingly that if his employees ever unionized, it was “back to the salt mine” for them. His colleagues got the joke; a Twitter follower did not. Taking a page from the “cancel culture” handbook, the Twitter follower—who has no connection to The Federalist—filed a complaint with the NLRB against Domenech and his company.

This intimidation tactic succeeded. Domenech’s tweet was found in violation of the National Labor Relations Act because, the judge held, it threatened employees against unionizing.

“Too often we see social media users unfollow, report, or harass those with whom they disagree, to the point where individual lives and livelihoods are at the mercy of the mob,” said General Counsel Kim Hermann. “This is yet another example where cancel culture has gone too far.” At the hearing against Domenech, employees submitted sworn affidavits supporting their colleague and testifying that his tweet was obviously sarcastic. Not only did the judge ignore these affidavits, but he also suggested that the employees’ point of view was unreasonable. The judge inserted his personal values about the matter, reaching a conclusion that was not based on fact or law. The issue is now on appeal before the NLRB.

Southeastern Legal Foundation is committed to preserving First Amendment rights, including the right of individuals to share personal opinions about public affairs on social media. If the NLRB allows the judge’s opinion to stand, it will set a dangerous precedent. Cancel culture activists will have the green light not only to continue their intimidation tactics online, but also to bring these tactics to the courtroom.

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