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.

38 Responses to NYC Councilman Proposes…A Ban on Superheroes?

  1. Christopher L. Bennett

    People in NYC can’t appear in groups wearing masks? So if that law were in effect in the Marvel Universe, would that mean that Spidey or Daredevil would be okay singly but couldn’t legally team up? And what about the Avengers? They have a mix of masked and unmasked heroes, so would they have to assign no more than one masked person to any team operating in the city? Although the phrasing is ambiguous. Does the law ban a group of people from simultaneously wearing masks, or does it ban any single person from wearing a mask while participating in a group activity?

    Also, does Iron Man’s helmet count as a mask, or as a piece of protective gear?

    In real-world terms, does the “no masks in groups” law make exemptions for things like, say, kabuki theater or costume parties? Well, I assume it would apply only in public places, but what if someone wanted to undertake one of the above activities in Central Park?

    • The NY mask law is N.Y. Penal Law § 240.35(4) and prohibits:

      Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities

      So it requires loitering, remaining, or congregating in a group in a public place. It wouldn’t apply to single superheroes, apparently. Actively patrolling would probably be okay, since that’s not loitering, remaining, or congregating, but staking out a public space is probably not. Brooding on a rooftop wouldn’t run afoul of it because it’s not public. It would probably be ordinary trespassing, though.

      And yes, there’s an exception for masquerade parties and “like entertainments.” Kabuki theatre and such is ordinarily in private theaters, but even if it were held outdoors in a public space, it would be okay with the appropriate permits. And it’s questionable whether such a performance would even be “loitering, remaining, or congregating.”

  2. Don’t we already have laws against assault, sexual battery, and so forth, no matter what the offender is wearing? What next, a law banning crimes by people wearing t-shirts?

    It just shows, again, that a politician’s response to any problem, real or imaginary, is “pass a law!”

    • Please avoid discussing whether the proposed laws are a good idea or not and similar real-world political topics. This is not the appropriate forum, and that kind of discussion is not why we made this post.

    • Will, of course a politician’s response to a problem is to pass a law. That’s what politicians do. It’s the tool they have been given by those who elected them to affect society.

      You may disagree with the law the politician wants to pass, but complaining that politicians try to solve problems by passing laws is like complaining that doctors try to solve problems by prescribing medication.

  3. These laws might not affect Spiderman et al. We don’t know the details of the laws yet, but from using the descriptions I think the key phrase is “costumed character”. Spiderman is not “appearing as a costumed character”, he is simply being himself. Anyone else dressing like him, though, would need his permission (or not be allowed at all, depending on which law).

    • That is a fair point, and we will have to see the precise text of the law. A blanket ban could be very broadly worded, though. And even a registration scheme could still trouble someone like Spider-Man even if he wouldn’t actually be breaking the law. The cops can’t be expected to know every costumed character in the world, so they’ll likely assume he’s just a character they aren’t familiar with. One can imagine the exchange going something like this:

      Police Officer: “Hey, you in the suit, sorry to interrupt your acrobatic show, but I need to see your costume license.”

      Spider-Man: “I don’t need a license. I’m not a character. I’m a superhero. This isn’t an acrobatic show. I’m chasing a criminal.”

      Police Officer: “Sure, buddy. That’s what they all say. How about we sort this all out downtown instead of causing a scene in front of the happy tourists?” *proceeds to arrest Spider-Man*

      • * But Spiderman simply dodges the cop with his spider-reflexes and web-swing away from there while the cop simply stares at him for a few seconds and called reforces*

        Granted that would case even more problem to spiderman if him simply leave like that, but do you really think that an average cop would be physicaly capable of arresting Spiderman?

    • It seems that depending on exactly how you define costumed character even the real Spiderman would likely violate this. The fact that Peter Parker created the Spiderman persona himself does not make it less of a character, one that is deliberately and specifically disasociated with Peter Parker and who does things that Peter Parker would not do (at least not without putting on the costume and assuming the character.)

      Someone who was using the mask as part of armor or for some other purpose than concealing their identity might have an easier time making that argument though. Tony Stark as Iron Man (in the continuities where he is open about it) could probably argue that he was not being a character other than himself and the fact that the armor which has life support, protection, and a HUD also happens to conceal his face is incidental.

    • Go see Kick-Ass. How do you tell the real Spider-Man from an imposter? Do you require him to use his powers? Let’s say Fake Spider-Man is a villian who is strong and he lifts the cop car. They know Spidey is strong, but does that prove he is the Real Spider-Man? What about heroes whose powers aren’t so distinctive? I don’t think the general public knows Daredevil is blind. To them, he’s just an athletic guy who goes kicking ass. How do you separate him from any other athletic guy?

  4. Given the topic of this post, I’d be interested in seeing a discussion of which NYC laws would come into play right now if someone suddenly developed superpowers, put on a costume and mask, and (let’s say) stopped a bank robbery and handed the suspects over to the police, without first giving anyone warning that they were a new superhero in town.

    • I don’t know NYC laws very well, but I suspect the answer is that no laws would be violated (though some might be relevant). Of course, it depends very much on how it was done.

      The above mentioned NY law against masks probably wouldn’t apply since he was alone and not loitering. The proposed NYC law discussed might come into play, but only if broadly written. A rule against loitering in a mask probably wouldn’t.

      The superhero could be accused of assault, battery, and false imprisonment (both tort and crime forms for all). But those all have exceptions that would likely come into play. Depending on at what point he interrupts the criminal, the superhero can probably claim defense of others to justify the assault and battery and citizen’s arrest would justify the imprisonment.

      That of course all assumes that the superhero actually intervened during or immediately after the bank robbery itself. If he tracked down the criminal after the robbery none of those apply.

      One other possible issue is that many banks post notices forbidding the wearing of hats much less masks inside. There might be an argument that while wearing the mask the superhero did not have permission to enter the bank and was thus trespassing. However, that seems a bit of a stretch. The bank might actually want to push it though. Many banks have a general policy of instructing employees to give bank robbers what they want and let police deal with it. That money a normal robber gets away with is trivial compared to the harm that could be done if attempting to resist caused injuries or deaths to employees and customers. For the same reason the bank would not want to encourage people (superpowered or not) to use violence inside the bank to try to stop someone and risk injuries.

      • Philo Pharynx

        And if he hands the subjects over to the police, he will be expected to identify himself to the police. He’ll be required to give his statement, and he may be arrested and processed even if the DA doesn’t press charges. After all, the police are there to investigate and find the truth and at the outset, they don’t know that the superhero wasn’t part of it.

  5. Depending on the wording, this could cause some real havoc with coplayers at NYCC. In the evening as the show closes for the day you can just see dozens of cosplayers walking along in a several block radius of the Javitts Center. (A surreal, but fun experience in itself.)

  6. Just thinking about the Fantastic Four… they are in costume. (I was trying to think of an example where they don’t wear masks.) Or are they in uniform? What is the different (and feel free to treat this as a legal question) between a costume and a uniform, esp in the case of teams like the FF?

    • And what about Doctor Who? His “costume” isn’t spandex – it’s pieces of clothing. A bit eccentric, but not so unusual that you couldn’t find it in a big thrift shop.

      • Ken Arromdee

        If you watch Japanese animation, and particularly boys’ action series, you find tons of characters who have unique powers and use them to fight bad guys, making them superheroes for most practical purposes. Many of them just happen to wear one suit of unusual clothes all the time that makes them visually distinctive, serving the same purpose for the audience as superhero costumes–but they’re not costumes. Doctor Who is the same way.

    • Seems to me the pressure would drive more superheros to the “Superman” model, where the costumed character is NOT in a mask but the alter-ego, if any, does. Or if not a mask/glasses sort of thing, a wig, fake mustache, etc.

      Or for a superheroine, she wears the star spangled skimpy spandex as a crime-fighter, and a burhka or other veil in the secret identity… in fact, very much the original “Diana Prince” bit with the hair bun, glasses, and severe military uniform.

  7. If the law bans appearing on NYC’s “in costume”, is the Naked Cowboy in the clear? Is every single other person on the street in violation?

    “Hey! You! The guy in the lawyer costume… “

  8. If they actually had real superheroes and wanted to keep them, they could phrase the law as a peddler’s license. In other words, they could make illegal to solicit or accept money, for any purpose, while wearing a mask, without being specifically licensed by the city for that. (The city license would presumably include copyright checks, and be canceled for misbehavior.)

    This would actually help in a world with _real_ superheroes, too. Because in such a world some muggers would create a fake ‘hero’ to foil their own pretend muggings in return for a reward, and this, at the very least, makes it clear rewarding masked ‘heroes’ is not acceptable. (This is also why masked heroes should not eligible for rewards for helping solve crime…without knowing who they are, there’s absolutely no way to tell if they were involved or not.)

    This is pretending that the world actually _wants_ masked vigilantes running around, which seems rather improbable.

    • “(This is also why masked heroes should not eligible for rewards for helping solve crime…without knowing who they are, there’s absolutely no way to tell if they were involved or not.)”
      Presumably, the guy being convicted knows… and is the weak point in this plan. “Explain it to me again, boss… I go to jail so you can have a reward? Wouldn’t it be easier and better for me if I just kept the loot?”

      • Chakat Firepaw

        “…Wouldn’t it be easier and better for me if I just kept the loot?”

        This is why you go hire a homeless guy to play the part of the crook:

        “You go and ‘rob’ someone, I stop you. You escape the first few times, then I bring you into the cops. Yes you go to jail, just in time to get off the street before the snow starts falling.”

      • James Pollock

        ““You go and ‘rob’ someone, I stop you. You escape the first few times, then I bring you into the cops. Yes you go to jail, just in time to get off the street before the snow starts falling.”

        “How about if I just use the loot to go someplace warm, instead?”
        “Why don’t we just split the loot? You know, and no one goes to jail, LIKE NORMAL CRIMINALS.”
        -or-
        “When I get my free lawyer appointed for me, because I’m homeless, and I tell him/her about this plan of yours, I bet I get a sweet plea deal for ratting you out.”

        If recruiting people to be criminals so that they could be “captured” for the reward was a functional business model, there’d be people doing it already, without any costumes or masks involved.

    • If it’s masked vigilantes a la Kick-Ass, then no. But if there are superpowered villains threatening the city, then I want superheroes to stop them.

      • I’m not sure about that. I would prefer an effective law enforcement able to stop them. Now depending on how powerful the supervillians were that might almost require that law enforcement have superpowers. But in that case, its better to have law enforcement recruit superpowered individuals, not condone vigilantes.

      • James Pollock

        My preference would have a very direct relationship to the law enforcement community’s tendency to use these capabilities in dealing with the everyday public. Sure, most of them are conscientious, professional and responsible. Some are not, and (alas) they don’t do a very good job of weeding the bad ones out.

      • In the real world, we have SWAT.

  9. I wonder how this would affect the New York Initiative, NYC’s local real life superhero group?

  10. Does the proposed law define “costume”? Is there a point at which clothing ends and costume begins? What about the numerous superheroes who’s costume is based on a suit and trenchcoat?

  11. I’m sorry, but all of this legislation and even laws that are already in place telling us we can’t wear masks is a direct violation of the very founding stone of the United States – the Freedom of Self Expression through any media necessary.

    • This “very founding stone” of yours does not exist, and never has. All rights have limits, generally where they intersect with other people’s rights. The people who wrote and passed the Alien and Sedition Acts were quite familiar with the Founding Fathers and their ideals, I should think.

  12. Just to give people some context, I remember the anti-mask law being used when the KKK wanted to hold a march through lower Manhattan. Then Mayor; Guiliani tried to block it but a judge ruled that they it violated their freedom of speech, so Guiliani, used the anti mask ruling in the hopes that losing their anonymity would scare them away. http://www.nyclu.org/node/1138
    Out of curiosity, can this be applied to the Occupy Wall Street movements if they are all wearing Guy Fawkes masks?

  13. @TimothyAWiseman.

    I am a RLSh – Real Life SuperHero – Take into consideration that police either join up to become good people, or join up to abuse their authority. I wouldn’t want any cop to ‘hire’ me… You need to think before you speak. SuperHeroes are regular, ordinary everyday citizens, who put these masks and gear on and selflessly put themselves in danger to protect you when the police can’t. Stop being so convoluted. There is no way the police can protect you. In fact they don’t. They’re supposed to be there as a deterrent and that has failed. Criminals laugh at the face of punishment and crime. Criminals go down into the history books. Not the police who stop them. When a Criminal dies, there’s another to take his place saying how much better he will be… We as RLSH stand tall against all opposition in this world who dares to try and harm the innocent people. I am the Bleach here to remove the stains of crime from the white shirt of justice. So that the shirt of justice can be put on once again and the people who wear it can live their daily lives with out fear…. The police are controlled by state government. The State Government is controlled through money and the Federal Government. Look at what the entire government as a whole has done to the hard working men and women of this country….. Cry me a River… Build a bridge and get over it…

    The masks and gear we all wear to protect you give us the protect we need to do our duties. We do this out of the goodness of our hearts.. while criminals run around raping, murdering, stealing and kidnapping…. If the police didn’t get paid… they wouldn’t exist. Welcome to the new world boys and girls…. We do this for FREE… they do it for a salary. I’d rather have someone who sincerely wanted to do something with out getting paid to do it, help me in a time of need.

  14. In the Powers universe; isn’t it illegal to wear a superhero costume unless you are an actual superhero?

  15. “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.”

    Couldn’t this conceivably make Halloween trick or treating a violation? After all, isn’t going door to door asking for something the very definition of panhandling?

    • No, trick-or-treating is simple extortion. Give me a treat OR I’ll pull a “trick” on you. Most of us just pay off; the candy cartels are the big winners.

  16.  “That money a normal robber gets away with is trivial compared to the harm that could be done if attempting to resist caused injuries or deaths to employees and customers. For the same reason the bank would not want to encourage people (superpowered or not) to use violence inside the bank to try to stop someone and risk injuries”.

    Timothy brings up an excellent point here, and one of the big reasons why the pro-registration side had a good potential argument in Civil War that was never really used well. When Sandman robs a bank and Spiderman shows up to stop him, the fight between the two probably causes more damage in terms of dollars than Sandman was stealing in the first place, possibly to the bank by itself (let alone the surrounding area). And that doesn’t take into consideration the risk to civilians that the fight creates. Sandman robs bank: maybe $1-$2 million lost (being generous). Sandman and Spidey get into fight: Easily much more than that in damage (and that assumes that the money that is the subject of the robbery isn’t destroyed or lost, or that Sandman escapes with it).

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