The third major story in Powers is entitled “Little Deaths.” It has to do with the investigation into the death of a superhero known as “Olympia,” discovered dead, and completely naked, in a crappy apartment in a seedy part of town. This story lends itself to a discussion on the issue of superheroes and privacy rights. James wrote a four-part series on privacy rights (1, 2, 3, 4) in December 2010, and we had a pair of guest posts on the related right of publicity (1, 2) in late 2011, but I don’t think either of us have come across another story that touches on these issues so directly.
Definite spoilers within, and almost right away. Like most of the Powers stories, this is a murder mystery, but it’s hard to talk about some of the legal issues without giving it away. If you haven’t read it and want to preserve the sense of surprise, go read it and check back. You have been warned.
Also: This story is a little on the racy side. We’re a family blog, but this post is basically a legal analysis of the public disclosure of allegedly private facts, specifically details of superheroes’ sexual histories. If that isn’t something you want to read about, maybe skip this one.
“Olympia,” whose real name is never revealed, is one of the Golden Ones, apparently a superhero group similar to the Justice League or the Avengers. He’s a former associate of the late Retro Girl, whose death was the subject of the series’ first story. He too seems to be your basic flying brick, though it seems that he lacks a pretty important required secondary power, specifically, his heart just ain’t up to it. He’s in the middle of a sexual tryst—more on that in a minute—when the titular “little death” stops being metaphoric, and he dies. When the cops show up, there isn’t any sign of a struggle and the body does not appear to have suffered any trauma, so someone suggests that it may have been natural causes. In the Powers universe, this does not seem to be unheard of. The medical examiner comments that it wouldn’t be the first case he’s seen, as these powers can put a real strain on the human body, which sometimes just. . . gives out. Which, it turns out, is what seems to have happened in this case.
But it takes a while for that to become apparent. In the meantime, Olympia’s death is hot news. Not only is the death of a major superhero of inherent interest, but Olympia had apparently been plagued for years by rumors of. . . well not sexual misconduct per se, but certainly sexual adventurousness. Shortly before his death, a woman had published a book entitled “I’m With the Cape” about a claimed three-year sexual relationship with Olympia. While Walker and Pilgrim are still at the scene, a woman shows up at the apartment and freely admits that she had dropped by after clubbing to have sex with Olympia. She alibis out, but the Walker and Pilgrim start to wonder exactly what this guy may have been into. The whole thing starts to sound a bit like the old saw: “To wives and sweethearts; may they never meet.” Sexual infidelity is a bog-standard motive for murder. Always has been. The media has a field day.
Then, they get a call to another crime scene. A woman, apparently wealthy, has seemingly committed suicide at her kitchen table, over a magazine article detailing Olympia’s alleged sexual activities. It is strongly implied that she was Olympia’s wife, and the disclosure of his ongoing infidelity, combined with reports of the maintenance of a seedy love nest, was simply too much for her to bear.
Thing is, Bendis and Oeming are creative enough to include that magazine article at the beginning of that issue. It’s an interview with Olympia, which he gave just two days before his death. In it, the interviewer is pretty direct about asking about the allegations in I’m With the Cape, and Olympia doesn’t really deny anything. The interviewer is pretty dogged about the sex questions, declining to pursue other lines of inquiry even when asked. Olympia calls him out about it, eventually ending the interview when it’s clear that this is all that’s going to be discussed. Significantly, Olympia completely refuses to say anything about his secret identity, and this is one subject the interviewer doesn’t push. But he’s relentless about Olympia’s sex life. The story implies that this article, in conjunction with Olympia’s death, sends his wife spiraling down to the point of suicide.
Which raises the question: what privacy interest, if any, does a superhero have in his sex life?
II. Public Disclosure of Superheroes’ Sexual Histories
As discussed previously, the public disclosure of private facts is tortious under certain circumstances. The Citizen Media Law Project has an excellent discussion about the tort. But our earlier post focused specifically on the revelation of a superhero’s secret identity. The analysis for the revelation of one’s sexual history is quite different.
Before we go any further though, we must note that no matter what the Greeks may have said, the dead have no particular right to privacy. So in this particular case, given that the magazine article was published after Olympia died, that particular article can’t give rise to liability for this tort. Won’t work; neither his relatives nor his estate could sue for that one. But we’re told that this is simply the latest in a line of publications, books, articles, TV spots, you name it, that delve into Olympia’s sexual history. What about those? Could Olympia have done anything about those before he died?
(NB: It is unclear whether Olympia’s relatives or estate could sue for invasions of privacy that occurred before Olympia’s death. Although it is almost universally true that the dead have no ongoing right of privacy, there are very few cases discussing whether or not a pre-existing privacy action survives the death of the plaintiff. That’s why we’re framing this as whether Olympia could have sued while he was alive.)
A. “Private” Facts
For a detailed discussion of the elements of the tort, check out the Citizen Media Law Project link above. One of the elements is that the fact disclosed must be private. One’s sexual history is generally assumed to be private, and revealing such facts about someone can serve as the basis for a successful invasion of privacy claim. But only if it actually is private. As the above link points out, there have been several noteworthy instances where courts have held in favor of defendants because the plaintiff’s sexual history was, if not actually a matter of public record, at least sufficiently well known to the public to eliminate any liability for talking about it. For instance, one of the men who helped prevent the assassination of President Ford sued several newspapers for publicizing the fact that he was gay, something his family and employer didn’t know. But because a whole bunch of other people did—his sexual orientation had been the subject of several articles in LGBT newspapers and he was a public friend of Harvey Milk—he ultimately lost his case. Similarly, when a stripper sued ABC for including an image of her working in a club as part of a news story, the court held that because anyone who paid the club’s entry fee could have seen her, the fact that she was working there wasn’t private. The courts don’t seem all that interested in assisting one’s attempts to keep a fact secret from a select group of people while telling almost everyone else. That sort of compartmentalization may be convenient, but it doesn’t seem to be legally protected.
So Olympia’s got a problem here. True, for most people, one’s sexual history is a private matter. But the way Olympia seems to have gained his reputation is from the girls he bedded talking to each other. One’s sexual partners comparing notes does not constitute public disclosure of private facts, so the more the list of one’s sexual partners resembles a phone book rather than a “Top 10” list, the harder it gets to argue that one’s sexual activities are really “private” facts any more. More than that, if one has already earned a reputation as a womanizer, that’s not a private fact anymore.
B. “Legitimate Public Concern”
That’s not the only problem here either. We’re all familiar with the celebrity tabloid rags. Talking about who did what to whom and where is how an uncomfortably large number of people make their living. This only rarely results in any kind of legal action. Why? Because the fourth element of this tort has to do with whether the information disclosed is a matter of “legitimate public concern.” Under what analysis could one’s sexual activities possibly be of legitimate interest to the public, you ask? Well, there are three ways of something being of interest to the public, and one of them has to do with the degree to which the person in question has “sought a position of public notoriety.” The courts aren’t stupid. If you want to be maintain any kind of privacy in the details of your life, you don’t get to bask in the glow of unrelenting media attention, publicly collect civic awards, or generally act like a celebrity. Or run for public office, for that matter. And you certainly don’t get to cruise the scenes of the aftermath of your heroic deeds looking for people to bed. Rule of thumb: courting publicity surrenders privacy.
So here’s the question: if a superhero has essentially become a celebrity and maintains a secret identity, how does that work in terms of public disclosure of private facts? Actually, just the way it does in the real world. This is, for example, why porn stars use stage names. They’re free to engage in a certain amount of publicity, and they surrender a certain amount of privacy in doing so, but those that choose to do so generally to maintain a distinction between their public personae and private lives. The press seems pretty good about respecting the stars’ private identities, particularly with respect to the identities of their families, while still subjecting them to what would be incredibly intrusive scrutiny for private persons.
So we’ve got the media treating Olympia as a celebrity, i.e., fair game for juicy bits of gossip just like movie and pop stars, and Olympia arguing in the interview that he’s just a regular guy, so who he sleeps with is nobody’s business. On the other hand, Olympia argues that who he has sex with is nobody’s business. Even if that were true, that only defeats one way that the public might have a legitimate interest in learning about it, i.e., it being of inherent value to society. Olympia argues that he’s not a public official, doesn’t hold any position of public trust, and is basically just a guy doing a job which happens to be a public service. But that really doesn’t help him given his love for the spotlight. Olympia’s sexual history is not of inherent value to the public, it’s true, but Olympia has sought out the spotlight so pervasively that he’s not really entitled to the kind of privacy he seems to want anymore. Yes, he has successfully maintained a secret identity, and revealing that might constitute an invasion of his privacy. But the media seems to have been pretty good about not prying into his mundane identity, and he’s firmly established his public persona in the public eye. The media isn’t asking who he really is, they just want to know who he’s sleeping with. And since it seems that there are at least even odds that he’s slept with any given woman in a hundred mile radius between the ages of eighteen and forty with strawberry-blond hair, that’s a pretty significant list of people. The disclosure of that fact probably wouldn’t constitute an invasion of privacy, especially if it’s limited to a discussion of Olympia in his public persona.
Once again, Powers continues to shine. It’s one of the first times we’ve seen a comic book actually wrestle with the balance between publicity and privacy as it pertains to a superhero. Most stories come down reflexively on the side of the superheroes’ privacy, but Bendis is to be given much credit for intuiting that a superhero that spends a lot of time in the spotlight isn’t that different from any other kind of celebrity, and where there are celebrities, there are tabloids. It’s also one of the only honest considerations of the possibility of superhero groupies. If rock gods have them, why not actual gods? We’ll return to Powers soon, after taking a look at another episode of Arrow.