How a Tweet by Elon Musk Could Affect the Future of Unionization in the United States

Since Elon Musk purchased Twitter (now known as X) in 2022, the platform has seen an increase in controversy surrounding what is and what is not allowed to be posted. Musk claims he bought Twitter to “adhere more closely to the principles of free speech” [4]. He has certainly succeeded in championing the spread of questionable content on the platform. Elon Musk himself is a large perpetrator of this questionable content, and has been known to repeatedly attack other businesses, politicians, and celebrities, often in immature and inappropriate ways. Back in May of 2018, he decided to take a swipe at his employees working for Tesla who were trying to unionize:

Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues and give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare [3].

The National Labor Relations Board (NLRB), an independent federal agency responsible for protecting the rights of workers across America, ordered Musk to take the post down, claiming that it violated labor law. Musk’s suggestion of “giving up stock options” was seen in the eyes of many Tesla employees as well as the NLRB as a “retaliation for unionization,” a right that Tesla employees can exercise at any time [3]. In response to the actions of the NLRB, Tesla filed a lawsuit asserting that Musk’s First Amendment right to free speech had been violated by the agency when he was forced to take down the tweet [1].

 In 2023, the case was heard by three judges of the 5th US Circuit Court of Appeals, who voted to uphold the order from the National Labor Relations Board. However, later that year, the court agreed to hear the case again, giving Musk a second chance, this time in front of the full court of seventeen judges [3]. The court voted 9-8 in favor of Musk, allowing him to keep his tweet up, citing First Amendment protections. All nine judges who voted in Tesla’s favor were conservative appointees [2].

The debate around free speech and what it protects has been going on since the creation of the Bill of Rights. There are countless Supreme Court cases discussing the issue, and we have learned over the past couple of centuries that there are certain things that the First Amendment does not protect. These include: “obscenity, fighting words, defamatory speech, true threats” [5] and others. According to these guidelines, a clear argument can be made that Musk’s tweet should not have been protected under the First Amendment, as it constitutes a threat. Thus, it jeopardizes the rights of Tesla’s employees by placing a roadblock in their path toward unionization.

Elon Musk has made his anti-union stance very clear, believing that both production and the workplace environment would be negatively impacted by the unionization of Tesla. In the past, he has said that “unions naturally try to create negativity in a company” [6], a quote that, given Tesla’s poor history with its treatment of laborers, should be a warning sign to those working for the automotive enterprise. The threat of losing stock options to many may have been enough to prevent them from voting in favor of unionization, underlining the key power imbalance between Musk and his employees. One could easily come to the conclusion, therefore, that the tweet posted by Musk should not have been protected by the First Amendment, as it had the potential to cause harm to Tesla employees by preventing them from unionizing, which in turn increases worker safety.

It is important not only to think about how this ruling affects the employees at Tesla, but likewise the employees of other major corporations that are not yet unionized and fighting for unionization. The majority opinion citing free speech protections could open the door to CEOs taking more drastic measures in order to prevent the unionization of their workers. What is to stop other executives from threatening or scaring their workers with the possibility of retaliation for simply exercising their right to unionize?

With the power that big businesses have in the United States, it is incredibly valuable for each and every worker to have a voice. The US has a very checkered past when it comes to the treatment of its working class. Historically, unions have acted as a much needed barrier between the exploiters and the exploited. Only time will tell if they can continue to play their crucial role in the protection of America’s workers.

Sources:

1. Tesla, Inc. v. NLRB, 5th Cir., No. 21-60285 (2024).
2. Robert Iafolla, Tesla Wins Challenge to NLRB Decision on Musk Union Tweet (Oct. 25, 2024, 6:22 PM), https://news.bloomberglaw.com/daily-labor-report/tesla-wins-challenge-to-labor-board-ruling-on-musk-union-tweet.
3. Kevin McGill, Threat or not? Elon Musk Gets New Hearing on Tweet About Tesla Workers’ Stock Amid UAW Union Effort (July 21, 2023, 4:57 PM), https://apnews.com/article/tesla-elon-musk-labor-union-twitter-e5fd43697d6caecd42d8cc5eb40527a3.
4. Isaac Chotiner, Why Elon Musk Bought Twitter (Apr. 26, 2022), https://www.newyorker.com/news/q-and-a/why-elon-musk-bought-twitter
5. “First Amendment and Censorship” (Oct. 2021), https://www.ala.org/advocacy/intfreedom/censorship#:~:text=The categories of unprotected speech,true threats, and fighting words.
6. “Elon Musk says letting workers unionize creates ‘lords and peasants’. What?” (Dec. 20, 2023), https://www.theguardian.com/commentisfree/2023/dec/20/elon-musk-unions-tesla.