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THE ACLU WANTS TO SHRINK WORKERS’ SPEECH PROTECTIONS  
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Matt Bruenig
January 28, 2026
Jacobin
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_ The ACLU is trying to overturn a current NLRB precedent that
protects workers’ rights to complain about their working conditions.
_

,

 

Back in 2024, I wrote
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curious case at the National Labor Relations Board (NLRB) in which the
American Civil Liberties Union (ACLU) was pursuing exotic legal
theories that would, if adopted by the NLRB or courts, curtail the
rights of workers across the country.

This included the theory that the then–general counsel of the NLRB,
Jennifer Abruzzo, was illegally appointed and the theory that the NLRB
must defer to private arbitration proceedings even in the absence of a
collective-bargaining agreement. The former theory would have
invalidated a large amount of precedent established by General Counsel
Abruzzo, while the latter theory would have allowed employers to limit
the rights of workers to pursue unfair labor practice charges at the
NLRB.

The ACLU was pursuing these theories as part of a scorched-earth
effort to not provide back pay and reinstatement to one of its former
employees, Katherine Oh. Oh, along with her coworkers, had criticized
the way certain managers treated employees and the ACLU fired her in
response to those criticisms. In firing her, the ACLU claimed that Oh,
who is herself nonwhite, was being racist by criticizing her likewise
nonwhite bosses even though her statements contained no racial content
at all.

Both a private arbitrator and an NLRB administrative law judge
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have since ruled in favor of Oh and against the ACLU. The arbitrator
ruled that, in firing Oh, the ACLU had violated its own just-cause
termination policy, while the ALJ ruled that, in firing Oh, the ACLU
had violated Section 8(a)(1) of the National Labor Relations Act.
Despite losing in both forums, the ACLU still has not reinstated or
compensated Oh. Instead, they have opted to keep litigating against
their former employee by appealing decisions and contesting remedy
calculations.

Earlier this month, as part of their appeal of the NLRB ALJ decision,
the ACLU filed a troubling motion
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NLRB to allow the ACLU to file a supplemental brief to the board. In
this short motion, the ACLU makes it clear that it wishes to submit a
brief arguing that the Trump NLRB should overturn current NLRB
precedent that expansively protects workers’ rights to complain
about their working conditions in favor of narrower legal
constructions that make it much easier for employers to fire workers
for speaking up.

In so doing, the ACLU is targeting two discrete legal doctrines: (1)
Board law pertaining to when speaking out in front of colleagues is
considered protected activity, and (2) Board law pertaining to when an
employer has the power to fire someone solely because they disapprove
of the way an employee chose to speak out.

Meyers II

Historically, the first issue has been governed by _Meyers II_ (1986)
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the definition of protected concerted activity in the NLRA
“encompasses those circumstances where individual employees seek to
initiate or to induce or to prepare for group action, as well as
individual employees bringing truly group complaints to the attention
of management.” This would include things like speaking out about
working conditions in a staff meeting as an attempt to induce group
action about those conditions.

ATLANTIC STEEL

The second issue was historically governed by _Atlantic Steel _(1979)
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established a four-part test for determining when otherwise protected
activity is done in such an “opprobrious” way that it ceases to be
protected:

(1) the place of the discussion;

(2) the subject matter of the discussion;

(3) the nature of the employee’s outburst;

(4) whether the outburst was, in any way, provoked by an employer’s
unfair labor practice.

This test was applied fairly permissively so as to ensure that,
outside of very extreme examples, workers were free to express
themselves in whatever way they wished when raising issues about their
working conditions.

The first Trump administration overruled this in _General Motors
(2020)_ [[link removed]] and
established a new rule stating employers were free to fire workers
engaged in protected activity provided that the way they expressed
themselves is something the employer would have fired them for
regardless of whether they were talking about working conditions or
some other topic. Under this new rule, so long as an employer
generally prohibits impolite speech, it can legally fire someone for
complaining about their working conditions in an impolite way.

The Biden administration reinstated the historical approach in _Lion
Elastomers_ (2023)
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indicating its intent to argue that the board should go back to
the _General Motors_ rule and conclude that the ACLU could legally
fire Oh for her protected activity because of the way Oh engaged in
it. Under this sort of reasoning, because the ACLU claims to have very
bizarre standards for what constitutes egregious speech — which
apparently includes any speech that criticizes a nonwhite person —
they could claim that, under _General Motors_, they are free to apply
those bizarre standards to fire people who engage in protected
activity.

TERRIBLE FOR AMERICAN WORKERS

eedless to say, if the ACLU succeeds in having the board use this case
as a vehicle for overturning _Lion Elastomers_ and _Miller Plastics
Products_, it will strike a huge blow against the speech rights of all
private-sector employees. The range of things workers will be allowed
to say to the public and to their bosses without risking termination
will be significantly narrowed. This clearly flies in the face of what
the ACLU claims to stand for as an institution, but apparently it is
more than willing to torch the speech rights of tens of millions of
Americans if doing so allows it to avoid reinstating a single worker
that both an arbitrator and an NLRB ALJ have concluded they fired
illegally.

Of course, it’s not too late for the ACLU to avoid being used by the
Trump administration in this way. All it has to do is provide the
relief that two different legal forums have already ordered them to
provide and thereby end this case.

 

_Matt Bruenig is the founder of __People’s Policy Project_
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_Jacobin is a leading voice of the American left, offering socialist
perspectives on politics, economics, and culture. The print magazine
is released quarterly and reaches 75,000 subscribers, in addition to a
web audience of over 3,000,000 a month._

* ACLU
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* Union RIghts
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* Free Speech
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* NLRB
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