Elon Musk Doesn’t Have to Delete 2018 Post About Tesla Union, Federal Judges Rule

Tesla CEO Elon Musk smiles as he addresses guests at the Offshore Northern Seas 2022 meeting in Stavanger, Norway, on Aug. 29, 2022. Carina Johansen/NTB/AFP via Getty Images

A social media post by Tesla CEO Elon Musk warning employees that they could lose stock options if they unionize constitutes protected speech and does not have to be deleted, a divided federal appellate court ruled on Oct. 25.

In a 9–8 ruling, the Fifth Circuit Court of Appeals overturned a 2021 order from the National Labor Relations Board (NLRB) that had declared the Musk post an unlawful threat and directed him to delete it.

“We hold that Musk’s tweets are constitutionally protected speech and do not fall into the categories of unprotected communication like obscenity and perjury,” the unsigned majority opinion reads.

The message in question, made in 2018 before Musk’s acquisition and rebranding of Twitter as X, was posted amid a unionization push by the United Auto Workers (UAW) at Tesla’s Fremont, California, plant.

It read, “Nothing stopping Tesla team at our car plant from voting union ... But why pay union dues & give up stock options for nothing?”

The comments prompted three pro-union Tesla workers and the UAW to file charges with the NLRB against Tesla, alleging violation of the National Labor Relations Act (NLRA), which gives employees the power to form or join unions.

Tesla had argued that the post was not a threat but rather a reflection of Tesla’s policy that differs from other automakers, where union workers typically don’t receive stock options. A three-judge Fifth Circuit panel disagreed in March 2023, but the full court ultimately sided with Tesla.

The Oct. 25 opinion did not reach a conclusion on whether the whether the post itself violated the federal labor law. It solely focused on NLRB’s overreach in ordering the post’s removal.

“Deleting the speech of private citizens on topics of public concern is not a remedy traditionally countenanced by American law,” the opinion stated. “The remedy for bad speech, after all, should be more speech, not enforced silence.”

“The NLRB erred in ordering the deletion of Musk’s speech as a remedy for unfair labor practices,” it added. “That alone is enough to vacate its order, so we do not reach the merits of whether the tweet constituted an NLRA violation.”

Tesla and the NLRB did not respond to requests for comment.

Musk’s post is one of many social media statements in which he has criticized the UAW, which represents more than 400,000 members.

In a follow-up to the original post, Musk claimed that the UAW “did nada for job security in last recession” and “dropped Fremont like a hot potato to protect their core base in Detroit.”

In 2022, Musk dared the UAW to hold a unionization vote at the Fremont plant, saying he wasn’t concerned about efforts to unionize Tesla because the company’s treatment of employees would keep them satisfied.

“I'd like hereby to invite UAW to hold a union vote at their convenience,” Musk wrote. “Tesla will do nothing to stop them.”

In November 2023, the UAW officially launched a union drive at Tesla and 12 other automakers, building on momentum from a six-week strike that forced the “Big Three”—Ford, General Motors, and Dodge-Chrysler parent company Stellantis—to agree to record wage hikes.

More recently, Musk and the UAW clashed over an Aug. 13 interview with Republican presidential nominee former President Donald Trump, who praised Musk for how he allegedly handles striking workers.

“You’re the greatest cutter,” Trump told Musk during a discussion about government spending. “I look at what you do. You walk in and say, ‘You want to quit?’ I won’t mention the name of the company, but they go on strike, and you say: ‘That’s OK. You’re all gone.’ So every one of you is gone.'”

It wasn’t clear which company Trump was referring to. The NLRB states on its website that “under federal law, you cannot be fired for participating in a protected strike or picketing against your employer.”

UAW President Shawn Fain, whose union has endorsed Democratic nominee Kamala Harris, accused Trump and Musk of advocating “for the illegal firing of striking workers.”

In a complaint filed with the NLRB, the union alleged that both men tried to “threaten and intimidate” workers who may want to exercise their right to join a union. The Trump campaign has dismissed such allegations as “frivolous” and a “political stunt” aimed at undermining the Republican candidate’s strong support among U.S. workers.