NLRB: Elon Musk's tweet was coercive, and must be deleted.
5th Circuit, en bank: That remedy violates the 1st amendment.

The NLRB ruled that a tweet by Elon Musk was a threat to rescind stock options if employees unionized. As a remedy, the Board ordered that the tweet be deleted.

In a 9-8 en banc decision, the 5th Circuit refused to enforce the Board's order.

Tesla v. NLRB (5th Cir 10/25/2024) [PDF]

An opinion signed by 8 judges (a "plurality") ruled that ordering deletion of the tweet would violate the 1st amendment. They said, "Deleting the speech of private citizens on topics of public concern is not a remedy traditionally countenanced by American law."

They said they didn't need to reach the issue of whether the tweet was an unfair labor practice.

One judge concurred in the judgment only.

Eight dissenters said, "there is no First Amendment issue posed by the deletion remedy because, contrary to the plurality’s naked assertion, Musk’s coercive tweet was not “constitutionally protected speech.”