Author Archives: James Daily

Book Review: Waller and Williams Criminal Law

I was recently asked by Lexis Nexis Australia if I would be interested in reviewing one of the books they publish.  Not knowing much about Australian law, I was happy to review one from the perspective of an American attorney looking for an introduction to the subject.  Given that criminal law is one of the most common subjects on the blog, I chose Thalia Anthony et al., Waller & Williams Criminal Law: Text and Cases (2013) to review, and Lexis Nexis Australia provided a free copy.

I. The Book

At over 1000 pages, Waller & Williams is a fairly comprehensive book.  Overall it’s broken into three parts: an introduction into the theory and justifications behind the criminal law (as well as a bit of criminal procedure), a section on specific criminal offenses, and a section on defenses.  Concepts are explained with a mixture of notes from the authors, statutory text, and excerpts from important cases.  This approach mirrors that found in many American casebooks and was very easy to follow.

Overall I was struck by how approachable the subject was.  Like the United States, Australia is a common law country.  This means that the general structure of the criminal law (e.g. the requirements of actus reus and mens rea) and the definitions of many crimes and defenses are the same or very similar to those in the United States.  Also like the United States, Australia is a federation.  This means that the Australian states have their own independent systems of laws separate from the Commonwealth’s.  Just as in the United States, this approach means that we can analyze a given problem in multiple contexts.

Just as the patchwork of criminal laws in the United States has resulted in a variety of insanity defenses in the different states, the same is true in Australia.  Further inspired by the international nature of Batman, Inc. (which included an Australian member, the Ranger), I decided to look at how supervillains claiming a defense of insanity would fare in Australia.

II. Insanity in Australia

In addition to coverage of the Commonwealth laws, Waller & Williams includes significant coverage of the laws in New South Wales and Victoria, the two most populous Australian states.  As in the United States, Australia followed the M’Naghten rules until recently, when some jurisdictions began adopting other rules.  The Commonwealth Criminal Code Act (i.e. the primary federal criminal law in Australia) uses a wider definition, found in § 7.3:

(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.

(8) In this section: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

As Williams & Waller explains, this is essentially the M’Naghten rules (subsections (1) and (2)) plus uncontrollable impulse and coverage of severe personality disorder (i.e. psychopathy).  This is notable because very few American jurisdictions recognize uncontrollable (or irresistible) impulse as a defense.

In Victoria the defense is called mental impairment rather than insanity, but still broadly follows the M’Naghten rules in its Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, § 20:

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that —
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

In Victoria, mental impairment covers neither personality disorder nor irresistible impulse.

Unlike the Commonwealth and Victoria, New South Wales still follows the common law M’Naghten rules directly rather than having an explicit statutory scheme.  However, “mental illness” is defined by statute:

‘mental illness’ means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

The Mental Health (Forensic Provisions) Act 1990, § 38(1) provides that, if the person tried ‘did the act or made the omission charged, but was mentally ill at the time’, the jury should return a ‘special verdict’ — ‘that the accused person is not guilty by reason of mental illness’.  Given the statutory definition of mental illness above, this seems broader than the M’Naghten rules.

III. What Does This Mean for Supervillains?

The bottom line seems to be that supervillains branching out into the Australian market (so to speak) would do well to stick with federal crimes, as the Commonwealth Criminal Code’s definition of insanity is considerably broader than either Victoria’s or New South Wales’s.  The inclusion of irresistible impulse and severe personality disorder would potentially enable supervillains such as Two-Face, the Riddler, and even the Joker to claim insanity.  As we discussed previously, these supervillains would find it very difficult to plead insanity in most American jurisdictions (and, indeed, in most Australian jurisdictions).  For example, the Joker is not insane by virtually any American definition, but he is likely a psychopath (as I understand it), and thus could be insane under Australian federal law.

It is interesting to note that the Australian federal insanity defense is broader than the state equivalents.  Broadly speaking, the opposite is true in the United States, particularly as a result of the finding of attempted presidential assassin John Hinckley, Jr. not guilty by reason of insanity.  In response to the verdict, the US federal government passed the Insanity Defense Reform Act, which made it much more difficult to successfully plead insanity in federal court.  Several states also restricted the insanity defense, but in general state rules and procedure remain more lax than the federal ones.

IV. Conclusion

Overall I found Waller & Williams easy to use and fairly comprehensive.  As with any casebook I wouldn’t rely on it as a sole source for advising clients (admittedly not a very likely scenario to begin with when it comes to Australian criminal law), but it is a useful introduction to and outline of the subject.

Nonhuman Rights in the News

Recently the Nonhuman Rights Project filed three suits in New York seeking to have chimpanzees recognized as legal persons, specifically for purposes of the writ of habeas corpus.  All three suits have been dismissed, which the NhRP expected and will appeal.

It’s interesting that the cases were filed in New York state court because the most recent major case in this area (Cetacean Community v. Bush) was filed in the Hawaiian federal court and appealed to the 9th Circuit.  The strategy here seems to be to focus on habeas corpus rights rather than rights under the Endangered Species Act and related laws.  New York seems to have been chosen because of its automatic right of appeal in habeas cases and because its Pet Trust Act allows animals to be the beneficiary of a trust, which the NhRP argues is evidence that the law already treats animals as legal persons in at least one way.

Now, we aren’t here to discuss the ethical, political, or scientific merits of these cases.  The real question is, “how does this affect Superman (and all the other intelligent non-humans in the comics)?”

As we discussed in our book, the law currently does not recognize any non-human animal as a legal person, and so far these cases affirm that.  The NhRP provided copies of the oral hearing transcript in one case and the judge’s decision in another.  From the latter we can see that the judge held (via handwritten note) that the habeas statute “applies to persons, therefore habeas corpus relief does not lie.”  Not a lot to work with there.

We get a much more detailed discussion of the arguments from the hearing transcript.  A major part of the NhRP’s argument focuses on chimpanzees’ cognitive sophistication and autonomy.  This is kind of a fraught argument because it relies on some difficult line-drawing.  Obviously not all chimpanzees are cognitively sophisticated: no doubt some have mental disabilities.  So then the argument must be made on the basis that chimpanzees “in general” or “on average” are sufficiently cognitively sophisticated or autonomous and then somehow as a result the rest of the chimpanzees should likewise be treated as legal persons.

This is much the same way as it is with human.  We (mostly) don’t deny human beings legal rights simply because of their lack of cognitive ability.  Membership in the class of human beings is sufficient.  History has demonstrated that whenever we try to draw lines things get really ugly, so we’ve mostly stopped doing so.

In this case the tricky bit is establishing that a) the chimpanzees involved in these lawsuits are cognitively sophisticated and autonomous enough and that b) all chimpanzees should be given the same legal status rather than creating some kind of cognitive test.

So what does this mean for Kryptonians, Skrulls, intelligent robots, and all the rest?  So far it means a continuation of the status quo.  Depending on how the cases turn out, it likely means that each species (and possibly even each individual) would have to have its legal personhood established on a case by case basis.  Just as the NhRP’s cases only focus on chimpanzees and explicitly do not seek personhood for bonobos, gorillas, and other apes (much less dolphins, African Grey parrots, or other notably intelligent animals), if the Vision sued to be recognized as a legal person that wouldn’t necessarily mean anything for the Skrulls or even, say, Ultron.

We look forward to seeing how these cases play out, although it will likely be at least several months before there are further developments.

2013 ABA Blawg 100

For the third year in a row, Law and the Multiverse has been selected as an ABA Journal Blawg 100 honoree.  Thank you to everyone who nominated us!  As with prior years there is also a vote for the best legal blogs in each category, which anyone can vote in.

Guest Post: Defending Loki

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe received a Criminal Justice degree from Xavier University and worked for 6 years as an auxiliary police officer. He later received his Juris Doctorate from the University of Cincinnati.

In the closing sequence of Marvel’s The Avengers, The World Security Council that evidently has the authority to order a nuclear strike on New York City, questions Nick Fury about the disposition of Loki. Calling Loki a war criminal, they ask Mr. Fury why he let Thor take Loki away when he should be answering for his crimes.

In this iteration of the Multiverse, evidently the bureaucracy of the United States has given way to the autocratic decisions of an infighting oligarchy that ignores due process and extradition laws. Well, at least Nick Fury does.

I think I would have rather seen a little more adherence to law and let Loki have his day in a U.S. Court. I say this, because as a criminal defense attorney, I believe there is a reasonable defense for Loki.

Loki’s Past, the Key to His Defense

Based on Loki’s actions and behavior, Loki’s best defense would have to be the truth—he is insane—but not a generic insane; Loki suffers from grandiose delusional disorder, a very complex psychosis where non-hallucination influenced delusions become core beliefs and the main motivation for daily activities.

Loki’s delusions began when he was very young. As his defense attorney, I would chronicle his delusions from early childhood on, showing how specific events helped create and support his grandiose delusions. I would produce expert witnesses and then introduce testimony from Loki’s past that would that Loki’s behavior is consistent with his delusions.

Establishing the Beginning of Loki’s Delusions

Loki was born the son of Laufy, king of the Frost Giants. Laufy kept his infant son in seclusion due to his non-giant size. Odin, leader of the Asgardian gods led his armies to victory against the Frost Giants where Laufy was killed in battle. Loki was discovered hidden in the giant’s main fortress. His size, considered diminutive by his own kind, was actually similar to Odin and other Asgardians. Odin took Loki back to Asgard and raised him alongside his biological son Thor.

Even though Loki was raised as a god in Odin’s court, he would eventually learn the truth; Odin, Loki’s father since he could remember, destroyed Loki’s true family. He would never be favored above Thor. He was a “god” by association, not by blood. Despite his home address, Asgardians did not respect him as they did Thor.

As Thor rose from favor to more favor, the contradictions in Loki’s circumstances drove him to seek out the dark arts and mischief.

Expert Witnesses

After going over his past, I would bring in a child psychiatrist as an expert witness who would explain how the tragic and ironic events in Loki’s life from infancy to adulthood led him to replace the realities of his life with delusions.

My next expert witness would be an adult psychiatrist who had interviewed Loki extensively. I would have him or her explain the complexity of delusion disorder to the court and describe Loki’s dominant delusions. Since I am not a psychiatrist, I don’t know everything a doctor would find. My assumption would be that Loki’s main delusions would be his belief that he is the rightful king of Asgard, that he is smarter than everyone, and that as king of Asgard he is the rightful ruler of Midgard (Earth).

Corroborating the Findings of the Experts

Expert witnesses are indispensable to back up an insanity plea but equally vital are the actions and statements of the accused that would back up the claims of the experts. My next witness would show examples of Loki’s behavior that matched the findings of my experts.

Some of the instances I would use would be the following:

  • Loki’s introduction in the Avengers, “I am Loki of Asgard, and I am burdened with glorious purpose.”
  • Loki demanding a crowd of people to kneel to him and when they do states, “Is not this simpler? Is this not your natural state? It’s the unspoken truth of humanity, that you crave subjugation. The bright lure of freedom diminishes your life’s joy in a mad scramble for power, for identity. You were made to be ruled. In the end, you will always kneel.”
  • You are, all of you are beneath me. I am a god, you dull creature, and I will not be bullied…
  • Bruce Banner’s assessment was also an interesting observation, “I don’t think we should be focusing on Loki. That guy’s brain is a bag full of cats, you could smell crazy on him.”

Interspersed between Loki’s moments of delusion are cases where he acts normal and even helpful. This is typical for grandiose delusion disorder since people suffering from the same exhibit normal behavior when they aren’t trying to advance their delusions.

Conclusions

This part of the trial would typically be quite lengthy because we are attempting to establish a severe mental illness that would explain his crimes and his mental state during that time. We would not dispute the facts of the case, only the intent of the accused and his ability or inability to distinguish the morality of his actions.

We may weave through our defense the “McNaughton rule.” This rule creates a presumption of sanity, unless the defense proves “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.” The McNaughton rule is the standard for insanity in almost half of the states.

In 1972, the American Law Institute, a panel of legal experts, developed a new rule for insanity as part of the Model Penal Code. This rule says that a defendant is not responsible for criminal conduct where (s)he, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” This new rule was based on the District of Columbia Circuit’s decision in the federal appellate case, United States v. Brawner, 471 F.2d 969 (1972).

One of the most famous recent uses of the insanity defense came in United States v. Hinckley, concerning the assassination attempt against then-President Ronald Reagan.

In 1984, Congress passed, and President Ronald Reagan signed, the Comprehensive Crime Control Act. The federal insanity defense now requires the defendant to prove, by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts” (18 U.S.C. § 17). This is generally viewed as a return to the “knowing right from wrong” standard. The Act also contained the Insanity Defense Reform Act of 1984, 18 U.S.C. § 4241, which sets out sentencing and other provisions for dealing with offenders who are or have been suffering from a mental disease or defect.

The Verdict

Proving Loki’s delusion wouldn’t be difficult. However, on top of his grandiose delusion disorder is his Asgardian culture that believes in the glory of war, utterly destroying one’s enemies, and a totalitarian monarchy, that would further qualify him as being “unable to appreciate the nature and quality or the wrongfulness of his acts,” under Federal guidelines.

Even though John Hinckley, Jr. was found not guilty by reason of insanity, he has yet to be given unsupervised released from his hospital. Loki would most likely receive similar treatment after his verdict. However, maybe after 100 years of therapy and counseling Loki could be cured and lead a normal autocratic warrior life in Asgard.

Wolff & Byrd: Counselors of the Macabre

For Halloween this year I wanted to point our readers to Supernatural Law, a comic strip, comic book and web comic series that has been around since 1979, written and illustrated by Batton Lash.  The most recent collection is The Werewolf of New York, which was funded by a Kickstarter campaign earlier this year.  The series features attorneys Alanna Wolff and Jeff Byrd, who represent a variety of supernatural clients, including zombies, werewolves, ghosts, and vampires.  The legal details are kept very accurate, largely thanks to Mitch Berger, the real-life attorney who consults on the series.

Because the stories are overtly law-related and the details are accurate, there isn’t much for me to say.  Anything I wrote would largely amount to summarizing the plot and saying “yeah, that’s about right.”  But I invite you to check out the web comic and if you like it, order a book or two.

The Law of Superheroes, Now in Paperback

The paperback edition of our book, The Law of Superheroes, is now available.  You can find it at Amazon, Barnes & Noble, Books-a-Million, Indiebound, and other online and retail booksellers.  The paperback edition includes a few corrections and updates as well as a new concluding chapter, so if you haven’t picked up a copy of The Law of Superheroes yet, check it out!

Great Pacific

Today’s post is a short write-up for Great Pacific, a new-ish series from Image.  The premise is ripe for legal analysis:  The story follows young billionaire oil heir Chas Worthington III and his efforts to start a new nation on a somewhat exaggerated depiction of the real-world Great Pacific garbage patch.  In the comic-book version the patch is a Texas-sized patch of floating garbage dense enough to walk and even build on.  In reality the patch is not anywhere near that dense—about 5.1kg of plastic per square kilometer—but I’m willing to grant writer Joe Harris the artistic license.  It’s a clever way to write a story about a new nation that isn’t a microstate.

Without spoiling too much in this first post, I’ll just say that the way the book handles the fledgling nation’s attempts at gaining recognition is pretty reasonable.  There are also references to some of the relevant treaties (e.g. the UN Convention on the Law of the Sea), and I’ll be taking a closer look at that in a second post.

If you haven’t picked up a few issues of Great Pacific, give it a try.  It’s a pretty good book, and I’m interested to see where Harris goes with the premise.

Citizenship and Jurisdiction in Ame-Comi Girls

Lately I’ve been working through our backlog of mailbag questions.  Today’s post comes from this email from Jesse, who offers this background:

In issue six of [Ame-Comi Girls] after having saved the world from Brainiac, the heroes discuss their next move when Steve Rogers Trevor, representing the U.S government, informs them—with the exception of Wonder Woman (who possesses Themysciran citizenship)—that they are subject to US law as American citizens which does not allow for vigilantism. He goes on to say that they are warned not to commit any more acts of vigilantism until legislation can be set in motion which would recognize them as acting under the United Nations.

Power Girl (who is of Kryptonian origin and the analogue of superman in this universe) suggests that they could operate from the Fortress of Solitude (Which apparently serves as a Kryptonian embassy located in Metropolis). However Steve Trevor informs them that the United States could ask the embassy to leave and insist that the heroes answer to American authority. (Particularly over the matter of the Batgirl and Robin in this universe being in high school. Something that the government frowns upon as they are still recognized as minors.)

Wonder Woman asserts that she will simply grant them Themysciran citizenship which would make them all subject to Amazonian law which would allow them to continue their acts of vigilantism without answering to American law.

Steve Trevor asserts that this would apparently work for a time but that there would be a number of legal issues if one of them was killed in action.

To counter this, Power Girl asserts that she has the authority to grant them all Kryptonian Diplomatic status as well as the Themysciran citizenship, making them not subject to American authority. Steve Trevor protests this, particularly regarding the fact that half of the team is under 21 but apparently, these actions cannot be countered and he leaves.

This all led to the following questions:

*Could a legislation making allowances for superheroes actually be made? Specifically one that recognizes superheroes as serving under the United Nations.

*Can a nation ask an embassy to leave? I know that this can apply to an ambassador but….

*Could another nation simply grant an American citizen citizenship/diplomatic status? Would something like that even be recognized or is there a process for relinquishing one’s American status?

*Finally, would the whole process even work from a legal stand point as a means for the heroes to continue doing what they were doing?

I’m going to address each of these questions in turn.

I. UN Superheroes

This part seems fairly straightforward.  The US could pass a law or resolution declaring that the US superheroes are acting as UN Peacekeepers, and the UN could pass an appropriate resolution accepting and deploying the superhero forces.  This approach would limit the heroes’ actions to countries that accepted the presence of the Peacekeepers, though.  It would probably also require Security Council approval, but we can ignore that political reality.

II. Kicking Out an Embassy

The short answer here is “yes.”  Contrary to popular belief, embassies are not actually little pieces of the guest country’s sovereign territory.  It would raise a tremendous diplomatic ruckus to do so, but a host country could evict an entire embassy.  Apparently the UK considered doing so in order to get at Julian Assange, for example.  But this is tantamount to completely cutting off diplomatic relations and would not be undertaken lightly.

III. Granting Foreign Citizenship

Sovereign countries can be as promiscuous with their citizenship as they like, and citizenship can be granted outside the normal naturalization process.  The US does it from time to time via private acts of Congress, for example.  The recipient of the foreign citizenship would not even necessarily have to relinquish their US citizenship first, nor would accepting the new citizenship necessarily result in loss of the US citizenship.  8 U.S.C. § 1481, the statute covering loss of citizenship, would not seem to apply if the foreign citizenship were voluntarily offered by the foreign government and did not require an oath of allegiance.  Care would have to be taken that the superheroes were not considered officers in the foreign military, though.

IV. Would This Even Work?

And this is where it all comes crashing down.  If the superheroes are operating in US territory, then the US has jurisdiction over them even if they aren’t US citizens.  And if they try to become foreign diplomats (via Themyscira or Krypton, say), then the US can simply kick them out.  If they refuse to leave then the US can exercise jurisdiction over them in the usual way.

If the superheroes decide to operate exclusively outside the US, then renouncing US citizenship would really get them very few benefits.  Eventually (after the usual penalty period) they would get to stop paying US income tax on income earned in foreign countries, and a few laws affecting actions abroad by US citizens like the Foreign Corrupt Practices Act wouldn’t apply.  But that’s about it.  Waiting for formal legal approval from the US (or whatever country they want to operate in) is probably the better approach.

As an aside: “vigilantism” isn’t a crime as such, at least not in any jurisdiction I’ve looked into.  Vigilantes certainly often commit crimes, to be sure, but it’s possible for a superhero to stay on the right side of the law (e.g. proper use of self-defense, no trespassing to find evidence).

She-Hulk v. Paparazzi

Today’s post was inspired by a question from the enigmatically-named Master182000, who recently reminded me that I hadn’t gotten around to it.  The question points to a 1985 John Byrne-era She-Hulk story (in Fantastic Four #275) in which She-Hulk is photographed while sunbathing on the roof of a tall building (maybe the Baxter Building).  The paparazzi used a helicopter to take the photos, the propellor wash of which blew away the towel she was covering herself with.  As Master18200 summarizes:

Later that day [She-Hulk] (in alter-ego form) and her friend track down the chopper, intimidate the pilot, and confront the photographer, who owns a tabloid called “The Naked Truth”. She confronts him, telling him since She-Hulk is a member of the SAG [as well as other show business unions] and images of her require her release before going to print. The photographer balks, claiming that She-Hulk is a ‘public figure’ and thus images of her are in the public domain and thusly don’t require She-Hulk’s release to print. He carries this argument forward until She-Hulk appears and crunches the photographer’s safe.

This led to the following questions:

1) Which party’s interpretation of the law is more accurate?
2) At what level of celebrity does a person lose 100% of their ‘media rights’ or become ‘public domain’ as the photographer suggests? Is this issue a settled matter at Federal law level or State law level?
3) Aren’t there issues with the way the pictures were taken? I don’t know much about aviation laws, but that chopper was pretty close to the building, close enough for She-Hulk’s clothes and stuff to be blown around.

I’ll take them one at a time.

I. So Who’s Right?

Well, technically neither of them.  There’s nothing special about being a member of SAG that would grant someone more rights than usual with regard to their image, unless SAG has negotiated an agreement with the other party (e.g. a movie studio).  Presumably the tabloid has no agreement with SAG or any other union.

On the other hand, public figures can still have an expectation of privacy, and the roof of a 30 story building, while somewhat exposed, is still a place where most people would have a reasonable expectation of privacy.  Furthermore, She-Hulk was covered up initially and only became exposed because of the close approach of the helicopter, which was intentionally done to blow away her towel.  The First Amendment wouldn’t protect that kind of action.

So She-Hulk is right in that the photographs can’t be published, but not for the reason she offers.

II. Public Figures, Invasion of Privacy, and the Right of Publicity

The notion of a person being a “public figure” mostly has to do with slander and libel, the standard for which for statements about a public figure is higher than for statements made about ordinary people.  Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).  As Chief Justice Warren described it in his concurrence, public figures are those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”  Curtis Publishing, 388 U.S. at 164.  As between federal and state law, this is a federal First Amendment issue.

Is She-Hulk a public figure?  Maybe.  It’s hard to get a sense of just how famous any particular comic book character is within their own universe (with a few exceptions such as Superman).  But even if she were, that would only matter for purposes of libel and slander.  And as the sleazy tabloid owner said, the pictures are accurate depictions of what happened, so truth might well be a defense to any libel or slander claim anyway.

But that’s not the claim She-Hulk should be bringing.  What she should be claiming is invasion of privacy (which, when it involves nudity, is a crime in many states) and violation of her right of publicity.  These would be state law claims.  All of this would be sufficient to claim significant damages if not prevent publication of the photos outright (although the courts are pretty loathe to engage in censorship).

III. Aviation Laws

Nowadays the regulations regarding helicopter flights in and around Manhattan are fairly strict.  There are no-flight corridors, weekend bans, and other rules.  But these are mostly new developments, often in response to noise concerns.  Thirty years ago things were a little more free-wheeling, as far as I can tell, and private helicopters may well have been free to more or less buzz buildings.  Of course, had been an accident it would likely have been very easy to establish the tabloid’s negligence or recklessness.

IV. Conclusion

In the US the paparazzi can get away with a lot because of the stringent protections of the First Amendment.  But (perhaps unsurprisingly) ambushing someone with a helicopter in a private space and forcibly removing their clothing is beyond the pale.  She-Hulk (as attorney Jennifer Walters) could probably have succeeded in court where She-Hulk (as She-Hulk) failed using traditional Hulk methods.  In the end, the pictures were published anyway, but the developer messed up the skin color so that the pictures didn’t look like She-Hulk.  A court case might have meant a more satisfying result.  At the very least the damages award (and possible criminal sanctions) might have driven the tabloid out of business.

The Wolverine: Grand Theft Superpower

When I saw The Wolverine I was reminded of this post on “Superpowers as Personal Property,” which considers the idea of treating “stealing” superpowers as theft.  If you’ve seen The Wolverine you probably know where I’m coming from.  If you haven’t, read on but beware: major spoilers follow.

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