The National Labor Relations Board (NLRB) dismissed a legal complaint against The Daily Wire and co-founder Ben Shapiro Monday, ending a months-long investigation into Daily Wire labor practices after Shapiro posted a satirical tweet mocking strikers. The nonprofit civil rights group that defended The Daily Wire celebrated the dismissal as “a victory for social media users everywhere.”
The NLRB, the federal agency responsible for enforcing labor law, dismissed separate charges filed by attorney Joel Fleming and the Committee to Preserve the Religious Right to Organize. Fleming and the committee filed complaints against Shapiro after he shared news that Spotify employees were attempting to censor comedian Joe Rogan’s podcast, commenting, “I have a message for DW employees. If you ever attempt anything like this, you can consider your strike permanent.” Shapiro followed up his tweet with another hours later noting that “DW employees have the same NLRA protections as everyone else” with a photo of an NLRB’s employees-rights poster.
The New Civil Liberties Alliance (NCLA), a nonpartisan nonprofit to protect civil rights, represented Shapiro and The Daily Wire during the investigation.
“During the seven-month-long investigation conducted by NLRB, the agency made intrusive discovery requests that were irrelevant to the alleged NLRA violation, and it refused to answer simple, threshold questions about the Board’s subject-matter jurisdiction, personal jurisdiction, and lack of proper service,” the NCLA said in a statement announcing the NLRB’s decision. “After NCLA contested the allegations, Mr. Fleming, who has no connection to The Daily Wire or to Mr. Shapiro, withdrew his charge. NLRB accepted the withdrawal and outright dismissed the complaint from the Committee to Preserve the Religious Right to Organize due to lack of merit.”
“One hopes the outcome of this case marks a shift away from NLRB’s standard aggressive enforcement policy against individuals expressing personal opinions on social media,” the statement continued. “But unfortunately, NLRB has targeted other prominent figures at the request of random people who disapprove of messages they see posted on social media. Individuals have the right to speak freely and satirically to express their personal views under the First Amendment of the U.S. Constitution, and the government should not allow itself to be co-opted by those who seek retribution against people they disagree with.”
Joshua Herr, The Daily Wire’s general counsel, cheered the news. “NCLA did great work defending us from government overreach. In this case, frivolous complaints by a random Twitter user and a leftist lawyer whose legal education focused on Critical Race Studies co-opted a government agency to chill free speech by plaguing The Daily Wire for months with burdensome and harassing demands without accountability to a judge or jury,” Herr said in a statement. “We are grateful that NCLA stood up for us.”
The Committee to Preserve the Religious Right to Organize led a similar effort against the sports website Barstool Sports and its founder Dave Portnoy in 2019. The committee filed a complaint against Portnoy after he mocked media employees at another outlet attempting to unionize. As The Hollywood Reporter explained at the time:
“Heard @ringer employees want to unionize,” wrote Portnoy on Aug. 12 in a reference to Bill Simmons’ media group. “Little refresher how I feel about unions.”
Portnoy linked to a post he authored four years ago upon a vote by Gawker staffers to unionize. The post stated, “BAHAHA! I hope and I pray that Barstool employees try to unionize. I can’t tell you how much I want them to unionize. Just so I can smash their little union to smithereens.”
Rafi Letzter, a staff writer at Live Science, then tweeted out, “If you work for Barstool and want to have a private chat about the unionization process, how little power your boss has to stop you, and how you can leverage that power to make your life better: my DMs are open.”
Portnoy responded by tweeting, “If you work for @barstoolsports and DM this man I will fire you on the spot.”
Portnoy and Barstool settled the charges in 2020, agreeing to notify all Barstool employees via email and “physical postings” that they had the right to unionize. The settlement did not require that Portnoy or Barstool admit any fault in the situation.