Man of Steel

I just got out of Man of Steel, and there’s something of a doozy of a legal question pretty early on. There are some very mild spoilers inside, but no real plot points, so proceed at your discretion.

I. Background

The issue here is that when Lois Lane (in her canonical role as a reporter for the Daily Planet) shows up at the site of what we later learn is a crashed Kryptonian ship, she is met by Col. Nathan Hardy of the US armed forces, who doesn’t really want her there. In typical Lois Lane style, she confronts the problem directly, and says something to the effect that the only reason she’s there is that “We’re on Canadian soil, and an appellate court overturned your injunction.”

Say what now?

II. Civil Procedure

Let’s set aside the subject matter of the discussion for a second to do a brief review of civil procedure. An injunction is a court order for a particular party to do or not do something, usually the latter. So for there to be an injunction in place, the military must have sought such an order from a trial court. But from Lane’s description, it’s not entirely clear which court. And I don’t mean which Federal District Court, but which country. We are in Canada, after all, and there is a reference earlier in the movie to the site being manned by researchers and armed forces from other countries. That’s never made clear, so let’s just assume that since Lane is an American, and she’s talking to an American military officer, that we’re talking about Federal District Court. If we’re not, all bets are totally off.

Okay. Her statement indicates not only that the military has sought and obtained an injunction, but that she—or presumably the Daily Planet on her behalf—has fought that injunction in court, lost, filed a timely appeal, had that appeal heard, and had the appellate court throw out the underlying court’s injunction. At that point the military either declined to seek review by the Supreme Court or the Supreme Court declined to intervene.

Even from a strictly civil procedure standpoint, this is a little implausible. Assuming for the purposes of argument that the military would have sought an injunction in the first place—more on that in a second—the wheels of justice do not tend to move particularly rapidly. Litigation takes time. Years, frequently. Getting a single case from complaint to verdict inside of twelve months is moving along at a pretty good clip. Moving from there to a final appellate judgment in less than a second year is also pretty impressive. The record is most likely New York Times Co. v. U.S., the case about the Pentagon Papers, which the New York Times published on June 12-14, 1971. The Department of Justice sued immediately, and the case went from S.D.N.Y. (328 F.Supp. 324) on June 15, to the Second Circuit (444 F.2d 544) on June 23, to the Supreme Court (403 U.S. 713) on June 30, 1971. That’s about two weeks. Even Bush v. Gore took about a month.

But the Pentagon Papers was about the past publication of classified documents. This is probably a First Amendment case, but it’s more about the right to investigate than the right to publish. We’ll talk about why in a minute, but convincing the courts that an issue like that constitutes an emergency on the scale of New York Times Co. v. U.S. or Bush v. Gore sounds like a tough sell at best. The movie doesn’t really say one way or the other, but I took it as implying that the find was less than a few months old when Lane helicoptered in. So the timing is problematic.

III. Military Access Restrictions

Then again, why the military would need an injunction for this sort of thing is also unclear. The military generally doesn’t have to ask the courts for permission to exclude civilians from the areas in which it is operating. All those embedded journalists in Iraq and Afghanistan? They’re there at the Pentagon’s good pleasure, not of right. We’re not talking about places where the military has operations generally—the military does not gain jurisdiction by driving tanks around—but places where the military has established a base of operations, even a temporary one. The military has more or less absolute control over who is permitted to be there, and the courts aren’t going to say anything about it. If you walk up to a military base without a pass, you’ll be stopped at the gate and asked what you’re about. Even if the base has areas that are open to the public, trying to go anywhere that the base commandant says that you can’t will result in you being stopped. Persist, and you’ll either be physically removed from the base and told not to do that again or (and especially if this isn’t your first rodeo) arrested for trespassing on military property, a violation of 18 U.S.C. § 1382 and a misdemeanor. Good times. And no, the fact that we’re in Canada doesn’t count: the courts have interpreted the statute to include all those areas which the military “occupies and controls,” even those not part of the United States. You can’t just show up at Camp Rhino any more than you can Camp Pendleton.

So when Lane says that the military’s “injunction” was thrown out, it’s probably best to assume that she’s speaking casually and that what’s really happened is that the Daily Planet has sued for permission to access this site despite the military’s objections, not that the military has sought an injunction which the Planet opposed. There’s no obvious reason that the military would need an injunction for this sort of thing: it is statutorily authorized to restrict civilian access to military facilities.

IV. The First Amendment and Investigation

Unfortunately, changing the procedural details doesn’t really solve the problem. The First Amendment protects the freedom of the press. Contrary to popular belief, this does not mean that media companies exist in some kind of constitutionally protected category, and that people with press passes have rights that the rest of us do not. Rather, the freedom of the press simply means that one has a right to put in print anything that one would have a right to speak out loud. As this was most decidedly not the case for much of British history, one can see why the Founding Fathers sought to conflate the rights to freedom of communication in this manner. The courts have recognized that the First Amendment also serves to protect “rigorous public debate,” particularly where politics are concerned, but this is more of an animating principle than it is a concrete right in and of itself.

What this means is that lots of things that journalists would really like to be able to do are not actually protected by the First Amendment. The most well known example would be the so-called “reporter’s privilege,” i.e., the right of a journalist to decline to reveal the identity of confidential sources or to disclose their investigative work product. Courts do not like doing that sort of thing and invoke the First Amendment when they decline to do so, but this is one of the least absolute First Amendment freedoms. A journalist actually went to jail for refusing to disclose confidential sources related to the Plame affair, and both district and circuit courts ruled against her. Suffice it to say that the farther one gets from actual publication, the more attenuated one’s First Amendment rights become.

As to the fact that there is some kind of qualified privilege in most jurisdictions, if a court can find a reason other than the First Amendment for denying requests put to journalists, it will usually try to base its decision on those grounds. These include things like state shield laws, but courts also freely rely upon the discretion granted them in the federal rules pertaining to discovery (particularly Rules 22 and 37). Courts are sensitive to the power of discovery and do not take kindly to making third parties fish through archives. The fact that newspapers could easily be forced to do this on every single case is a good reason for the courts to view such requests skeptically completely independent of the First Amendment. If a litigant can come up with a really good reason, a court may permit the discovery, but the fact is that it is a journalist’s job to be where interesting things happen, so forcing them to give testimony whenever they see something interesting would actually make it impossible for them to do their jobs. That’s the kind of burden courts think about when deciding to grant discovery requests to third parties.

But now we’re talking about an even more attenuated claim of privilege than the disclosure of confidential sources or even non-confidential investigative information. While there is a general right to publish, and a qualified right to resist disclosure of the sources and fruits of one’s investigations, there is no general First Amendment right to access people, documents, or places. Take the Pentagon Papers for example. The First Amendment protects publication, so once the Times got hold of them, the courts weren’t going to stop them from being published. But the First Amendment does not guarantee you access to anything, so if the Times had asked for the papers, the government would have said no, and if it had sued for access, it would likely have lost. Leaks of classified information have been in the news for a few years now, but note that the people who might get in trouble are almost always the people who gave information to the media. The media organizations themselves have tended to receive little attention, which is partly why the recent flap about the Department of Justice investigating them was received so badly.

This is to be distinguished from things like the Freedom of Information Act. Congress may decide to grant access to various things via such mechanisms as the FOIA, but that is a statutory privilege and is strictly limited to those things covered by the statute. It does not, for instance, cover classified materials, and it provides no access whatsoever to facilities, property, or even people. It is strictly limited to documents, and even getting those can be one heck of a fight. But it is based purely on Congress’s legislative authority, not the First Amendment.

So we’re talking about a court ordering the military to permit a reporter to investigate, in person, in an active military site. That’s just not going to happen. Indeed, according to this article, the military basically doesn’t have to permit journalists access to military bases if it doesn’t want to, and the courts are usually deferential to the military on these issues. So even if the Daily Planet had sued for access to this military site, it’s beyond me why any court would have ruled in their favor.

V. Conclusion

So the way the movie handles this particular issue, i.e., justifying Lane’s presence on a military base, was basically botched. There’s really no way of making what she says even remotely plausible.

What makes this annoying is that there’s actually a pretty simple solution: Show Perry making a phone call to the Secretary of Defense (or maybe General Swanwick in order to avoid introducing another character), who just happens to be his college/drinking/golfing buddy, and who turns around and orders Col. Hardy to give Lane access. Kind of like how Richard Castle gets assigned to Det. Beckett’s department in Castle: he parties with the mayor.

Must the military permit access to these sorts of sites? No, probably not. But general officers and the Secretary can order such access if they want to. So instead of making up a line about some court (we know not where) countermanding an order (we know not what) to deny her access (we know not why), she can just say “Perry White was roommates with General Swanwick at Columbia, and they haven’t missed their quarterly golf outing for twenty years. You don’t like it, take it up with the Pentagon.” Boom. Done. And the audience gets a scene with Laurence Fishburne and Harry Lennix playing golf, which would be awesome.

30 Responses to Man of Steel

  1. My deepest question was what Clark was arrested for. My silliest question involved Kansas law regarding the adoption of a discovered baby, and what kind of birth certificate said baby would have, and what his citizenship status would be.

    • Do you mean what Superman was arrested for when they show him in handcuffs before handing him over to Zod? I don’t think he was arrested for a crime as such. He voluntarily gave himself up to the human authorities as part of a deal with Zod.

      Regarding the adoption: I don’t recall it being made clear how the Kents played that one. In some versions of the story they claim that Clark is their biological child that they gave birth to on the farm. A lot more believable in the 30s or 40s when a couple on a farm in Kansas might go months without seeing anyone else. A lot harder to pull that one off in 1980 or so.

      If they went the foundling route (i.e. claimed they found him in a basket on their doorstep or somesuch), I’m not sure what the process is or what it would have been in 1980. Family law is pretty far from my specialty, Kansas law—especially that kind of “what form do I fill out?” administrative law—is hard to research compared to, say, New York or California law, and Kansas law from 1980 doubly so.

  2. Alternatively, Perry’s contacts could’ve been in Ottawa, given the site’s on Ellesmere Island/Umingmak Nuna (yes, that’s the Inuit name for the place, and you can probably check with nunavut.ca or itk.ca to confirm this) and therefore Canada had to decide whether or not to grant the USDoD’s Northern Command access in the first place. Which apparently isn’t all that difficult given that right now, USNORTHCOM’s CO is also CO for NORAD.

    Or both Ottawa and Washington.

    • I guess that explains my question. Not having seen the movie, I was wondering why Americans would be setting foot (especially establishing a military base) on Canadian soil for, anyway. I’m sure the RCAF would invite American advisers, but a whole camp?

  3. I read Lois’s quote differently: “your injunction,” maybe referred to Col. Hardy having a personal injunction against Lois Lane, like to prevent her interviewing, photographing, or writing embarrassing articles about him. Would that change the nature of the procedure?

    • There isn’t really any such thing as a “personal injunction”. Injunctions are, by definition, court orders. If you’re talking about something like a restraining order, which is itself a form of injunctive relief, there’s no suggestion in the movie that Lois and Hardy have even met before. And the courts are very, very reluctant to issue injunctive relief where the First Amendment is concerned: that’s the very definition of “prior restraint”.

    • Actually, “injunction” also means “command”, so it could be that the officer has given a command to stay out, which the Planet has gotten overturned in a District court. (That seems to fit the dealogue).

      The other alternative, of course, is that Lois doesn’t know anything about legal procedure, and is using terms incorrectly. While some reporters (the ones who cover law, politics, and criminal justice) might have some understanding of how the system works, I would expect that a lot of them, like the rest of the population, don’t know how it works any better than was shown on various television programs… meaning they can list off the words of a Miranda warning without having to even think about it, and that’s about it.

  4. I believe it’s been mentioned here and in other places that Clark Kent (not Superman, which is an assumed identity), as a foundling child under the age of five in Kansas with no known or discoverable parentage, would be assumed a citizen of the United States and could easily be adopted by Ma and Pa Kent with a little paperwork. (Even easier if it’s done in a small town where everyone knows the Kents and would overlook irregularities, and if upon arrival he was not so invulnerable that he couldn’t be given immunizations and so avoiding other needle-bending hilarities.)

  5. Speaking of damage+fatality estimates, continuing a tradition begun with last year’s mask-movies, here’s something of interest:

    http://satblog.methaz.org/?p=1404/

    • Melanie Koleini

      I’m of the opinion the unofficial casualty estimates of Man of Steel are overestimated.
      Did thousands of people die? Almost certainly.
      Did tens of thousands die? Probably.
      Over 100,000? Well, yes, there were probably more than 100,000 causalities. But I don’t think the death toll approached anywhere near 1 million (not counting Kryptonians).
      The article you linked to assumes the (non-radioactive) equivalent a 20kt nuclear bomb went off in Metropolis (Manhattan). For property damage this seems reasonable but unlike properly, people can run for their lives. The destruction of the city took much longer (relatively speaking) than a bomb going off. The people in the first couple of buildings that collapsed didn’t have a chance to evacuate but assuming Metropolis has a subway to act as a ‘bomb’ shelter, I think a lot (maybe not the majority) of the people in the path of destruction could have made it.

      What bothered me most about the post Metropolis destruction scene was the lack of people. Where were all the walking wounded? Why didn’t Supper Man start using his X-ray vision to search for survivors in the rubble? (OK, maybe Zod distracted him, but still, he made time to kiss Lois.)

      • Given the nature of the gravity-based devices used to “Kryptoniform” Earth, I tend to wonder about the usefulness of Metropolis’ subway system in such a situation.

      • Melanie Koleini

        Bytowner,

        You might have a point about the subways but I still think a lot fewer than a million people were killed.

      • I think you misread our analysis – we didn’t say one million killed. Our “4 days after the event” (the time of our fictional editorial) assessment was 129 thousand known dead, 250 thousand missing, and upwards of one million including injured. Remember that even after 9/11 it was weeks before a reasonably solid number for dead, and injured was compiled, and many were carried as missing for months. In this case, not to be graphic, but just like 9/11 lots of bodies would never be recovered. By the way, in technical terms, a “casualty” is someone who is killed or injured severely enough that they require medical assistance, so yes, there would likely have been “one million casualties”, but only about 1 in 4 would have died.

        The underlying analysis, using New York City (which has over 4 million people crammed in to Manhattan during a working day) showed 280 thousand killed and 900 thousand or so with various injuries (ranging from life threatening to minor, like cuts from broken glass, etc).

  6. I figured the Canadian authorities had put conditions on the U.S. military’s access to the site, so if they didn’t allow guests that met the criteria, they wouldn’t be allowed to stay.
    I can’t speak to the procedural posture, but I can imagine litigation over whether Lois Lane met the Canadians’ criteria for access or not.

    • Yeah. Ottawa saying “our turf, our rules and if you put even one reporter’s nose out of joint, you’re outta there and we start talking with the rest of NATO” could happen. Not likely, but it could.

  7. I’m kind of wondering more about how Superman got that job at the Planet. Especially since Lois didn’t seem to know he was taking it.

    I mean, its possible that he got a degree in some relevant subject before travelling the world, but the way he tells his Ma that he’s going to become a journalist makes it sound like he forged at least part of his credentials. I imagine his references at least and his experience are bogus.

    Not really a legal question; just a musing.

    • Perry refers to Clark as a “new stringer”. How closely are the credentials of “stringers” usually vetted these days?

      Also, wondering if Perry figured out more than Lois believes him to know. Goyer’s hinted that this might be something to be explored in the next movie.

    • He may have also played up his eclectic experience to push the view he can give a new slant to the news, and Perry liked his samples enough to go with a bold break of credentials and established background.

  8. Well, that’s kind of my point. I’m not saying its a plot hole that he forged his credentials; I’m saying that forging his credentials seems like a very un-Superman thing to do (and on that note yes, he has killed in the comics before- several times in fact; and fights in the comics are if anything even more implicitly destructive than the stuff we see on screen).

    • It’s not that un-Superman. For all the talk about how he’s upholding truth (among other things), he lies all the time. It’s part and parcel of having a secret identity. (eg Lois – “Clark, where did you go during that earthquake that just happened? You missed Superman saving people from the building that was about to collapse.” Clark – “Oh, I, um, thought I left the oven on.”) Forging a back story is just an extended version of that. And other than the otherwise qualified person who didn’t get a job at the Daily Planet because Clark got it (assuming he doesn’t have some limited, actual qualifications, like writing for the school paper in college), as long as the articles he writes are good, no one is really hurt.

  9. It’s also fairly pointless. The military knows he’s Clark Kent; they can hardly fail to notice when Clark Kent’s byline crops up in the Daily Planet. Even by secret identity standards, this one doesn’t hold water.

    • Given some of the clues he dropped in assorted conversations over the course of the film, “33 years” and “raised in Kansas”, not to mention where the first fight on Earth started out, one does wonder how much the US Defence Department has already figured out for itself…and how much is a semi-public dance on Swanwick’s part to keep them from noticing how much they already know.

      We’ll see how that works out in the next movie, I suppose.

  10. While it’s true Superman has killed, the comics are so emphatic that this is a no-go I take it as writer error (like the scene in JLA 9 where he reduces a diamond creatures into lifeless coal). The one time he deliberately kills (Zod, again) it led to tremendous trauma which seems notably lacking here.

    • Its not a writing error. Zack Snyder and David Goyer both wanted Superman to kill Zod, and Christopher Nolan didn’t but changed his mind after they put Superman in a position where they felt killing was the only way. The idea was to establish WHY he has a no-kill rule; killing Zod DOES traumatise him and he’ll probably have to face the consequences of adopting a no-kill rule in the sequels, especially if he is going up against somebody like Lex Luthor in his squeaky-clean business mogul persona.

      In the comics Superman ends up killing even when its treated as a no-go. Usually they let him get away with it purely because he’s not killing anyone who resembles a human- Brainiac, Darkseid, Imperiex or Doomsday are a LOT more likely to die than someone like Lex Luthor or Zod. The no-kill rule for Superman is really just an extension of his incredible power- what would be “vigilante murder” for someone like Batman would be “vengeful god smiting a mortal” for someone like Superman, and if he is going against someone who is as strong or stronger than he is then odds are if he fails worlds will die, so he has a lot more weight on his shoulders when it comes to that.

      • When I said “writer error” I was referring to times in JLA away from the main Superman books–Gardner Fox didn’t watch that as carefully as the regular super-writers.
        I know why they had it happen, but I think they blew it. Oooh, big scream of anguish, he feels horrified–but a lot of people who feel horrified just rationalize what they did and do it again. They don’t really establish he’s reluctant to kill (lord knows, he makes zero effort to get anyone out of the line of fire) beforehand and they make no reference to any decisions after, so I don’t think it worked dramatically at all.
        Do agree with you on the vengeful God aspect. And if Superman doesn’t have a code against killing, winning becomes much too easy.

  11. I think it’s more logical that the Planet sued in Canadian courts.

    I actually found it odder they were apparently required to give her somewhere to sleep (Even if they deliberately gave her a crappy place.), and access to their _camp_.

    Also, yes, the movie sorta skips forward from Clark hearing about it to Lois being there, but there’s really no reason it couldn’t have been two years. The ship was _very_ deep in the ice…Clark and Lois only got to it because Clark heat-visioned it.

    They actually laid that out fairly poorly…better writing would have been something like a news report saying ‘leaks in the Canadian military confirm the reports that Canada discovered, last week ago, what appears to be a space ship under the ice in wherever’…and then put ‘Six months later’ on the screen, cut the helicopters, and have Lois talk about the Canadian lawsuit (Not an injunction) the Planet just won to get access to the site, and she didn’t particularly care if the US military didn’t like it.

    • The makers of “Man of Steel” avoided any clear indications of passage of time. This has pluses and minuses. A plus is that we can assume that the case has been tied up in courts for ages. Clark could have been there a long time trying to decide when to strike.

  12. WillMayBeWise

    What about the random vandalism? General Swanwick points out the cost of the drone ($12M) Superman destroys just to make a point. Surely willful and malicious destruction of public property isn’t a) justifiable, and b) legal?

    • I think Superman would argue that its justifiable because the US military is trying to spy on him, and not because he has done anything wrong or is necessarily likely to, but because of who and what he is. The US would probably counter that he is too powerful to take that chance with, but both sides would have a point. Superman might further argue that if the US or any other government found out too much about him they might try, say, to figure out how to copy his powers, or steal any Kryptonian tech he might have (which he does, in the Fortress of Solitude / that ship from the Artic). Or maybe try and figure out who his family is and use THEM against him.

      Probably not legal, but given the apparent fact that it was spying on him and the authorities aren’t likely to do anything about it, they might not press the matter. Especially since Superman is a) seemingly invincible, and b) just saved the planet.

      • WillMayBeWise

        As you point out, currently in the DC moive universe, there’s no force on Earth that can control Superman other than his own morality – something Superman himself made abundently clear.
        The US government officials would not only want, but in some cases feel it’s their duty, to find out as much as possible about Superman, for the reasons you state.
        What I’m wondering about is this: I maybe be wrong here, but Superman doesn’t automatically have the right to protect his privacy by violently destrying $12M dollars. Rather, a private citizen’s privacy is protected by the limits placed on of the authority of government officials. What action can a private citizen take against a Government official they perceive as exceeding their authority? Is destroying an electronic bug (worth about $40, and something we see in the movies and comics all the time) the same as destroying a $12M drone (which is doing the same job)? Then consider Superman could have sent the same message by damaging the control serfaces of the drone (so it couldn’t fly), writing “Hey Uncle Sam, this tryed to follow me home! Can I keep it? S”, then *gently* placing it virtually undamaged (and easily repairable) in front of the General.
        Like you, I think his actions are probably illegal, but (as this blog has pointed out in other articles) a law can only be enforced if a) the representatives of the law are willing to persue a conviction, and b) jury would be willing to convict him. Both (as you point out) unlikely.
        But maybe there’s a loophole which he can fly through to avoid any legal consequences…

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