Today we take a look at reader questions involving the Patriot Act, Bruce Wayne’s funding of Batman, and revealing superhero costumes. As always, if you have questions or post suggestions, please send them to email@example.com and firstname.lastname@example.org or leave them in the comments.
I. Supervillains and the Patriot Act
Jake asks “Would it be possible to label certain supervillains as terrorists, and prosecute them accordingly?” I think the answer is here is yes, at least for violent supervillains. Here’s how “domestic terrorism” is defined by federal law in 18 USC § 2331(5):
(5) the term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
Some supervillains go as far as attempting to influence the policy or conduct of a government through intimidation, coercion, etc, but the real catch is probably the intimidation of a civilian population. Any mass attack on a civilian population likely counts. But “domestic terrorism” is merely a label; it does not define a crime. The particular crimes that make up terrorism are fairly complicated in their definitions, but the best example is probably defined by 18 USC § 2332b, which is very broad.
Section 2332b basically makes it a crime to “kill, kidnap, maim, commit an assault resulting in serious bodily injury, or assault with a dangerous weapon any person within the United States” or attempt, conspire, or threaten to do so under a certain set of circumstances. The circumstances are what set this apart from regular murder, kidnapping, etc.
The list of circumstances which qualify a given crime as terroristic is pretty all-encompassing. For example, it counts if “the mail or any facility of interstate or foreign commerce is used in furtherance of the offense.” That includes things like interstate roads, navigable waterways, airports, seaports, and telecommunications networks. Another broad circumstance is that “the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated.” Virtually any major terrorist act or attempted terrorist act would obstruct, delay, or affect interstate or foreign commerce, so that’s such a big catch-all that it’s hardly worth going down the rest of the list. Suffice to say that most violent supervillain attacks would qualify one way or another.
Some supervillains might escape liability under anti-terrorism laws if they stuck to largely non-violent crimes (e.g., stealing priceless gems from museums), but once violence, including attempted or threatened violence, enters the picture, then all bets are off.
II. Bruce Wayne Funding Batman
Several people have asked about the consequences of Bruce Wayne publicly announcing that he funds Batman and international ‘Batman franchises.’ The main issue here is whether this opens Bruce Wayne or Wayne Enterprises up to liability for any crimes or torts that the Batmen may commit. This is a complex question, and it’s one that we may consider at greater length in a future post, but we’ll sketch some possible bases for liability here.
Aiding & abetting, conspiracy, and RICO laws are also possible routes to criminal liability. The international Batmen might even be labeled as terrorists, which would put Wayne at risk of violating laws against supporting terrorism. But, to one degree or another, all of these theories require knowledge of the illegal acts being committed by the Batmen, whether it be actual knowledge or constructive knowledge (i.e. that Wayne should have known what the Batmen were up to or that he was willfully ignorant). Now obviously Bruce Wayne knows exactly what Batman is up to because they’re the same person, but proving that is a different matter, so long as his secret identity is secret.
Tort liability is a bit different. Since Wayne is not directly involved in any of the tortious acts (so far as the public is aware, anyway), one theory is partnership liability. The argument would be that Wayne / Wayne Enterprises is engaged in a partnership with Batman, whether express or implied, and thus the partners are jointly and severally liable for the tortious acts that result from the partnership. Of course, partnerships are ordinarily for-profit organizations, and I think a court might be reluctant to imply a partnership in the case of Batman, since there’s really no potential for revenue there. Many of the other factors are lacking as well, especially if Wayne takes a (publicly) hands-off approach to how Batman operates.
Another tort theory would be principal liability for the acts of an agent. Again, the problem here is that a sufficiently hands-off approach combined with the Batmen disclaiming any authority to act on behalf of Wayne or Wayne Enterprises may negate liability. The same story plays out if you consider employer liability for the acts of an employee. So long as Wayne and Wayne Enterprises avoid the perception that the Batmen are acting as their employees (which is pretty easy to do, really), that theory goes out the window.
So the bottom line is that, yes, there may be some criminal liability issues in theory, but tort liability is less of a problem. And it’s relevant that the criminal liability is largely theoretical because as long as the police and prosecutors are happy with the Batmen’s methods and results, then they have no obligation (at least in the US) to bring criminal charges, even if the Batmen (and thus Wayne) are technically committing crimes. So prosecutorial discretion is key here, as it so often is in comic books.
III. Revealing Superhero Costumes and Indecent Exposure
Jeremy asks whether spandex-clad superheroes might be liable under indecent exposure laws. Here I think the answer is probably no, at least in the US. Although many superheroes wear costumes that would be fairly revealing in the real world, the costumes do tend to cover all the important parts. Generally speaking, the law requires actual nudity or exposure, and a superhero outfit probably would not qualify, no matter how little it left to the imagination. That said, laws elsewhere in the world can be much stricter.
That’s all for today’s mailbag. Keep your questions coming in!