Peter Parker vs The Daily Bugle for Defamation

December 20, 2021

Spider-Man Far From ends, and Spider-Man No Way Home begins with, news broadcaster J. Jonah Jameson of the Daily Bugle playing a video that depicted Spider-Man ordering a drone attack in London, being responsible for Mysterio’s death, AND then revealed that Peter Parker is Spider-Man.

Peter needs a very good lawyer to sue the Daily Bugle and J. Jonah Jameson.

New York Defamation Law

Defamation is a “false statement about a person that ‘tends to expose the p[erson] to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society,'” Ava v. NYP Holdings, Inc., 64 A.D.3d 407, 411-12 (N.Y. App. Div. 2009), citing Rinaldi v Holt, Rinehart Winston, 42 NY2d 369, 379, cert denied 434 US 969; see Golub v Enquirer/Star Group, 89 NY2d 1074).

Defamation can be spoken (slander) or written (libel). Libel has two forms:

Libel per se: where the defamatory statement appears on the face of the communication; and

Libel per quod: where no defamatory statement is present on the face of the communication but a defamatory import arises through reference to facts extrinsic to the communication

Ava, at *411-12, referencing 2 NY PJI2d 3:23, at 197, 3:24, at 275; see also Hinsdale v Orange County Pubis., 17 NY2d 284; Cole Fisher Rogow, Inc. v Carl Ally, Inc., 29 AD2d 423, 426 [1968, Stevens, J.], affd 25 NY2d 943).

A statement is defamatory on its face if it “impute the commission of a serious crime . . . or if they affect the plaintiff in his trade, occupation, or profession…” Oluwo v. Hallum, 2007 N.Y. Slip Op. 51761 (N.Y. Sup. Ct. 2007), citing Sterling Doubleday Enterprises, L.P. v Marro, 238 AD2d 502, 503; Warlock Enterprises v City Center Assocs., 204 AD2d 438, 438.

New York law on libel per se rule on damages and news media organizations require that “damage may not be presumed in the absence of Times malice but must be proved,” which means that a plaintiff does not need to establish either actual malice or special damages before they may recover. Hogan v. Herald Company, 84 A.D.2d 470, 480-81 (N.Y. App. Div. 1982).

Accusing Peter Parker of Murder and Terrorist Attack

J. Jonah Jameson played an edited video from London that appeared to show Spider-Man ordering a drone attack with the command “execute them all.” The video purported to show Spider-Man being responsible for Mysterio’s death. The video was from an “anonymous” source. At no point in the video is Spider-Man’s face visible. Jameson states the video as “conclusive proof” that Spider-Man was responsible for the “murder of Mysterio.”

Jameson’s use of the video implies Spider-Man (and thus Peter Parker) committed two series crimes: a terrorist attack with drones and murder.

The claim that video was “conclusive proof” of Spider-Man committing murder is defamation, because it outright accused him of a crime. The video also imputes Spider-Man ordered a drone attack that could have had mass casualties.

If the Daily Bugle had any lawyers on staff, they should have paused before allowing an “anonymous” source to supply a video that clearly was edited. Publishing the video was reckless at best, intentional at worse.

The action of publishing the video can demonstrate it was done with “actual malice,” which is when a statement is made with “knowing its falsity or with reckless disregard for the truth.” Dykstra v. St. Martin’s Press LLC, 2020 N.Y. Slip Op. 31813, 9 (N.Y. Sup. Ct. 2020), citing Suozzi v Parente, 202 AD2d 94, 101-02 [1st Dept 1994] [internal citations omitted].

Reckless disregard for the truth is when there is a “high degree of awareness of . . . probable falsity[,]” Gertz v Robert Welch, Inc., 418 US 323, 332 [1974]). Alternatively, recklessness can mean the defendant “must have entertained serious doubts as to the truth of his publication.” Dykstra, at *9, citing Prozeralik v Capital Cities Communications, Inc., 82 NY2d 466, 474 (1993), citing Harte-Hanks Communications, Inc. v Connaughton, 491 US 657, 667 (1989). However, failing to conduct further investigation is not enough to establish actual malice; the issue is the subjective state of mind of the defendant. Dykstra, at *9, citing [citing St. Amant v Thompson, 390 US 727, 731-33 [1968]; Time, Inc. v Hill, 385 US 374, 387-88 [1967]; Herbert v Lando, 441 US 153, 170 [1979].)

Discovery would be important in establishing that J. Jonah Jameson acted with the reckless disregard for the truth or that he knew the video was not an actual depiction of events in London. Requests for production would focus on the source of the video, whether the video was edited by the anyone at the Daily Bugle, and discussions about airing the video. Moreover, the deposition of J. Jonah Jameson would be an opportunity to capture his vindictiveness towards Spider-Man on the record, which would go to showing his state of mind. Or simply make the jury hate him in a trial. On the flip side, if Jameson refused to participate in discovery, there is the possibility of securing a default judgment against the Daily Bugle as a sanction.

The Importance of Actual Malice

Actual malice is needed to successfully bring a defamation claim against a news publisher for public figures. Spider-Man arguably is a public figure, because he has “assumed roles of especial prominence in the affairs of society,” “occupy positions of . . . persuasive power and influence,” and have achieved “general fame or notoriety in the community.” Matthaus v. Hadjedj, 2018 N.Y. Slip Op. 30855, 6 (N.Y. Sup. Ct. 2018), citing Gertz v Robert Welch, Inc., supra at 345, 352; see Yiamouyiannis v Consumers Union of U.S., 619 F2d 932 (2 Cir. 1980).

Spider-Man took affirmative steps to “attract personal attention or striving to achieve a measure of public acclaim,” with his crime fighting and saving half of all life in the universe. See, Maule v. NYM Corp., 54 N.Y.2d 880 (N.Y. 1981). However, he took those affirmative steps as Spider-Man, not as Peter Parker.

Peter Parker as a Private Individual

The entire point of having a secret identify while being a superhero is so your family members do not get killed, stalkers do not follow their every steps, and they can have a “normal” life without bomb throwing super villains trying to kill them. The Daily Bugle deciding the secret identify of Spider-Man was of public interest raises serious privacy torts.

The issue of whether Spider-Man was involved in a terrorist attack and murder arguably is one of public concern (provided there is no actual malice). However, the fact Peter Parker’s identify was disclosed and alleged he committed murder thrust Peter into a fight with a news media corporation. Peter could recover for the damages he sustained from bricks being thrown through his window to attacks if he could show the Daily Bugle “acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” by a preponderance of the evidence. Chapadeau v. Utica Observer, 38 N.Y.2d 196, 199 (N.Y. 1975).

Did the Daily Bugle act in a “grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” by publishing an edited video that claimed a 17 year old was a murderer? I think a jury would agree.

Review of Hawkeye Podcast Series

Josh Gilliland

December 13, 2021

Join us for our weekly analysis of Hawkeye on Get Vokl.

Review Episodes 1-3

Review Episode 4

Review Episode 5

Review Episode 6

Was SWORD Legally Justified in Ordering a Drone Strike on the Scarlet Witch

Josh Gilliland

November 30, 2021

WandaVision asked an ugly question: Was Director Tyler Hayward of SWORD justified in ordering a drone strike on Wanda Maximoff for holding nearly 4,000 people against their will in the Hex?

There is a strong argument for YES.

Wanda’s Crimes Against Westview

The first part of the analysis is understanding the crimes Wanda Maximoff was actively committing at the time Director Hayward ordered the drone strike.

The first is the False Imprisonment of 3,892 people. New Jersey defines False imprisonment as “…a disorderly persons offense if he knowingly restrains another unlawfully so as to interfere substantially with his liberty.” N.J.S. § 2C:13-3.

Wanda falsely imprisoned 3,892 people. If she had been charged and convicted of the crime, she could be facing approximately 1,946 years in jail and a fine of $3,892,000.

The second is Kidnapping of 3,892 people. New Jersey defines kidnapping as follows:

A. Holding for ransom, reward or as a hostage. A person is guilty of kidnapping if he unlawfully removes another from the place where he is found or if he unlawfully confines another with the purpose of holding that person for ransom or reward or as a shield or hostage.

B. Holding for other purposes. A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another;

(3) To interfere with the performance of any governmental or political function; or

(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.

N.J.S. § 2C:13-1.

Wanda held 3,892 people to facilitate the commission of a crime, specifically false imprisonment to play out her fantasy world. There is an argument she was also terrorizing her victims, but she might not have been knowingly causing that harm.

Use of Force on the Scarlet Witch

Lethal Force is justified when an officer “has probable cause to believe that the suspect poses a serious threat of physical harm, either to the officer or to others.” Wells v. City of Chattanooga, Tennessee, Civil No. 1:09-CV-219, at *9-10 (E.D. Tenn. July 14, 2011). Moreover, when a suspect has taken hostages, the suspect have demonstrated a propensity for violence and unpredictability. Clay v. Williams, No. 17 C 6461, at *24 (N.D. Ill. May 31, 2020).

Wanda placed an entire town under an energy field that altered reality to suit her fantasy of a domestic life based on classic sitcoms. While there is debate over at what point Wanda went from having a nervous breakdown from her personal loss to knowingly holding nearly 4,000 people against their wills, Director Hayward could argue there was probable cause he believed Wanda to be a serious threat of physical harm to others.

Would firing on Wanda been a good idea? There is a strong argument for “No,” because it was unknown what would happen to the Hex if Wanda was killed and if that would have harmed the Wanda’s victims. While there is justification to fire on Wanda, the wildcard of endangering the lives of everyone in the Hex would argue against taking the shot.

The Legality of the TVA Arresting Sylvie

Josh Gilliland

November 13, 2021

“Crimes Against the Sacred Timeline.” What exactly does that mean? Would a 7 year old understand what was happening to them if charged with such a crime?

In the Loki episode “Nexus Event,” we learned that the TVA entered Asgard and arrested the young Loki, future Sylvie, while she was playing with a Viking ship, presumably Asgardian soldiers, and a wolf (possibly Fenrir) and stated in game play that they had saved Asgard. Loki’s playtime was interrupted by the TVA placing her under arrest for “Crimes Against the Sacred Timeline.” She was forcibly taken from her home (and unknown to her parents) to be put on trial.

There is a lot wrong with that.

Arresting Children

Texas [naturally] has specific code sections on arresting children. A police officer can arrest a child if there is probable cause the child has engaged in 1) penal code violations; 2) delinquent conduct indicating a need for supervision; or 3) probation violations imposed by a juvenile court. 54.01. Tex. Fam. Code § 52.01(a)(3)(A), (B), and (C).

Federal law requires that when a juvenile is arrested, the arresting officer “shall immediately” tell the child of their legal rights in language they can understand AND immediately tell the juvenile’s parents, guardian, or custodian, that the child was taken into custody. 18 U.S.C. § 5033. This is code for “Give the kid Miranda rights in terms they can understand.” This is because it is radically unjust to deny a child their human rights.

None of that happened with Loki. Safe bet Odin and Frigga would not have been ok with fascist time cops arresting their child to be sentenced to nonexistence.

Loki on Trial

A child must be competent to stand trial, which requires them to be able to consult with their lawyer and assist in preparing their defense. If a court has doubt the child is competent, the proceeding is to be suspended. Cal. Welf. and Inst. Code § 709.

Would young Loki be competent to stand trial? She would understand she was taken from her home, but would be totally clueless on the TVA, the charge against her, and if she even had a defense attorney, would have a hard time assisting in her defense. Not because she was not bright, but because there is a significant “What the Hell is Happening” factor with being “arrested” by the TVA.

Legality for Executing Children

Civil society is horrified at executing children. The United States Supreme Court has held that children are constitutionally different from adults for the purposes of sentencing, because children have diminished culpability and greater prospects for reform. Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 2464 (2012) [citations omitted]. Children are still developing their character and are more vulnerable to negative influences (code for bad home life or mass incarceration). Id.

If a state is going to execute a minor, “great care must be taken to ensure that the minor truly deserves to be treated as an adult.” Burger v. Kemp, 483 U.S. 776, 824 (1987). There must be a specific inquiry on the “age, actual maturity, family environment, education, emotional and mental stability, and . . . prior record” in determining a minor’s criminal culpability. Id.

What did Loki do to get arrested? Play with toys and want to be the hero? Save the day? That does not scream death sentence. It does offer a spin on the Pygmalion Effect, that if you treat someone as a villain, she will become one.

The Legal Geeks @ SDCC Special Edition

Josh Gilliland

November 6, 2021

We had an amazing time at San Diego Comic Con Special Edition. Check out recordings of our panels below.

Friday, November 26 @ 730pm- Ghostbusters: Law for the Afterlife

Saturday, November 27 @ 100pm – A Lawyer’s Holiday Special

The Legal Geeks at Denver Fan Expo

Josh Gilliland

October 25, 2021

We are presenting at Denver Fan Expo on October 30 and 31st! Here is our schedule if you want to see us at the show!

October 30

GALACTIC LAW IN STAR TREK LOWER DECKS

2:30 pm in ROOM 709 Journey to the Lower Decks for strange new worlds of legal analysis with The Legal Geeks! Defending First Officers who turn into zombies and vengeful gods with the insanity defense! Just what is the liability for creating the murderous hologram Badgey? Can senior officers send ensigns out to run personal errands? And let’s not forget the penalties for disobeying lawful orders. Join our panel of lawyers for their analysis of Star Trek Lower Decks.

October 31

THE WESTVIEW WITCH TRIALS

2:30 pm in ROOM 709 In Wandavision, Wanda subjected an entire town into her sitcom-oriented alternate reality. In this panel, we put Wanda on trial. Is she guilty of kidnapping? Torture? Copyright infringement? Is mind control a crime even if you don’t know you are doing it? Or was she simply protecting herself in the only way she could? Is Vision liable as an accessory to the crimes? Our panel of legal experts (including Phil Weiser, the Attorney General of Colorado) discuss and debate the issues. Panelists: Bethany Bengfort, Durie Tangri LLP Nari Ely, Durie Tangri LLP Josh Gilliland, The Legal Geeks, Mollybeth Kocialski, US Patent & Trademark Office Mark Lemley, Stanford Law School Phil Weiser, Attorney General.

THE LAW OF UNIVERSAL MONSTERS

1:30 pm in ROOM 709 The Classic Universal Monsters set the gold standard for horror films. These movies also raise great legal issues. Could Frankenstein’s Monster be legal competent to stand trial for the death of Little Maria? Is the Wolf Man a Peeping Tom? Would the Creature from the Black Lagoon be an Endangered Species? Is it desecration of a corpse to bring a mummy to life? Join our panel of lawyers to find out the answers to these monstrous legal issues. Presented by The Legal Geeks.

Titans on the battlefield: Are they even allowed to be deployed?

Gage Dabin

October 3, 2021

The field of battle

The first season of Attack on Titan (AoT) introduced us to humanity’s gruesome struggle against what seemed to be a never-ending onslaught of humanoid monsters dubbed – titans. These titans served as the central antagonist in the first couple seasons as they senselessly killed civilians and posed as the central national security risk to the Eldian Empire as they continued to destroy the walls guarding civilization.

As posed, this struggle seems to be man against nature, not a situation where laws of armed conflict come into play. However, this dynamic changes with two massive revelations. First, not all titans are the same. Second and most importantly, at the end of AoT’s third season we learn that most titans are not natural. Certain titans are manufactured by the Marleyan Empire and have been used as weapons against Paradis Island and other states.

Not all weapons are allowed

Just because we may be in an armed conflict does not give a state or an armed group the green light to use any weapon or stratagem to beat their opponent. States have to go through a strict process when developing weapons to ensure they are capable of being deployed into the conflict. Additionally, when creating or testing these weapons a state cannot subject POWs or civilians to testing. Failure to avoid any of these things results in an international law violation.

Before a new weapon or strategy can be used on the field of battle, a commander needs to ensure a few things. First, the commander needs to see that the weapon will not cause superfluous injury. Second, the commander needs to ensure that it won’t cause unnecessary suffering. And lastly, tying into the principle of distinction, is that there is a way for the weapon to be used discriminately to prevent adverse effects to civilians and other protected people. Basically, is there a human element that can help control the weapon’s targeting and prevent it from hurting protected classes.

Even if these questions are satisfied this is only half of the considerations. Commanders need to see that the weapon will not be used on protected classes e.g. POWs or civilians. In times of armed conflict, both POWs and civilians are meant to be protected. The list of protections are laid in the Third Geneva Convention for POWs and the Fourth Geneva Convention for civilians. These protections are broad but running through each of the four conventions is Common Article 3 (CA3). CA3 endeavors to broadly protect those from a long list atrocities that might occur once captured. For our interests, a few protections from CA3 stick out. First, Section A of CA3 prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” Second, Section C prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment.” Lastly, Section D prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” All of these prohibitions are violated by Marley in their quest for dominance via the titans.

Not all titans are the same

Throughout AoT we are shown that there are two distinct groups of titans: those that are manufactured and those that are controlled by individuals. Marley uses both groups of titans to expand their territorial holdings and to exert geopolitical strength against prospective challengers. Marley’s creation and use of manufactured titans establishes them as IHL violators. How so? Well…

Type 1: Manufactured Titans

The manufactured titans, like those in the below picture, do not come from a laboratory. Instead, they are created from POWs of foreign countries that Marley has conquered. This extends too to the Eldians that live within relegated zones under Marley’s control and captured members of Eldia’s military. Marley uses spinal fluid from the Beast Titan to cause the transformation and then deploys the POWs and Eldians against their own people. The simple creation of these titans violates CA3 of the Geneva Conventions because they are used for experiments and torture and the transformation ultimately mutilates their body. Further, this transformation is seen as a form of execution because their life ends and no legal system intervenes – Marley’s government is complicit in these actions. Marley knows that these titans cannot discern who is a civilian and who is not, and they continue to consciously deploy them to subjugate the people of Paradis Island into a state of being a non-threat. Because these titans can’t discern and because they cause unnecessary suffering harm with their actions they fail the remaining portion of the considerations.

Type 2: Shifting Titans

Marley has not violated international law through its use of the “shifting” titans. The titans that are manufactured far outnumber the titans that can shift because the shifters are passed from one individual to the next through a gruesome process. These shifting titans each have an individualized, special ability that sets them apart from the common ones. This includes titans such as the: Founding Titan, the Warhammer Titan, the Cart Titan, the Beast Titan, and the Attack Titan pictured to the right.

Further, these titans are controlled by the wielders personally and adopt the same intelligence and knowledge of their wielder. The wielder at any time can activate the transformation into the titan and can back out of the transformation. These titans can discern who are targets and who are not and have a record of not blatantly going after civilians. Lastly, Marley controls who passes the titans too and it keeps them within their military ranks. Typically, they do not allow POWs or civilians from Eldia to acquire these titans but have allowed some once they have proven their loyalty to Marley. Thus, there are no violations of the Geneva Conventions in this process.

Conclusion

In an armed conflict, it is obvious that neither side wants to drag the conflict out longer than is necessary because that adds to the harm each party has to bear. Quickening the conflict can be done by the introduction of new weapons or stratagems. But, quickening is done improperly if it violates general principles of IHL or if the weapons are used on protected classes.

Marley’s wars were fought quickly and effectively. But, those military victories were fueled by the expending of many POWs and civilians in ways that should never have happened. The creation and continued use of manufactured titans against Paradis Island and the world extended the long record of IHL and international law violations that Marley must account for. While horrific, Marley did not violate IHL nor international law through its “shifting” titans because of their origins and ability to discriminate in conflict.

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