Arguments against registration.

[babel2uk]

It always struck me that there weren't a lot of great legal arguments against the SHRA. The counter arguments were mostly variations of I don't want to register because of personal reasons - mostly the issue of who has access to that secret identity information. That's actually what made it interesting, because there was no clear cut right and wrong side - though arguably the anti-registration side gains more credibility than it necessarily deserves because Captain America chooses that side. It's a massive imposition on an individual's rights, but done legally and with great public support after Stamford. It's the classic argument of Safety and Security over Individual freedoms and which should take priority. The government crosses the line in so many places that it makes the SHRA an unpalatable option to a lot of heroes (recruiting villains as hunter squads, for example)...

It's interesting to note that in one of the What If comics that was published the whole of the civil war was halted in its tracks by finding a candidate that all of the heroes could agree was impartial enough to trust with their secret identities.

[Spidermaniac]

The terms and legal language of the SHRA were never explicitly stated in the comics and different writers handled things a bit differently. This gives you a lot of room on how to push the issue in your own Event.

IIRC, however, it was stated that no one would be forced to serve the government or to reveal their identity to the public. However, if one wanted to act as a costumed vigilante, he or she was required to undergo a training and licensing program. Firestar, for example, quit her costumed identity and was never pursued by anyone.

One of the main arguments against registration is that it would lead to corruption and militarization of superhumans and that the government could not be trusted with a database of hero identities. Later, the methods of the SHRA and the 50 States Initiative were thrown into question: indefinite jail sentences without trial until people agreed to register, the use of the villainous Thunderbolts, and the creation of Ragnarok/the accidental death of Bill Foster (which suggested maybe even the "trained" heroes were just as falliable as the New Warriors).

For real world comparisons and legalese, you could look at debates on gun control and the Patriot Act. I like to use both because it prevents the SHRA from being a liberal/conservative thing (liberals are generally for gun control and against the Patriot Act and conservatives vice versa).

[Nerd King]

Personally I liked the United Kingdom's take on registration (unsurprisingly...) - as mentioned in Captain Britain & MI:13

Essentially all known superheroes native to the British Isles are considered part of MI-13, meaning they can be called by the government at any time but don't have a permanent role.

Similar in some ways to the Territorial Army or Army Reserves.
And a lot like the excellent "Temps" books by Neil Gaiman and Alex Stewart (etc)

http://www.fantasticfiction.co.uk/g/nei ... /temps.htm

[Spatula]

IIRC, the main anti-SHRA arguments in the CW comic series were,

• "I don't trust the government with my secret ID." (a fair point, given how often government organizations, and especially SHIELD, are infiltrated/corrupted in the Marvel U)
• "I fear the government will try to control who/what I go after; e.g. you can't attack that evil organization because of political concerns." (probably a valid concern)
• "I'm not going to hunt down my friends." (hinges on the SHRA allowing SHIELD to draft registered heroes to hunt down and capture unregistered heroes, which always struck me as a little ridiculous and a lot counter-productive)
• "I don't wanna be a government lapdog." (not a real argument but it taps into American anti-authoritarian streak)
• "It's un-American." (vague and kinda meaningless)
• "It's no different than slavery." (a real stretch IMO)
• "It's unconstitutional." (maybe, depends on whether the government can single out "powered" individuals and for what purposes)

Mostly I think it comes down to a "Eff you, I won't do what you tell me" / "sticking it to the man" sentiment that (IME) is pretty popular among gamers and geeks in the US.

[cero]

^ Just to riff off that, another argument was mentioned.

-If I'm registered then the government dictates who the villians are.

This point raises along with the government saying if a villian can be attacked or not due to politics, the other end of the stick being heroes sent en masse to attack another country or on black op take-down missions in foreign lands.

Also the villian in the government eyes may not be so much of a villian in the heroes eyes (like unregistered friends).

Also, the comics were not matching in the issue of hanging up the tights and retiring as a second after midnight a Cape Killer squad was sent to hammer down Luke Cage's front door when he was sat at home (yeah, he was waiting for them, but they did come). Luke Cage has no costume, has a wife and child and it showed SHIELD at least would not leave a super alone just because they were not heroing and also not heroing in a costume.

[Spatula]

Also of possible interest, there's a blog written by some US lawyers that talks about superhero issues, and they did a bunch of entries on Civil War.

http://lawandthemultiverse.com

Unfortunately, they don't tag their posts properly, and the search feature isn't very useful, so you'll have to hunt through their archives to find the Civil War stuff. But it's fairly interesting stuff.

EDIT: The CW posts are on April 27th 2011, May 2nd 2011, May 13th 2011, May 16th 2011, June 1st 2011, and June 13th 2011.

One point that they bring up is that there "should" have been a registration grace period. If the law goes into effect at midnight and SHIELD is beating down your door a minute later, then you never had a chance to legally register. Because before the law goes into effect, there is no legal framework in place for registration to take place. The law would have to create that framework, then presumably allow the supers a chance to utilize it before declaring them in violation.

[Supplanter]

I think the entire run of The Ultimates constitutes a long anti-registration argument.


Jim

[Supplanter]

One point that they bring up is that there "should" have been a registration grace period. If the law goes into effect at midnight and SHIELD is beating down your door a minute later, then you never had a chance to legally register. Because before the law goes into effect, there is no legal framework in place for registration to take place. The law would have to create that framework, then presumably allow the supers a chance to utilize it before declaring them in violation.

I think that part, unfortunately, just counts as dramatic license or bad writing, as you prefer.


Jim

[gebeji]

I'm not fluent in american legalese, but in Canadian law, such a law that apparently infringes on individual liberties protected by the Charter of Rights (to security of the person, and vs unreasonable search/seizure, arbitrary detention and discrimination) must be weighted against Public Safety/National Security, and only the necessary actions required to protect it will be deemed allowable.

This is usually debated in Courts, so She-Hulk simply has to challenge the constitutionality of the law and see where it goes... in 5-10 years ;(

In the meantime she might very well get a stay of enforcement based on the balance of inconvenience favoring the anti-registration side.

Another thing that was probably not taken into account for dramatic wrting reasons, is that heroes have been in the world since before WW1, so it makes sense that Courts have dealt with the issues of secret ids and liabilities before, establishing legal precedents which obviously allowed heroes to function as they do still today, meaning the SHRA is going against that body of decisions too, another argument to take it down.

[magicotter]

OK, wall of text. You've been warned.

I am in a very real way not a lawyer, but I think the legal argument against registration is fairly strong. It runs up against the right to privacy. As written, the registration law applies to anybody with “superhuman” powers, not just people who are actively using them. So if you’re Joe Nobody with telekinetic powers, but you don’t care and you’re just an IT guy for AT&T who does his job, pays his taxes and goes about his life, not using your powers beyond grabbing a book off your coffee table at a distance, SHIELD is still going to smash into your apartment and throw you into the negative zone if they ever find out about you. You don’t actually have to do anything with your powers, merely possessing them and not registering with the government makes you a criminal. It essentially makes you a criminal because of biology, which is entirely outside of the spirit and precedent of U.S. law. We have a selective service law in the U.S.-- a draft law, so the SHRA could follow that, however, failure to register for the draft is not a criminal act. It does make you ineligible for certain government programs and positions, but its not something they hunt you down and prosecute you for (perhaps they will if there actually is a draft instituted, but they don't bother chasing you down simply for not registering for a potential future draft).

The X-Men comics got a lot of mileage out of the idea of mutant registration is the first step towards a police state. The reasoning goes something like: U.S. Law is based firmly on precedent, and once you can categorize a whole group of people as dangerous and requiring registration and unlawful by their very existence, then you have the groundwork in place for declaring any group of people a danger. And then, if the nation gets scared enough of group X, and politicians want to make some quick political hay, you can get all manner of categories of people banned, Muslims, Gun Owners, Gangsta Rappers, Right-Wing Talk show hosts, Shock-Jock Radio DJs, depending on who the political/cultural enemy #1 is at the time and the political leaning / agenda of those in power. Granted, fairly large step from registering superhumans to gulags, but if you want to worry about legal precedent, it’s a good place to worry about it. That's the moral argument, the legal argument is Constitutional.

The issue with registration in Civil War is both how the law is constructed and how it is subsequently enforced. Simply enforcing laws on the books (in our universe) in regards to vigilantism would have prevented Stamford. I'm also fairly certain the FCC would fine the Hell out of a broadcaster for airing live, unauthorized crime-fighting. The law should have been drafted to be a reinforcement of laws against vigilantism. Meaning, if you want to dress up in spandex and fight crime and evil robots and dimensional invasions, we’ll leave you be if you register (and presumably, follow our rules). If not, you will be apprehended and prosecuted to the full extent of the law if you continue vigilante activities. That would make sense and be an extension of actual law (namely various laws laying out who has legal authority to “fight crime”). But that’s not what it’s about, or it would have been written that way, and would be enforced that way. Writing the law that way, would also survive a Constitutional challenge as it is not infringing on any rights secured by the Constitution, the actual SHRA (as far as I can tell, I don’t believe it was actually fully written out) simply wouldn’t. (Granted a reasonable law doesn’t give us an excuse for superheroes to fight, so, then we’d have to have a different comic series that ruins Iron Man…)

If the law as written survives, then it's still in trouble because the enforcement of the law is nothing short of criminal. SHIELD attacks people in their homes seemingly without warrants and when they catch people they are incarcerated without trial or access to a lawyer, in some extra-dimensional prison. Really, does anybody remember a trial? That’s kind of an important facet of all U.S. law. That’s so amazingly unconstitutional it’s ridiculous. Even the freaking CIA is required to obey all US laws while operating within U.S. borders (which may explain why they don’t really run ops in the U.S.), so SHIELD is way off base. If the law does write in language allow for such unlawful entry, surveillance, and illegal search and seizures that come up in the CW comics, those would also be obvious challenges to the constitutionality of the law which would be easily upheld by any court that wasn't mind-controlled by lunatics. Again, we’re talking about U.S. citizens here, the Constitution is quite clear about what you can and cannot do to a U.S. citizen, even one caught red handed in violation of the law. Foreign nationals may very well be screwed, but U.S. citizens have quite a bit of protection under the Constitution.

Granted, the enforcement of the law happens after the debate of passage, but I think it’s fairly clear from how the law is used from the outset that the intent behind the law was to force people to be government agents or else they go to prison to never be seen again. I mean, does anybody register then go live quietly somewhere? Maybe, I don’t remember, but most of them appear to immediately become government employees fighting the anti-reg people. Forcibly coercing people into paramilitary actions at the pain of incarceration without trial isn’t the action of a democracy interested in personal freedom, it’s tyranny. That’s extremely creepy, and when I run Civil War, there’s going to be a conspiracy behind it with that goal in mind. I still haven’t figured out how to get any worthwhile heroes on the government side, but (sadly) it’s a long ways off, so I’ve got time to ponder.

As an aside, kudos to Cam et al for making the Civil War Event interesting. I was lukewarm on the event because I didn't like the series, but it's presented extremely well, even if I did have to pollute my beloved Mac with Adobe Reader to get it to display properly on screen. Sigh. So many compromises. Seriously, high praise all around the CW event is an excellent book.

-Scot