NYC Councilman Proposes…A Ban on Superheroes?

We don’t normally talk about real-world issues, but this was too good to pass up.   A New York City councilman has recently introduced bills to ban costumed characters in the city, or at least impose tight regulations on them. The bills are aimed at what’s apparently becoming a problem, particularly in Times Square. There was “Anti-Semitic Elmo,” and now someone dressed as “Cookie Monster” has been arrested for assaulting a toddler.  We should point out that the people involved were not related in any way to Sesame Street; they buy or make costumes and wander around Times Square trying to get paid for photographs with people.

One bill would ban costumed characters outright.  The other would require registration and the carrying of a permission slip indicating that the character was licensed from the intellectual property owner.

But does Councilman Vallone really want to ban Spider-Man? (By which we mean an actual web-slinging superhero, not someone dressed as the fictional character.  Obviously he means to ban the latter.) Because something like this would probably interfere with him as much as it would interfere with costumed panhandlers. As a person in a costume, Spider-Man would be subject to a ban if it were passed. And though he would certainly be able to show that he had permission from the creator of his character for the purposes of the regulatory proposal, he’d still be subject to arrest unless Peter Parker registered, which kind of defeats the point of the costume.

Unlike some of the other laws we’ve discussed (The Keene Act from Watchmen, the SHRA from Marvel’s Civil War), this is a local government passing the regulation, so it starts out from a better position than the federal government does in this area. New York City participates in New York State’s general police power and has the power to regulate anything that the federal and state Constitutions don’t say that it can’t.

But there are still problems here. The ban proposal would simply prevent people from appearing in public wearing costumes. As the article points out, there are First Amendment problems with that. Wearing costumes is generally considered to be protected expressive conduct, and the government probably can’t just ban it outright. But they can institute content-neutral restrictions on the time, place, and manner of such conduct, such as requiring registration or banning the wearing of costumes while peddling or panhandling. New York City already has so-called “mask laws” in effect, which restrict people from appearing in groups wearing masks, and many jurisdictions have laws which penalize wearing masks while committing other crimes.

We don’t know if this will hold up.  At the time of this writing the text of the bills are not available on the NYC Council’s legislation site, so all we have to go on are second-hand descriptions.  The bills have certainly not been passed into law, and they may yet be significantly amended.  And whether or not either bill is a good idea is definitely a political question that is beyond the scope of this blog (and its comments section).  But it is interesting to see life imitating art, even if the danger posed by these “freelance costumed performers” is quite a bit different from the dangers posed by masked comic book characters.