by James Daily
1. J. Michael Straozynski et al., Grounded Prologue: The Slap Heard ’Round the World, in SUPERMAN (VOL. 1) 700 (DC Comics August 2010).
2. One could be excused for wondering why this subject wasn’t covered in chapter 1, when we talked about constitutional law. It turns out that “criminal procedure” is sometimes called “constitutional criminal procedure,” because so many of the issues have their origin in the Constitution. But legal scholars generally recognize criminal procedure as being a distinct subset of constitutional law and treat it as its own subject. Generally speaking, “constitutional law” refers to the size and powers of the federal government, its interaction with state governments, and civil rights other than those involving criminal law.
3. U.S. CONST. amend. IV.
4. Brinegar v. United States, 338 U.S. 160, 175 (1949).
5. Id.
6. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
7. Kyllo v. United States, 533 U.S. 27 (2001).
8. Id. at 34–35.
9. Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J., dissenting).
10. Katz, 389 U.S. at 347.
11. Kyllo, 533 U.S. at 35 (comparing a “powerful directional microphone” with the thermal imager at issue in the case); United States v. Agapito, 620 F.2d 324, 330 (2d Cir. 1980) (making a distinction between permissible eavesdropping by the naked human ear and the impermissible warrantless use of listening devices); United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980) (“[O]bservation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.”).
12. See, e.g., Fullbright v. United States, 392 F.2d 432, 434 (10th Cir. 1968) (holding the use of binoculars to observe a backyard shed did not violate the Fourth Amendment).
13. Terry v. Ohio, 392 U.S. 1, 30 (1968).
14. Id. at 29.
15. Chimel v. California, 395 U.S. 752, 763 (1969).
16. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).
17. Michigan v. Fisher, 130 S. Ct. 546, 548 (2010).
18. United States v. Santana, 427 U.S. 38, 42–43 (1976).
19. Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
20. King, 131 S. Ct. at 1862.
21. Chandler v. Miller, 520 U.S. 305, 323 (1997). See also United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (upholding airport searches even without consent); MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006) (upholding random subway searches).
22. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989).
23. Id. at 665–66.
24. MacWade, 460 F.3d at 269 (citing Bd. of Educ. v. Earls, 536 U.S. 822 (2002)).
25. United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974).
26. The exclusionary rule has its origin in the English common law. See, e.g., Roe v. Harvey, 98 Eng. Rep. 302 (K.B. 1769). However, it was not until Weeks v. United States, 232 U.S. 383 (1914), that the rule as we know it today came into existence in the United States.
27. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391–92 (1920). The phrase “fruit of the poisonous tree” comes from Nardone v. United States, 308 U.S. 338, 341 (1939).
28. Silverthorne Lumber, 251 U.S. at 392.
29. Nix v. Williams, 467 U.S. 431 (1984).
30. Nardone, 308 U.S. at 341.
31. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
32. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). This is also known as the “good faith” defense.
33. United States v. Mendenhall, 446 U.S. 544, 554 (1980).
34. See, e.g., Cal. Penal Code § 836. New York makes a similar distinction between offenses (i.e., anything punishable by imprisonment or a fine) and crimes (i.e., misdemeanors and felonies). N.Y. Crim. Proc. Law § 140.10. Offenses include minor violations such as traffic tickets.
35. See, e.g., Cal. Penal Code § 837; N.Y. Crim. Proc. Law § 140.30.
36. See, e.g., Ind. Code Ann. § 35–41-3-3 (only felony arrests allowed); C.R.S.A. § 18-1-707 (crime must be committed in arresting person’s presence).
37. The exact wording of the warning can vary, but this example is typical.
38. The Fifth Amendment states that “No person…shall be compelled in any criminal case to be a witness against himself,” which the courts have interpreted as including a right to remain silent. U.S. CONST., Amend. V.
39. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court required that “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”
40. Miranda, 384 U.S. at 476–77.
41. Ultimately, the decision to testify is the defendant’s, and an attorney must let a client take the stand even if the attorney believes it would harm the client’s case. MODEL RULES OF PROF’L CONDUCT R. 1.2(a).
42. Kastigar v. United States, 406 U.S. 441 (1972).
CHAPTER 5
Tort Law and Insurance
In She-Hulk (Vol. 1) #4, Spider-Man sues J. Jonah Jameson for libel. 1 In #6, Hank Pym is threatened with a lawsuit for injuries allegedly caused by exposure to Pym particles, including violent mood swings and cancer. 2 More generally speaking, superheroes and supervillains do all kinds of things, which, if you or I did them, would tend to land us in civil court. This chapter focuses on the implications of tort law for comic books.
A “tort” is simply a wrong that is the grounds for a civil lawsuit, as opposed to a wrong that is the grounds for a criminal lawsuit. Criminal prosecutions are brought by the state for violations of the law and if a defendant is found guilty, the state can impose fines and jail time. But in many cases, the victim of a crime can bring his own lawsuit seeking compensation for his damages. For example, if a person injures someone in a bar fight, they can be both prosecuted by the state for assault and sued by the injured party for bodily injury. This chapter focuses exclusively on the latter, civil side of the equation.
Privacy
We discussed telepathy in chapters 1 and 3, but what about civil liability? When Professor X or Jean Grey read a person’s mind, are there grounds for a lawsuit based on the invasion of privacy? Similarly, many superheroes take great pains to keep their mundane identities secret. If a superhero was “outed” against his will, would he have a cause of action against the person who revealed his identity?
Both of these questions, and many more, have to do with privacy rights. 3 The Restatement (Second) of Torts describes the general principle of the right to privacy as follows:
1. One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
2. The right of privacy is invaded by
a. unreasonable intrusion upon the seclusion of another…; or
b. appropriation of the other’s name or likeness…; or
c. unreasonable publicity given to the other’s private life…; or
d. publicity that unreasonably places the other in a false light before the public.… 4
So right away we see there are a number of different ways the law recognizes that privacy may be invaded. Simply prying into another’s affairs can be actionable. But so is using another person’s “name or likeness” in unauthorized ways, or publicizing the details of their private life. This is especially true when the publicity might lead to false inferences about a person.
There is an Alabama case, Phillips v. Smalley Maintenance Services, Inc., 5 which, while obviously not dealing with telepathy, contains a number of holdings that are of interest here. The court focused
its analysis on the “Intrusion upon Seclusion” privacy tort, which the Restatement defines as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” 6 In considering that tort, the court held, first, that “acquisition of information” is not actually necessary to ground an invasion of privacy tort. Second, there can be liability even when information about the plaintiff’s private life is not communicated to a third party. Third, the “wrongful intrusion” tort does not require that the defendant be ignorant of the intrusion when it occurs. Perhaps most significantly, “One’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” 7
An important thing to remember here is that while superheroes may seem different from ordinary people, this may not matter in assessing their privacy rights. The offensiveness of an intrusion is judged by the standard of an ordinary, reasonable person, not a superhero. 8 Furthermore, “the intrusion must be of such a character as would shock the ordinary person to the point of emotional distress.” 9
Let us then consider the issue of telepathy. The Phillips ruling will be particularly important here. For starters, involuntary telepathic reading would certainly seem to be an “intrusion” on one’s “solitude” or “seclusion,” particularly into one’s “emotional sanctum,” and this is usually presented as “highly offensive” in most comic book stories where the issue arises. But more than that, the Phillips ruling might even apply to mere empathic gifts, where the user can determine another’s emotional state. Prying into other people’s hearts is just as problematic as prying into their thoughts. The telepath/empath does not even need to tell anyone about what he learns; the mere fact that the person who was read knows about the intrusion is enough.
Granted, some of these things will probably be important in determining damages. In the Phillips case, a woman was wrongfully terminated when she resisted the sexual advances of her boss and suffered chronic anxiety for which she underwent psychological treatment. The damages there are pretty easy to understand. But while a character who is briefly “read” by Professor X but who suffers no ill effects may be able to win a lawsuit, the character is going to need to introduce some evidence as to the nature of his injury if he wants to win more than nominal damages or an injunction against future mind reading. 10
But telepathy isn’t the only kind of privacy that comes up in comic books, and the issue of secret identities implicates a number of potential privacy torts. A superhero might be able to sue someone who is intruding into the superhero’s secret identity for invasion of privacy, if the intrusion was big enough. Merely asking about or even forcefully demanding to know a superhero’s identity would probably not “shock the ordinary person to the point of emotional distress.” However, actions like ripping off a superhero’s mask or demanding the answer at gunpoint likely would qualify, even if the superhero was impervious to bullets. 11 So might engaging in a consistent pattern of intruding into or investigating the secret identity at every opportunity in a stalker-ish way. One way to consider it is, would an ordinary, reasonable person feel coerced into giving up his or her secret identity? Given the danger posed to a superhero and his or her family by exposure, such coercion would cause severe emotional distress.
Or consider the situation in The Dark Knight, where the Joker puts pressure on Batman to reveal his true identity by threatening not only Rachel Dawes, but also random civilians. It is not hard to argue that a public figure of the sort that Batman had become in the film would reasonably feel coerced—Wayne would have revealed himself if Dent had not stepped in—by a threat like that one. So if anything, the unusual situation most superheroes find themselves in, particularly those who are more or less explicitly dedicated to public service, means the range of potential coercion adequate to ground such a tort would appear to be quite broad.
Even more, the scope of this tort is not limited to supervillains. A subplot of The Dark Knight involves a consultant threatening to go public with Batman’s real identity. While the Joker probably wouldn’t care all that much about being served with a civil lawsuit (Any volunteers for that job? No?), trying to blackmail someone like Bruce Wayne by threatening to go public is a spectacularly bad idea, even aside from the do-you-really-want-to-blackmail-Batman? bit.
Similarly, in the She-Hulk issue where Spider-Man sues J. Jonah Jameson for libel, it would have made sense to include a claim for invasion of privacy as well. Not only is it simply good sense to include as many potential claims as possible, 12 but that particular claim would probably have led to a very different outcome. In the story, Peter Parker is put on the stand because Spider-Man’s lawyer does not know that Parker is actually Spider-Man. 13 The attorney then names Parker as a codefendant in the suit against Jameson and the Daily Bugle, 14 convincing Spider-Man to settle, as there was an excellent argument that Parker was involved in the libelous conduct of the Bugle. But the invasion of privacy claim would probably have turned out differently because although Jameson had expressed a dedicated and obsessive interest in exposing Spider-Man to the world, Parker had expressed no such intention and had simply taken the kind of pictures that any public figure could expect to be taken.
All of that being the case, it is important to remember that the law makes a distinction between intruding on someone’s privacy and publicizing private information about someone’s personal life. The two are independent torts. And, unfortunately, most superheroes will likely have trouble pursuing the second one. The Restatement defines the publicity tort as follows:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
a. would be highly offensive to a reasonable person, and
b. is not of legitimate concern to the public. 15
The reason for (b) is the First Amendment. A 1983 California case discussed the issue in some detail:
[T]he right to privacy is not absolute and must be balanced against the often competing constitutional right of the press to publish newsworthy matters. The First Amendment protection from tort liability is necessary if the press is to carry out its constitutional obligation to keep the public informed so that they may make intelligent decisions on matters important to a self-governing people. However, the newsworthy privilege is not without limitation. Where the publicity is so offensive as to constitute a “morbid and sensational prying into private lives for its own sake,…” it serves no legitimate public interest and is not deserving of protection. 16
Note the phrase “matters important to a self-governing people.” The courts are interested in protecting the freedom of the press, in no small part because that is viewed as an essential ingredient in a democratic society. As a result, whether or not a particular superhero can recover for someone publishing the details of his secret identity probably depends on the superhero. Bruce Wayne is a billionaire industrialist who is involved in politics through donations and fund-raising, and his secret identity as Batman might well be a “matter important to a self-governing people” about which the public should be informed. But Spider-Man’s alter ego is just a working stiff, a news photographer and, perhaps most importantly, is often written as a minor. The public probably doesn’t have as much of an interest in knowing those details. Thus, whether or not a particular masked character will be able to recover for someone publicizing his secret identity will likely be a fact-intensive analysis wherein the court would balance the First Amendment interests in freedom of the press against the privacy interests of the individual in question.
Booster Gold discovers the perils of signing over his right of publicity. Dan Jurgens et al., When Glass Houses Shatter, in BOOSTER GOLD (VOL. 1) 11 (DC Comics December 1986).
There is another kind of invasi
on of privacy about which superheroes might be concerned: appropriation of one’s name or likeness, particularly in the context of advertising or merchandising. The Fantastic Four actually run their own gift shop, and would probably take it quite ill if someone else started to sell goods with their names, faces, or logos. 17 And there are several examples of superheroes endorsing products (e.g., Booster Gold and the Boostermobile), so it’s important to consider what could be done about it if a false endorsement were attributed to a superhero. Here we have two distinct torts to discuss: appropriation and the right of publicity. As the Nevada Supreme Court opined:
The distinction between these two torts is the interest each seeks to protect. The appropriation tort seeks to protect an individual’s personal interest in privacy; the personal injury is measured in terms of the mental anguish that results from the appropriation of an ordinary individual’s identity. The right to publicity seeks to protect the property interest that a celebrity has in his or her name; the injury is not to personal privacy, it is the economic loss a celebrity suffers when someone else interferes with the property interest that he or she has in his or her name. We consider it critical in deciding this case that recognition be given to the difference between the personal, injured-feelings quality involved in the appropriation privacy tort and the property, commercial value quality involved in the right of publicity tort. 18
Unlike intrusion and disclosure, appropriation does not concern private facts. Instead, appropriation is defined by the Restatement thusly: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” 19 Since private facts aren’t at issue here, this tort could apply to the appropriation of the name or likeness of the superhero identity, the secret identity, or both. Note, however, that many states have specific statutes for appropriation, and the definition given in the Restatement does not necessarily track the statutes or even state-by-state common law.
