Payam Javan: In a close decision, the Fifth Circuit Court of Appeals ruled on October 25 that a 2018 social media post by Tesla CEO Elon Musk warning employees they could lose stock options if they unionize is protected speech. The court’s 9–۸ decision overturned a 2021 National Labor Relations Board (NLRB) order that had deemed the post an unlawful threat, requiring Musk to delete it. The majority opinion stated that Musk’s post, which was made before his acquisition of Twitter (now X), was constitutionally protected and did not fall under restricted forms of speech like obscenity or perjury. The decision underscores the court’s stance that federal intervention in social media communications should be limited.
The post, written during a United Auto Workers (UAW) unionization campaign at Tesla’s Fremont, California, plant, stated, “Nothing stopping Tesla team at our car plant from voting union … But why pay union dues & give up stock options for nothing?” This message led pro-union workers and the UAW to file complaints with the NLRB, claiming Tesla violated the National Labor Relations Act (NLRA) by discouraging unionization efforts. Tesla maintained that the post was a statement on company policy rather than a threat, noting that unionized workers at other automakers typically do not receive stock options. While a three-judge panel initially disagreed with Tesla, the full court ultimately sided with the company, emphasizing the importance of open dialogue over compelled silence.
The Fifth Circuit’s ruling stops short of addressing whether the post itself violated federal labor laws, focusing instead on the NLRB’s authority to demand its removal. The opinion argued that deleting private citizens’ speech, even by corporate leaders, on matters of public interest is not a remedy traditionally upheld in American law. The decision arrives amid heightened labor tension, as the UAW recently launched a new union drive targeting Tesla and other automakers, following a successful six-week strike at Ford, General Motors, and Stellantis. This case adds to a series of disputes between Musk and the UAW, highlighting broader debates over union rights, free speech, and labor relations in the automotive industry.