Can a Tweet Break the Law if it’s “just a joke?” That is the Question.

By: Alex Glassman

Openly breaking the law is usually not a good idea.  However, what if your “crime” was “just a joke?”

Dave Portnoy is the founder of the “sports and pop culture website” Barstool Sports.[1]  On June 4, 2015, Portnoy wrote an article discussing how he would crush Barstool employees if they tried to unionize.[2]  On August 12, 2019, Portnoy tweeted out the link to this article when another media company discussed unionizing to remind his followers of his thoughts on a potential Barstool union.[3]  This might have been a bad ideas because threatening to fire an employee for attempting to unionize is against the law.[4]

Hundreds of people responded to Portnoy’s tweets stating he violated labor laws.[5]  Furthermore, when an individual responded to Portnoy’s tweet offering his services, Portnoy quote-tweeted and stated: “If you work for @barstoolsports and DM this man I will fire you on the spot.”[6]  That tweet sparked a conversation on Twitter as it received over 7,000 replies discussing whether Portnoy violated labor laws or was “just joking.”[7]

When this story became national news, Portnoy went on Fox News to discuss how his tweets did not violate labor laws because he was clearly “just joking.”[8]  Portnoy stated, “We are a comedy site, we’re pretty clear about that, we have no union at Barstool Sports, nobody is trying to make a union at barstool sports.”[9]  Although Portnoy might see this a joke and great for business, it may have serious consequences as the National Labor Relations Board launched an investigation and the Committee to Preserve the Religious Rights to Organize filed charging papers with the NLRB against Portnoy.[10]

Portnoy’s antics, while potentially a labor law violation, had an astoundingly positive impact for Barstool, as “Barstool received over 1.1 BILLION media impressions from [Portnoy’s tweets].  That’s over $22 million worth of free media at a $20 CPM[.]  @barstoolsports gained more Twitter followers yesterday than any other day this year. . . .”[11]  If there are no legal repercussions, this has the potential for other companies to follow suit to gain publicity.

So, the question remains: Did Dave Pornoy’s tweets break the law or was he “just joking?”

[1] Molly Freeman, Barstool Sports Founder’s Anti-Union Controversy Explained, ScreenRant  (Aug. 14, 2019), https://screenrant.com/barstool-sports-website-founder-union-controversy-explained/

[2]  David Portnoy, Gawker Writers Vote To Unionize, Barstool Sports (Jun. 4, 2015, 1:10 PM), https://www.barstoolsports.com/undefined/gawker-writers-vote-to-unionize

[3] Dave Portnoy (@stoolpresidente), Twitter (Aug. 12, 2019, 12:23 PM), https://twitter.com/stoolpresidente/status/1160949935593988096

[4] National Labor Relations Act, 74 P.L. 198 § 1, 49 Stat. 449 (1935) (codified as Amended at 29 USCS § 151)

[5] Portnoy, supra note 3.

[6]  Dave Portnoy (@stoolpresidente), Twitter (Aug. 13, 2019, 9:30 AM), https://twitter.com/stoolpresidente/status/1161268795278790658

[7] Id.

[8] Fox News (Fox News Broadcast Aug 14, 2019).

[9] Id.

[10] Jackie Salo, Barstool Sports founder David Portnoy under investigation over anti-union tweets, N.Y. Post (Aug. 18, 2019, 9:41 AM), https://nypost.com/2019/08/18/barstool-sports-founder-david-portnoy-under-investigation-over-anti-union-tweets/

[11] Gaz (@stoolsalesguy), Twitter (Aug. 14, 2019, 9:31 AM), https://twitter.com/stoolsalesguy/status/1161631406872760323

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