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A federal appeals court handed Elon Musk a victory in a freedom-of-speech case on Friday by overturning an earlier ruling in a dispute between the billionaire and the National Labor Relations Board.
In March last year, three judges on the U.S. Court of Appeals for the Fifth Circuit in New Orleans affirmed the board’s finding that Tesla illegally fired an employee involved in union organizing, and that Mr. Musk, Tesla’s chief executive, had illegally threatened workers’ stock options in a post on Twitter if they chose to unionize. The opinion allowed the labor board to enforce its 2021 order requiring Tesla to reinstate, with back pay, the employee, Richard Ortiz, and Mr. Musk to delete the 2018 post.
Mr. Musk challenged the panel’s ruling, and on Friday the full court ruled, 9 to 8, that the labor board had improperly ordered him to delete the social media post. “The agency exceeded its authority,” the 11-page ruling said. “We hold that Musk’s tweets are constitutionally protected speech.”
“Deleting the speech of private citizens on topics of public concern is not a remedy traditionally countenanced by American law,” the ruling added.
The court sent the matter of Mr. Ortiz’s firing back to the labor board to review, saying the board had failed “to consider the fact that the actual decision maker in Ortiz’s firing harbored no anti-union animus.”
The judges did not rule on whether Mr. Musk’s online comment constituted a National Labor Relations Act violation for illegally threatening workers. (The board has held that it did.)
In a 31-page dissent joined by seven colleagues, Judge James L. Dennis called the majority opinion “light on law and facts” and “logically incoherent.” He said he would have ruled that the labor board “did not exceed or abuse its broad remedial authority” in ordering Musk to delete the tweet.
The labor board declined to comment. Tesla, Mr. Musk and Mr. Ortiz could not be immediately reached for comment.
Friday’s ruling arose from an incident in 2017 when Mr. Ortiz was involved in an effort to unionize the Tesla plant in Fremont, Calif. As part of the campaign, he posted screen shots of co-workers who opposed unionization on a private Facebook page. When an investigator for Tesla questioned Mr. Ortiz about the photos, he said he couldn’t remember where he had gotten them, which he later acknowledged was a lie. Tesla then fired him, with lying cited as the cause.
A labor board investigation found that Mr. Ortiz had been fired because of his unionization campaign, not because of his false statement.
Mr. Musk’s post on Twitter, in May 2018, was part of a longer thread about the United Automobile Workers union. He said there was nothing stopping Tesla employees at the California plant from voting for a union, adding, “But why pay union dues & give up stock options for nothing?” When another commenter asked two days later if Mr. Musk was “threatening to take away benefits from unionized workers,” he replied, “No, UAW does that.”
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