Thxs for this. This was exactly the question I was going to ask you yesterday, but didn’t get around to it: whether the case law contained any discussion of the “humor defense” which, as you say, is not absurd on its face. And it does, and the board and courts have rejected it.
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The question is whether, in a "reasonable observer, in context" case, reasonableness & context are per se inadmissble. In the cited case-which sets no per se rule-there was a union election & actual testimony from an employee who felt threatened: https://cite.case.law/f2d/326/910/
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Just to be clear, your position is that the context of speech is per se inadmissible, & the ALJ is barred by law from considering whether a statement would be reasonably interpreted as a threat or not.
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You're grasping for a blanket rule that eliminates the reasonableness part of the standard. That's exactly my point as to why this case is nuts: it illustrates an agency drive to take reasonableness & factual context out of the picture entirely *in a speech case*
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