A split U.S. appeals court ruled on Friday that the National Labor Relations Board (NLRB) exceeded its authority by ordering Tesla CEO Elon Musk to delete a 2018 tweet.
In the tweet, Musk implied that Tesla employees would lose stock options if they chose to unionize.
The New Orleans-based 5th U.S. Circuit Court of Appeals, in a close 9-8 decision, dismissed the 2021 NLRB order that had deemed the tweet an unlawful threat, concluding instead that it was protected free speech under the First Amendment.
In an unsigned opinion, eight of the nine judges in the majority argued that removing speech on public matters is not a remedy traditionally supported by American law.
This reasoning led the majority, all of whom were appointed by Republican presidents, to overturn the NLRB’s 2021 decision without ruling on whether the tweet itself violated the National Labor Relations Act.
Additionally, the court instructed the NLRB to re-evaluate its order for Tesla to reinstate a pro-union employee who had been dismissed. Circuit Judge James Dennis, joined by seven judges, including all Democratic appointees, criticized the majority’s ruling, calling it “light on law and facts.”
Neither Tesla nor the NLRB responded to requests for comment. This case dates back to before Musk's 2022 purchase of Twitter (now known as X), a platform he frequently uses.
Musk had tweeted during a United Auto Workers union organizing effort at Tesla's Fremont, California plant, stating: "Nothing stopping Tesla team at our car plant from voting union... But why pay union dues & give up stock options for nothing?"
Tesla maintained that the tweet was not a threat but a factual statement, pointing out that unionized workers at other automakers do not receive stock options. Although a three-judge panel of the 5th Circuit disagreed in March 2023, the full appeals court decided to rehear the case.
Separately, Musk’s company SpaceX has filed a lawsuit against the NLRB, arguing that its internal enforcement processes are unconstitutional.
