Magicians Penn & Teller are joining a bunch of First Amendment defenders hoping to make a National Labor Relations Board finding against a tweeted "joke" by the publisher of a conservative website disappear.
The iconic duo joined humorist P.J. O'Rourke; veteran First Amendment attorney Robert Corn-Revere (a longtime defender of broadcast speech (including the appeal of CBS's 2004 Super Bowl halftime "reveal" indecency fine), and various others in an amicus brief filed with the U.S. Court of Appeals for the Third Circuit in support of Ben Domenech, publisher of conservative website, The Federalist, who is appealing the NLRB decision, saying the court should nullify its enforcement.
At issue is a tweet from Domenech's personal account to 80,000 followers: "FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine." Domenech said it was a joke but a Twitter user with no connection to the site--i.e. not an employee feeling threatened--filed a complaint with the NLRB claiming the tweet amounted to unfair labor practice because it threatened reprisal against those wishing to form a union.
The NLRB agreed and ordered Domenech to delete the tweet. Domenech appealed that decision, which drew the support of Penn & Teller et al.
The amici said the case is easily resolved on one fact: The tweet was clearly a joke. They pointed out that the tweet had gone to all Domenech's followers and anyone who wanted to share it. "If Domenech really wanted to punish employees of FDRLST Media, he would have done it in an e-mail--and if he really really wanted to punish them, he would have done it in a proverbial meeting (now via Zoom?) that could have been an email."
"Evoking this [salt mines] trope no more represents a real threat of punishment than a tweet with the ironic slogan “The beatings will continue until morale improves” represents a real threat of violence," they told the court.
The tweet was also a joke because it was, well, funny, they added. Federalist parent FDRLST Media is not some "cartoonishly evil mega-conglomerate with its own salt mine," they pointed out, nor do those who approach its headquarters fear that Domenech may "release the hounds." Instead, they said, "his tweet played into that stereotype for humorous effect."
They also point out that there is no evidence that any Federalist employee actually thought the tweet was anything but a joke.
What is not funny, they said, is if people can be dragged into court "on the basis of satire, sarcasm, or hyperbole, everyone will self-censor their humor, to the detriment of freewheeling discourse."
"Will the NLRB next come for motivational posters saying, 'the beatings will continue until morale improves'?" they asked, collective tongues in cheek. "Will exasperated exhortations on Twitter to 'burn it all down' lead to house calls from the FBI? Better not to start down that path. The NLRB should learn to take a joke." If it doesn't, they said, "the right to freewheeling speech both online and offline is threatened."
The amici point out that the National Labor Relations Act protects speech by employers as well as unions if that speech “contains no threat of reprisal or force or promise of benefit.” They say that "both text and context make it clear that the tweet was a joke, not a threat."
After all, they argue, Twitter is a public performance space and it should not generally be presumed that tweets are formal policy statements, President Trump's "dalliances with the platform" notwithstanding, they said.
NLRB's big mistake, they said, was ignoring that context. "Domenech’s statement was in the form of a tweet on a public and widely followed social-media account. People generally don’t make serious, illegal threats in front of an audience of 83,000 people," they said, not again adding, though they could have, the President's use of the platform notwithstanding.
Instead, NLRB treated the tweet as though it had been sent in an e-mail only to Federalist employees
People speak differently to different audiences, they pointed out. "On TV, John McCain can tell Jon Stewart 'I had something really picked out for you, too — it’s a nice little IED [improvised explosive device] to put under your desk' and get laughs from the crowd, not a visit from the FBI," they said.
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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