(snip)A perfect test case is one that doesn't conjure up 9/11 emotions-- judges are people too, even though they are supposed to look only at the law.
As I said, "I would not want to take this one on since the cartoons were terror-related. Since airport security in a "post-9/11 world" is a touchy topic, I'd want a case that was non-terror-related protected speech. Something like that could tip a judge on the side of 09/11/2001 instead of the side of 12/15/1791. The better case would have been the KHIAI bag."
First, I think you're saying this "graphic novel" qualifies as protected speech and I think we're all in agreement it doesn't come close to rising to the level of a threat to anyone's safety on any level. I agree, but let me be the idealist then; I would hope we can give the judiciary more credit than to be concerned that emotions would shade decisions on basic rights. Undeniably emotions play into decisions from time-to-time but might not this actually work the other way here? I mean, isn't the very idea that this "comic book" seems to paint the TSA (maybe even DHS?) in a negative light the very reason to believe that, if "judicial emotion" were to kick in, it might likely fall on the side of protecting speech that challenges the gov't's role/position? While I full well understand your thoughts here, consider "judicial emotion" in the context of "Fofana." Reading that case, Fofana was clearly up to no good. It wouldn't have taken much for an emotional judiciary to side with the TSA's lame argument something "dangerous" could have been in the "stiffer envelopes" and allow the evidence rather than recognize what was happening and exclude it.
(snip)...but I wouldn't want to give the court any emotional fodder on a test case. I am a realist in addition to an idealist. If the detention had been significant and well-documented, then it would make for a much stronger case, IMO.
I think the ACLU should know about this regardless-- I will stand behind anyone who wants to take up this cause, but that person isn't me.
"Significant and well documented" are problematic here, I agree. If the TSA were to deny it happened at all and assert that this guy was making it up to hype his comic books...it becomes a far tougher sell than Bierfeldt's case, of course, and, on that basis, I have to agree might not be a good fit with Bierfeldt's case.