Ben Domenech: Court Affirms My Right to Tweet Jokes

20 May 2022

CLAY: We’re joined now by Ben Domenech, host of his own podcast by the same name. You can get his newsletter at And, Ben, I’ll start off here, first of all, I think this is the first time we’ve had you on. You also do a lot of great work with Fox News, so thanks for making the time for us.

But I believe you have actual breaking news surrounding a ridiculous situation that arose when you were at The Federalist, which is another fantastic website out there, and what you said and what happened. Kind of fill in our audience, ’cause we teased that a little bit earlier in the program.

DOMENECH: (chuckling) Hey, it’s fantastic to be on with you. And congratulations on all your success. Look, as it turns out, today’s a fortuitous day to be talking to you because a decision has come down from the Third Circuit Court of Appeals that has been a long time coming. Several years ago in response to a unionization effort at a leftist publication known as Vox, I put out just a joke tweet that said to the folks at The Federalist…

I said, “Hey, the first one of you two who tries to unionize I send you back to the salt mines.” Now, I thought of this as being a fairly mediocre joke but was just one of those shouted-out things. It turns out that a couple of leftist trolls used this tweet to start a federal case against me using the National Labor Relations Board, which is the people who target folks who are trying to do anti-union activities or things like that.

A whole mess of faceless bureaucrats who came after me over the course of several years. And thanks to a group called the NCLA the New Civil Liberties Alliance this group of lawyers basically came to me and said, “Hey, we’ll be happy to defend you because we believe in free speech, we believe in the ability of people to tell a joke, and we don’t think that random people should be able to make a federal case out of it,” and today we won.

We won unanimously at the Third Circuit. They dismissed basically every argument that the NLRB and their bureaucrats had put forward, and I got official legal information from the Third Circuit that my humor is both bizarre and comical — officially — and no one could possibly interpret it as anything other than a joke if they were reasonable. So, it’s a big vindication for people who want to send out joke tweets and a big loss for those who want to weaponize bureaucrats to go after you for just expressing your sense of humor.

BUCK: Hey, Ben, it’s Buck. I just want to be clear on this. Was the position of these NLRB folks and these trolls that came after you that it wasn’t a joke, or was it that jokes are not allowed when there’s labor at stake?

DOMENECH: It was essentially both of those things, both that my thing was not a joke, that a reasonable person would construe it as an actual threat against unionization.

BUCK: Where are your salt mines, then, I’m just wondering?

DOMENECH: Well, this is the thing!

CLAY: (laughing)

DOMENECH: What I really thought is I’m missing out on a business plan now. I really needed to start investing in salt mining as a new pursuit. But at the end of the day the fact is that they basically said when it comes to unionization or when it comes to unions generally, you can’t tell any jokes; you can’t say these types of things, which is of course ridiculous.

And the thing that really made me angry and was the reason that I took a stand on this — and we’ve seen I mean, other places. You know, David Portenoy, for instance, over at Barstool had a similar incident to this where he ultimately settled and deleted the tweets and stuff like that. And the reason is that these bureaucrats come after you and they basically say, “We are just gonna bankrupt you.”

There were seven lawyers on the side of the NLRB all assigned this case that really could have done damage to me and would have really been very costly. And that’s the way they pursue these things. It’s not even if they want to get to a court and have to win an argument there. They just want the threat to force you to abide by their will.

And so that’s why I felt it was important to stand up — and thankfully now we’ve been vindicated unanimously. And I have to say I honestly hope that they appeal. I hope that they appeal to the Supreme Court (laughing) just so that I can have that level of vindication that, yes, you can tell a joke on Twitter even about things like unionization.

CLAY: Ben, the stock market has now gone negative under Joe Biden. We’ve got 40-year high inflation. We’ve got murder rates skyrocketing all over the country. The border is a sieve as Title 42 is about to be repealed. We all knew that Joe Biden was probably going to be an ineffectual and poor leader. Did you ever think it would get this bad, this quickly, and what are we in store for over the next couple of years with this guy’s presidency continuing?

DOMENECH: This is gonna be so much worse than even I thought it could be, and it has gotten so much worse than I thought it could get so much faster. And I think a big part of that has to do with the fact, Clay, that we are dealing with not just the Obama team, but kind of the C and D-level staffers from the Obama team.

You know, the people who were in these lower ranked positions who’ve now all come back and are now in key roles in government. And what that has ended up with a situation where these people are just out of their depth. Their policies are incoherent. They’re beholden to the left on their flank.

Otherwise, they’d be considering all the kind of things that we were really promised from this administration by a media that lied to get get Joe Biden and Kamala Harris elected they said that they would represent a return to normalcy, that they would take down the temperature of the culture war, that they would stabilize things.

It turns out that that was really just total spin, it was a lie, and instead they’ve ramped up the culture war, they’ve made things even more decisive, and they, frankly, have engaged in incoherence when it comes to their policy priorities. Look at just the single issue of the pain at the pump. Look at Joe Manchin flabbergasted that the Democrat Party seems to have the position officially now that it’s good to have expensive gas.

And that’s something that frankly, a lot of us knew that the people on the Obama team believed in; Obama himself even gave indications of that at various points. But we never really thought that they would go down the road so far that they wouldn’t be willing to compromise in any respect when people are just paying out the nose for any kind of summer vacation travel and things like that in the coming months.

They’re going to be thinking of the Democrat Party. And all they’ve got is leaning into the idea that, “Oh, well, it’s Republicans who are crazy. It’s Republicans who are racist,” at the same time that the latest Quinnipiac poll shows Joe Biden just cratering among Hispanic voters, the lowest ratings that we’ve seen for a Democrat presidents ever, in terms of some of the historical comparisons.

BUCK: Ben, can I ask you something before we let you go?


BUCK: ‘Cause everything you said… First of all, I’ve known Ben for 10 years. He’s a very astute… Isn’t that amazing, Ben? It’s been 10 years, buddy.


BUCK: A very astute political observer. And are Republicans positioning themselves, is the messaging, and your general sense that the momentum is building here for the red wave wipeout that… It’s not even something that Clay and I want. It’s necessary for the country, to sort of restore balance to the Force, if you will. Do you think they’re in the right place? Are you seeing what you need to see? Or do we need a kick in the pants on our side?

DOMENECH: The thing that I think Republicans can’t afford to do at this juncture is just to assume that if there’s an R after a name, they’re gonna win. They need to deserve the victory. And I think that that requires them to really lay out what they’re going to do if they get back in power.

And, frankly, people like Mitch McConnell would really like to just sit back on their laurels and be fine with sort of, “We’ll be in charge of committees now.” Oh, great. Well, what are actually gonna do when it comes to changing the border policy? Are you willing to go to the mattresses and hold on to those purse strings and not let taxpayer dollars flow into various programs and things that Joe Biden wants in order to get a change in policy?

Are you willing to go after Alejandro Mayorkas and actually impeach him, possibly, over the things that he has done and the lies that he’s told? Look, I think that Republicans need to lean into this agenda. I don’t think they can sit back and just let it come to them. I think that would be a mistake. They need to tell the country what they will do if they get back the reins of power in Washington.

BUCK: For more of Ben’s analysis go subscribe to his newsletter at Mr. Ben Domenech, always great to have you, sir. We’ll talk to you soon.

DOMENECH: Great to be with you both.

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