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First Amendment Right to Pass out Pamphlets

The character Lewis Wilson in Marvel’s The Punisher episode “Judas Goat,” was arrested on state courthouse steps for passing out pamphlets. The arresting officer questioned whether Wilson was protesting without a permit before falsely stating Wilson had gone for the officer’s gun. Let’s take aim at the civil rights violations…

Pamphleteering is a Protected First Amendment Activity 

Passing out pamphlets and one-on-one communications are expressly protected First Amendment activities. McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014). The United States Supreme Court has stated that passing out pamphlets “is the essence of First Amendment expression.” McCullen, at 2536, citing McIntyre v. Ohio Elections Comm’n, 115 S. Ct. 1511 (1995).

The issue for Wilson is whether the courthouse steps were a “traditional public forum” where he could pass out his pamphlets. A “traditional public forum” are places such as parks and sidewalks, where people can assemble for communication and public questions. Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 (1939).

On the Courthouse Steps 

The First Amendment gives people the right to ask government officials questions on courthouse steps, even though there isn’t a right to an answer for the question. Gonzalez v. Morse, 2017 U.S. Dist. LEXIS 168217, at *4-5 (E.D. Cal. Oct. 10, 2017). Furthermore, in a case where the Klan had a permit to speak on the steps to a courthouse, the Court noted that counter-protesters could have spoken against the Klan after the Klan’s event on the courthouse steps or the sidewalk during the rally. This dicta has no mention of the counter-protesters getting a permit for the steps. Grider v. Abramson, 994 F. Supp. 840, 848 (W.D. Ky. 1998). Moreover, there are cases where courthouse steps were opened up for public events, sometimes without permission from the county. In such cases the county could not deny use of the courthouse steps based on the message of the speakers. Higher Soc’y of Ind., Inc. v. Tippecanoe Cty., 223 F. Supp. 3d 764, 772 (N.D. Ind. 2016).

Pamphleteers do not have a First Amendment Right to distribute information in the lobby of courthouses. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003). Moreover, in a highly protected First Amendment case, pamphleteers did not have a right to target court employees at the courthouse entrance with their leaflets. See, Verlo v. Martinez, 2017 U.S. Dist. LEXIS 117418 (D. Colo. July 27, 2017).

Permit Required for Pamphlets? 

The sidewalk connecting to the courthouse steps definitely would be a traditional public forum. The actual courthouse steps are a little more complicated. The answer might turn on how the courthouse steps had been used in the past.

The steps potentially are not a traditional public forum, as we want court employees, attorneys, and litigants, to be able to enter the courthouse. Moreover, the courthouse steps arguably are an extension of the lobby of the courthouse, where pamphleteering would not be allowed. The police officer could have had a good faith belief that courthouse steps were for entry or exist for the courthouse, and directed Wilson to the sidewalk to pass out pamphlets.

There is a strong argument that the courthouse steps are a traditional public forum. Moreover, there is no way Wilson’s actions could be qualified as a protest requiring a permit, but a Constitutionally protected activity of two people passing out pamphlets. Wilson was not targeting court employees or harassing people. The core of his actions were to exercise his First Amendment rights to discuss his Second Amendment rights in one-on-one communications. The police officer asking whether Wilson had a permit to pass out pamphlets was a First Amendment violation, as there is no question that is protected free speech.

Regardless of whether Wilson could pass out pamphlets on the courthouse steps, the police officer falsely arrested Wilson. The [fictional] Lewis Wilson had a strong civil rights case. Wilson should have sought legal counsel and psychological treatment instead of becoming a terrorist.

We Made the ABA Journal Web 100 for Best Legal Blogs AND Podcasts

The feelings Jessica Mederson and I have with being named to the 2017 ABA Journal Web 100 for BOTH the Best Law Blog and Best Law Podcast categories can be described as deeply humbling and wanting to high-five everyone.

This is our fifth year being recognized by the ABA Journal and we are very grateful. Thank you to everyone who reads our blog and listens to our podcast.

The editors of the ABA Journal redefined the Blawg 100 this year to also recognize podcasts and social media into the new Web 100. The fact The Legal Geeks was recognized in two out of the three categories is extremely cool.

Here is what the ABA Journal said about our podcast:

“Jessica Mederson and Joshua Gilliland watch the latest superhero sequel and wonder how the courts would sort out the carnage. Heavy doses of comic books and sci-fi make this chatty podcast a guilty pleasure for fans of the Justice League and other defenders of justice.”

Here is what the ABA Journal said of our blog:

As superhero and sci-fi movies and TV are surging in popularity, this blog explores the plotlines of Hollywood projects and comic books for potential legal issues. Blogger and podcaster Joshua Gilliland’s geek cred is only rising: He co-hosted panels this year at San Diego Comic Con (for the third time) and San Francisco Comic Con. Gilliland’s favorite practice areas seem to be the Star Wars and Star Trek franchises and Marvel comics.

We have had an amazing year blogging, podcasting, and speaking at Cons. It is very rewarding to see the number of non-lawyers who attend a legal panel with thoughtful questions. Our adventures this year have included:

An X-Men Mock Hearing on the Constitutionality of Sentinels Hunting Mutants at San Diego Comic Fest

Rogue Law, Legal Analysis of Rogue One at San Diego Comic Fest

I am One with the Law: The Law of Star Wars at Nerd Nite LA

I am One with the Law at the Appellate Judicial Attorneys Institute

Star Trek: Law – The Final Frontier at Silicon Valley Comic Con

Sweet Christmas! A Mock Trial to Prove Luke Cage is Innocent at San Diego Comic Con

Judges on Star Wars at San Diego Comic Con

Defending the Defenders at San Francisco Comic Con

Jack Kirby on Civil Rights at San Francisco Comic Con

The Law Will be with You: The Law of Star Wars at San Francisco Comic Con 

We want to thank everyone who has joined us for our adventures the past year. We thank the ABA Journal and their judges for being an honoree in the Best Blog and Podcast categories. A very special shout out to Illusive Comics and Games, where we have recorded many podcasts, and Time Tunnel Toys, for their help in finding vintage action figures for blog posts. This year has been exceptional and we look forward to the future.

About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

About the ABA:

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

The Colossal Defense of Others in Seoul

Nacho Vigalondo’s Colossal is everything science fiction should be, with people with real faults finding themselves connected to a giant Kaiju and robot in Seoul. If you have not seen the film, check it out on Hulu now. This post will analyze the gigantic spoilers from the end of the movie, so go stream the movie before reading any further.

Fictional Factual Background

For those who did not watch the film and pressed on, the protagonist Gloria is unemployed, has huge problems with drinking, getting black out drunk, and partying all night. After her boyfriend threw her out of his apartment, she returned to her parents’ empty home in New Hampshire. Over the course of the film, Gloria learned whenever she entered a playground that a giant monster appeared in Seoul, South Korea. The monster was Gloria’s avatar, thus whatever she did in the park, was also done by the monster in Seoul.

It is later learned that Oscar, a childhood bully turned creepy hoarding stalker, appeared as a giant robot in Seoul whenever he entered the park.

In the climax of the film, Gloria went to Seoul, because Oscar had begun a routine of tormenting Seoul, with mass murder and destruction by stomping around the playground in New Hampshire. Gloria played a hunch that if she was in Seoul, her monster would appear in New Hampshire.

Gloria was correct and stopped Oscar’s robot in South Korea by having her monster throw Oscar to his death in New Hampshire.

The Defense of South Korea

Gloria’s defense of South Korea from Oscar raises a colossal number of legal issues. Regardless of the fact that Oscar was likely violating the Logan Act by personally threatening the lives of a United States alley, Gloria killed Oscar in order to defend everyone threatened by Oscar’s rampage in South Korea. Was Oscar’s death legally justified?

As Oscar was killed in New Hampshire, New Hampshire law will apply for determining whether the death was justified. This is somewhat complicated with a Schrodinger’s Cat effect, in that Gloria was in Seoul at the time of Oscar’s death in New Hampshire, while her Kaiju avatar committed the killing.

New Hampshire law states that a person is justified in using deadly force on another if they reasonably believe the attacker is about to use unlawful, deadly force against a third person. N.H. Rev. Stat. Ann. § 627:4(II)(a). However, deadly force is not justified if the threatened person could retreat in complete safety from the threat. Retreat is not required if the threatened person is in their home and was not the initial aggressor. N.H. Rev. Stat. Ann. § 627:4(III)(a).

The law is silent on Kaiju avatars used in the defense of others. Applying the black letter text of the statute, Gloria could reasonably believe Oscar was going to use deadly force against the population of Seoul. Oscar had stomped around the playground/ Seoul the day before to cause mayhem and inflict death on South Korea. As such, the population of Seoul was reasonably in danger of death.

The population of Seoul was clearly not the aggressor in Oscar’s attack. Moreover, there was no place for the population of Seoul could retreat to, short of abandoning their city. While New Hampshire law has not ever required the population of a foreign country to retreat before, there is a colorable argument that the homes of those in Seoul being threatened with destruction, meant the homeowners did not need to retreat to another city. The citizens of Seoul had a right to be in their homes, thus should not have to retreat from their city from Oscar’s robot avatar.

Gloria used her monster to pick up Oscar and throw him, almost certainly resulting in his death. Arguably the threat to Seoul had passed when Oscar was captured. However, retraining Oscar would only last as long as Gloria’s Kaiju avatar held Oscar. Given the fact Gloria was in South Korea and Oscar in New Hampshire, Oscar could immediately become a reasonable threat to Seoul once he was put down by entering the playground again. While defense of others can be argued, throwing Oscar could be viewed as unjustified murder, due to the lack of the imminent use of deadly force by Oscar. Regardless, Gloria has a strong alibi if charged with murder, as she was outside of the United States at the time of Oscar’s death.

Colossal Fun

The world needs more creative science fiction movies. Colossal is about flawed people who are in out-of-this-world situations. The person who starts out as the out-of-control party girl decided to do what is right when faced with a threat. The person, who appeared to be a decent and kind, was actually a violent creep. The movie is thoughtful and entertaining, with giant monsters, and colossal legal issues.

Now, as to the matter of Gloria’s liability for monster damage in South Korea from her dance attack, hope she has good homeowner’s insurance and equity in her parents’ home, because the damages would definitely exceed her policy limits.

Could Karen Page Tell Homeland Security about the Punisher?

In Marvel’s The Punisher episode “Gunner,” Homeland Security Agent Dinah Madani questioned Karen Page about the Punisher Trial. Madani’s questioning about a former client of Nelson & Murdock is highly problematic, because Karen easily could have disclosed confidential information learned from her work on the Castle case.

New York attorneys have a duty to protect the confidential information of former clients. See, NY CLS Rules Prof Conduct R 1.9 and NY CLS Rules Prof Conduct R 1.6. Attorneys can use client confidential information to prevent reasonably certain, substantial bodily harm, or prevent a client from committing a crime. See, NY CLS Rules Prof Conduct R 1.6(b)(1) and (2).

Karen worked as a legal assistant for Nelson & Murdock. The law recognizes those who work for attorneys as “privileged agents.” United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961). As such, Matthew Murdock and Foggy Nelson’s duty to protect confidential information would apply to Karen Page, as she was their agent.

Karen questioned Frank Castle on his past, which is generally accepted for a paralegal or legal assistant to do in a case. (See, Daredevil, season two, episodes “Semper Fidelis” and “Guilty as Sin”). However, Karen also gave Castle advice on what she thought Frank should do for his defense, which crosses the line into Karen giving legal advice, which violated the rule only lawyers can give legal advice. NY CLS Jud § 484.

What does this mean for Agent Madani’s questioning of Karen? First, Karen had a duty to not disclose confidential information about Frank Castle, unless that information specifically could be used to prevent a crime, death, or substantial bodily harm. Secondly, the legal advice that Karen gave Castle is not protected, because Karen is not a lawyer and cannot give legal advice. Third, Karen was also flirting with aiding Castle in committing crimes by providing him information after her employment at Nelson & Murdock. Those discussions would not be protected by any privilege.

How should Karen proceed in talking with Homeland Security? With a very skilled lawyer to help her navigate what was confidential and what she could disclose.

Legal Target Practice with the Punisher

Marvel’s The Punisher on Netflix makes every shot count. The series has the most character development out of all of the Marvel shows on Netflix. It takes the Punisher beyond being the revenge driven killing machine, diving into the character’s motivations, history, and personal code. The show is extremely violent, which is balanced against understanding service members living with PTSD and recovery from grief.

The Punisher is target practice for legal issue spotting. Here are just a few of the crimes depicted in the series.

Illegal Gambling

One of the first crimes seen is a small gang robbing a mob gambling ring. Gambling under New York law is when a person risks something of value upon the outcome of a contest of chance, on the agreement they will receive something of value based on the outcome. N.Y. Penal Law § 225.00. The mob run poker games were a criminal enterprise, which is a group of people with common purpose engaged in structured criminal conduct. N.Y. Penal Law § 460.10. The mob organizers likely could be proven guilty of promoting gambling in the first degree, because they had profits of more than $500 per day from their games. N.Y. Penal Law § 225.10

Torture

There is A LOT of torture in Punisher. Multiple characters are tied to chairs for beatings, including Carson Wolf, Micro, and Frank Castle.

The relevant New York laws for torture are Menacing and Assault. Menacing is when someone places another person in a reasonable fear of physical injury, serious injury, or death, by displaying a deadly weapon. N.Y. Penal Law § 120.14. Menacing turns into Assault once physical contact has been made. N.Y. Penal Law § 120.10.

Reckless Driving

The episode “Resupply” has a car chase with a 1967 Mustang driven by DHS Agent Dinah Madani vs. the Punisher in a recent model Mustang. It is a great car chase, but nevertheless, raises the issue of “reckless driving.” New York defines this prohibited activity as driving in a manner that “unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.” N.Y. Veh. & Traf. Law § 1212. While the streets had been cleared for the DHS sting operation, the charging Mustangs playing chicken was a clear risk to others on the roads and not proper law enforcement procedures.

Murder of Federal Agents

There is a staggering number of DHS Agents killed by members of Anvil. It is a crime to kill an officer or employee of the United States. See, 18 U.S.C.S. § 1114. As the Federal Agents were all shot in gunfights in the performance of their duties, the deaths arguably were willful and deliberate, thus could be punished as Murder. See, 18 U.S.C.S. § 1111.

Hacking

Micro hacks local, state, and Federal computers for large volumes of information. The list of violations against him could include 1) prohibiting accessing national defense information; 2) prohibiting accessing information from any department or agency of the United States; and 3), prohibiting accessing nonpublic computers used by the government. 18 USCS § 1030(a)(1), (a)(2)(B), and (a)(3).

There is a similar list for New York computers accessed, including the unauthorized use of a computer, computer trespass, computer tampering, and unlawful duplication of data. See, N.Y. Penal Law §§ 156.05, 156.10, 156.27, and 156.29.

Faking Own Death

Micro faked his own death after sustaining what should have been a fatal gunshot wound, if not for his cell phone. This technically is fraud and if there were any pending Federal charges against him, faking one’s own death would be a “substantial interference with the administration of justice” that would warrant a sentence enhancement. U.S. v. Hecht, 212 F.3d 847, 848 (3d Cir. 2000).

Warrantless Wiretaps

The CIA conducted unauthorized wiretaps to find information on the “Punisher tip line.” This information was then used to kidnap a mother and child. Wiretapping anyone in the United States without a warrant would violate the 4th Amendment of the United States. Spy agencies kidnapping US citizens is also clearly illegal.

Terrorism

Lewis Wilson planted and detonated three homemade bombs around New York, including the Federal Courthouse and Alcohol, Tabacco, and Firearms offices. This is domestic terrorism, because bombings are acts dangerous to human life that are intended to intimidate the civilian population, influence government policy, and affect the conduct of government by mass destruction within the United States. 18 USCS § 2331(5).

Attempted Assassination of Senator

Lewis Wilson attempted to assassinate [fictional] Senator Stan Ori in “Virtue of the Vicious.” Assuming Ori was a U.S. Senator, Federal law states that anyone who kidnaps and kills a United States Senator (or member of Congress or the Executive Branch) shall be punished by death or imprisonment up to life. 18 USCS § 351(b)(2). While Wilson was not successful, he could have been charged for the attempt on the Senator’s life.

Desecration of Corpses for Drug Smuggling

The drug trafficking conspiracy include heroine being smuggled in the bodies of service members killed in Afghanistan. This would qualify as a criminal conspiracy under 21 U.S.C.S. § 963 to distribute drugs illegally under 21 U.S.C.S. § 959 by the desecration of corpses under 10 U.S.C.S. § 934.

Secured from Drills

Marvel’s The Punisher is an exceptional show. There are many other legal issues to discuss, so stay tune for more.

What Happens on Sakaar, Stays on Sakaar

Sakaar in Thor Ragnarok made Las Vegas look like a fast food playground. The Grandmaster is like an evil Willy Wonka mixed with Caligula, but without the singing, and everyone who got a golden ticket had to fight for their lives as gladiators.

Let’s explore some of the many legal issues on Sakkar.

Valkyrie Engaged in Human Trafficking

Valkyrie spent centuries in exile on Sakaar capturing “contenders” to be sold to the Grandmaster for gladiator games. While Valkyrie clearly suffered from PTSD and alcoholism for longer than many nations have existed, there is no way around the fact she kidnapped and trafficked sentient life forms into slavery.

The law prohibits kidnapping and selling people into forced labor. Whoever kidnaps someone for the purpose of forced labor can be imprisoned for life. See, 18 U.S.C.S. § 1590. Valkyrie kidnapped both Thor and the Hulk, who she subsequently sold to the Grandmaster. It is unknown how many others she sold to fight for their lives in the Grandmaster’s arena, but she had the reputation of bringing the Grandmaster “prized” fighters for the arena.

Valkyrie’s decision to help in the liberation of Asgard does show Valkyrie sought atonement for past actions and making a significant life change for redemption.

How Many “Dougs” did the Hulk Kill?

Pugilistic contests between two fighters are highly regulated sporting events. In California, those who organize amateur or prize fights are guilty of a misdemeanor, and can be jailed for at least thirty days and not more than a year. Cal. Penal Code § 412. States such as Nevada allow boxing matches of unarmed combat where a contestant can reasonably be expected to suffer injuries. Nev. Rev. Stat. Ann. § 467.0107.

The battles in the Grandmaster’s arena were armed gladiatorial fighters where death was an excepted result. Moreover, the Grandmaster offered freedom to those who could beat the Grandmaster’s “champion,” the Incredible Hulk. One fatality of those matches was an individual known as “Doug.” It is unknown how many “Dougs,” were killed by the Hulk, but apparently enough for the Hulk to develop a fan base that supported an industry of Hulk-themed signs, masks, and green fireworks.

The gladiatorial fights on demonstrate Sakaar objectively lacked any rule of law founded with a sense of morality. Entertainment with mutual combat that can result in death, which is where two individuals engage in a duel or fight by mutual agreement, is highly suspect. People v. Fowler, 178 Cal. 657, 671-72, 174 P. 892, 897-98 (1918). The only way self-defense can used to justified killing one’s opponent in cases of mutual combat, is by “retreating to the wall,” thus showing there is no other way to escape without killing the other party. Id.

Korg’s revolutionaries had a legitimate reason to revolt given the fact they were forced to fight for entertainment. It is worth noting that the Christian emperors in Rome ended gladiatorial combat not because it was cruel, but because the fights “presupposed that salvation could be achieved through military valor” which “conflicted with the eschatology that Christians were trying to teach.” ARTICLE: PICKING AT MORALS: ANALYTICAL JURISPRUDENCE IN THE AGE OF NATURALIZED ETHICS, 26 S. Cal. Interdis. L.J. 493, 510-511. As much as the Grandmaster claimed the revolution ended in a tie, there is no doubt those who were enslaved to fight would put an end to the games.

As for the Hulk, it is not known how many people he killed in combat, or how many died of injuries after their fight. Regardless, there is a huge problem for the Hulk, because it appears he killed others for entertainment, which has no legal justification.

The Sakaar Defense

It is extremely difficult to defend Valkyrie and Hulk for their actions on Sakaar. Valkyrie potentially spent centuries capturing people and selling them to slavery. The Hulk participated in an unknown number of gladiatorial battles that produced an unknown number of fatalities. Taking the position these actions were legally permissible because Valkyrie and Hulk were on Sakaar requires accepting that morality is relative. What is “right” verses “wrong” are not contingent on location, which makes these issues very haunting from Thor Ragnarok.

Are Asgardians Refugees under International Law?

Asgardians come from the land of ice and snow, from the midnight sun, where the hot springs flow. The surviving Asgardians at the end of Thor Ragnarok were driving their ship to new lands on Earth. Would the Norns weave for them a fate where the Asgardians legally qualify as refugees?

International treaties define refugees, in relevant part, as those who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” USCS Protocol Refugee.

Well-Founded Fears

Surtur destroyed Asgard, the planetoid nation-state atop the cosmic Yggdrasil World Tree, in the final battle with Hela. As such, the Asgardians were like many of the displaced people after World War II without a homeland.

Countries including the Norway and the United States (in part) ratified the Protocol Refugee Status, plus other international treaties on refugees. The first stage of analysis of whether Asgardians are refugees turns on whether they have a well-founded fear or persecution based on race. Both Surtur and Hela demonstrated clear threats to Asgard, with Hela slaughtering the entire Asgardian army, murdering the Warriors Three, and ordering the deaths of civilians. Surtur actually succeeded in destroying the Asgardian planetoid. As such, nations such as the United States or Norway could find Asgardians have both a well-founded fear of the Goddess of Death and are unable to return home.

Emergency Refugee Status

The President of the United States has the authority grant refugee status for humanitarian concerns in the event of an unforeseen emergency. 8 U.S.C.S. § 1157. If the Asgardian Exodus does not fall under the Protocol Refugee Status, the [fictional] President Ellis could grant emergency refugee status because of the Goddess of Death’s attempted genocide and destruction of Asgard by Surtur, would qualify as an “unforeseen emergency.” Plus, the United States would love reverse engineering the Grandmaster’s spaceship and possible Asgardian technology.

Denial of Refugee Status for Loki and Valkyrie

The Protocol Refugee Status and US law will not grant refugee status to those who committed a crime of violence or war crimes. 8 U.S.C.S. § 1101. This is problematic for Loki, as he did lead an alien invasion in New York City in a conspiracy with Thanos to conquer the Earth. This is also a significant challenge for Valkyrie, as she spent possibly centuries capturing people and selling them into slavery to fight in the Grandmaster’s gladiator games. While Thor arguably could pardon both Loki and Valkyrie for their crimes against Asgard, nations on Earth would have a difficult time forgetting about Loki’s Chitauri invasion of New York.

Twilight of the Gods

Asgardians would likely be granted refugee status, given their well-founded fear of persecution and an unforeseen emergency. There would be an issue of settlement, such as creating a new homeland for the Asgardians, compared to accepting them into different countries. Perhaps Norway would be willing to grant Thor land to build a new city-state of Asgard, but that would be problematic to allow the creation of a new nation on Earth.