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By Stephen Lee

	Footnote Comics: Daredevil Written by Brian Michael Bendis and art by Alex Maleev. Published by Marvel Comics. What is this comic about? : Matt Murdock is a lawyer by day, and a vigilante crime-fighter by night. His father was a boxer who was killed for not taking a dive as planned, and his mother abandoned him to become a nun. He was exposed at a young age to a radioactive isotope, and thus lost his sight while enhancing his other senses and developing a fine-tuned radar sense. The great loves of his life were Elektra Natchios, who was his college girlfriend but then became a professional assassin, and Karen Page, who was his secretary. The assassin Bullseye killed both, but Elektra was brought back from the dead. Matt Murdock's law partner is Foggy Nelson, and his nemesis is Wilson Fisk, the Kingpin of Crime. Recommended Reading : Brian Michael Bendis and Alex Maleev began their current run on Daredevil with Vol. 2, Issue #26; their stories are being collected in trade paperbacks including the recent "Out," in which Murdock's identity is publicly revealed. Other prominent works about the character are Daredevil : Born Again and Daredevil : Man Without Fear, which were both written by Frank Miller. For more information, go to Marvel.com. #36 : Matt Murdock announces a libel suit against the newspaper that (correctly) revealed his secret identity. #37 : The newspaper's lawyers promise a vigorous defense. #37 : The newspaper's publisher considers settling. #44 : The history of Hell's Kitchen, now "officially" known as Clinton. All covers and panels are copyright Marvel Comics. Murdock v. Daily Globe (last updated March 6, 2003) (back to top) Even if he wasn't Daredevil, Matt Murdock would probably eventually lose his lawsuit against the Daily Globe for its story reporting that he is Daredevil. And knowing that he really is Daredevil, he probably has already committed a crime simply by bringing the lawsuit in the first place, and he will compound this crime with others the further the case goes. In Daredevil #36, Murdock announced that he was bringing a libel lawsuit against the Daily Globe for its front-page article that he was in fact Daredevil and that he was faking his blindness. In the next issue, he confronted the Globe's publisher in a settlement conference and was on the verge of a $75 million settlement when the publisher decided to fight Murdock's lawsuit for all it was worth. Murdock shouldn't have brought the lawsuit to begin with, but he definitely should have accepted whatever settlement offer was on the table. He is, as many of his friends have pointed out, digging himself deeper into the hole and making a mockery of the legal career he is trying to keep. Libel Libel occurs when someone publishes a false and defamatory statement about a person, thus causing injury to the subject's reputation (slander is like libel but instead involves oral statements). Thus, to win a libel claim, Murdock must initially prove that the statement was about him (easy enough) and that it caused damage to his reputation (again, easy enough due to the very real threat the article poses to his legal career). However, there are two additional elements that Murdock will have a lot of difficulty proving. First, Murdock must show that the Daily Globe was sufficiently at fault in reporting what it did. If Murdock was a private citizen, he might only have to show that the Daily Globe was negligent in its reporting. After all, the Globe should have backed up the story with another source, and it should have at least tried contacting Murdock in advance of publication, if only to get a "no comment" (Murdock's and Foggy's surprise at the newspaper headlines strongly suggests they had no knowledge anything was in the works). But since Murdock arguably is a public figure (he is, after all, a well-known lawyer and perhaps even a well-known superhero), he probably will face a tougher standard. He will probably be required to prove that the Globe acted with "actual malice," that it knew the story was false or recklessly regarded the truth. And how can Matt do that? That gets us to the second element, that Murdock will probably have to prove that he is, in fact, not Daredevil. Truth is a defense to a libel claim, and ordinarily the Globe could try undermining Murdock's claim by proving that what it reported was substantially true (complete truth is not required). Here, however, because Murdock is arguably a public figure and because the identity of a costumed vigilante might be considered a matter of "public concern," the burden might shift away from the Globe and back onto Murdock. If that happens, the Globe would not have to prove Murdock was Daredevil to defend against its action, but Murdock would have to prove affirmatively that he is not Daredevil, which would be even harder and would raise even more ethical problems for him. And because the Globe is not required to have reported complete truth, Murdock cannot, say, prove that he really is blind and thus undermine the Globe's truth defense, if the Globe can still show that he is Daredevil and has super-senses that enable him to effectively mimic the gift of sight. So the case is going to be hard, if not impossible, to win. What happens now? In the real world, the case would probably take several years and would move forward in these major stages: Summary judgment. Many civil cases are decided without a trial because one side has successfully moved for summary judgment. In deciding this motion, a judge reviews the evidence, makes all inferences in favor of the side that did not move for summary judgment, which here would probably be in Matt Murdock's favor, and decides if the non-moving side still has a case. Based on the Libel Defense Research Center's survey of reported decisions in summary judgment motions, media defendants win more than 80 percent of the time here. Still, Murdock probably would survive summary judgment because all factual questions would be resolved in his favor at this time. Trial. If Murdock can make it to trial, then he has a decent chance of achieving some victory, since he probably will be a sympathetic figure to a New York jury. According to the Libel Defense Research Center, plaintiffs won about 55 percent of the cases that went to trial from 1980 to 2001. However, going to trial would certainly require Murdock to take the stand and testify that he is not, in fact, Daredevil. By doing so, he will then commit perjury under New York law (Penal Law 210.15), a felony offense punishable by a sentence up to seven years in jail. Murdock's friends and allies will also be dragged into the trial, and be forced to either commit perjury themselves or give Murdock up. Appeal. And even if Murdock wins at trial, then he still must sustain that victory, which will be difficult. According to a Libel Defense Research Center survey from 1980-2001, most plaintiffs' victories did not survive appeal. About 48.5 percent of the awards were reduced or eliminated on appeal, about 9 percent were effectively overruled via a judgment notwithstanding the verdict, and 12.8 percent settled presumably for lesser amounts. Only 22 percent of the cases were affirmed on appeal (about 5 percent were still pending or unknown as of the LDRC's survey). And even if Murdock were to win and to sustain that victory, he probably would not get more than a few million dollars. The average libel award in the 1990s was $5.35 million. The largest libel award ever was for $227 million, but that award was later whittled down to nothing on appeal. The history behind that record-setting libel award is useful to see how a libel case can proceed. In that case, MMAR Group, a Houston brokerage firm, sued Dow Jones, publisher of the Wall Street Journal, and a Wall Street Journal reporter for a 1993 story that described questionable business practices and allegedly criminal conduct by the firm and its senior executives. After a 1997 trial, the jury awarded the MMAR Group $22.7 million in compensatory damages, and another $200 million in punitive damages. The district judge quickly threw out the punitive-damages portion of the award on the grounds that there was no evidence that Dow Jones published the article with reckless disregard. Later, on appeal, the judge threw out even the compensatory damages -- in large part because the appellate legal team discovered that MMAR Group had not disclosed relevant, secret recordings that proved that some disputed statements were in fact true -- and ordered a completely new trial. The MMAR Group was left with nothing but a lot of wasted legal fees and the prospect of even more legal fees ahead, and it ultimately dropped the case. Murdock should have taken the damn settlement offer and gotten out while he could have. Making False Statements to the Court But whether or not Murdock can win a libel lawsuit and sustain that victory, he has walked into dangerous ground by bringing the lawsuit at all. Denying that he is Daredevil in public may be distasteful and immoral, but it is not perjury; you commit perjury under New York law only when you give false oral testimony in court. He may have committed some kind of tort by lying to the public instead of keeping his mouth shut, but his exposure to civil lawsuits is pretty minimal since it would be hard for anyone to argue that he or she was damaged by Murdock's lie. So he may have gotten away with telling the public that he was not Daredevil. He could have stopped there and he should have stopped there; he should have said he was considering filing a lawsuit but then he should have kept on putting it off until the public stopped paying attention. Pursuing a legal action in court based on the fiction that he is not Daredevil, that violates basic ethical principles and requires lying to the court. In bringing his lawsuit, Murdock must have submitted court papers making an argument that he knows is not true, namely, that he is not Daredevil. Even if he had not done so before, he now has, at the least, submitted false statements to the court and could face severe legal and professional consequences if his secret identity is ever fully verified. Making a false written statement with the intent to mislead the court is a class E felony under New York (Penal Law 210.40), punishable by up to four years in jail. And if the case ever gets to trial, he will testify and then commit perjury. At the very least, Murdock should not be representing himself. Another lawyer who did not know whether Murdock was Daredevil and made sure that he or she did not know that for sure could get away with saying that there was no evidence that Murdock is Daredevil and that the Globe acted irresponsibly. That lawyer would not be lying, simply maintaining a willful blindness that is not necessarily so bad. But by representing himself, Murdock simply lies every time he moves this lawsuit forward. Murdock has always played it fast and loose with the legal system, doing things as Daredevil that he could not do as a normal civilian or lawyer. But this time, he's just going too far. Sources: The First Amendment Handbook, by the Reporters' Committee for Freedom of the Press, has a section on libel, which begins here. The Libel Research Defense Center is on-line here. Information on the MMAR Group Inc. v. Dow Jones case was taken in part from the Libel Research Defense Center, from a Fast Company article by Anni Layne Rodgers about Dow Jones' legal counsel (on-line here), and from a Gannett article by Barbara Wartelle Wall (on-line here. Hell's Kitchen (last updated March 5, 2003) (back to top) Matt Murdock's neighborhood on Manhattan's West Side has changed a lot over the years, and its threatening name now persists more in popular culture than in reality. The neighborhood is "officially" now called Clinton after a New York governor who once owned land there, though some call it Midtown West and some have tried calling it the Middle West Side. Long-time New Yorkers, community advocates, and tourists still call it Hell's Kitchen, but as authoritative a source as the Encyclopedia of New York City says that name is now "largely disused." Whatever its name now, the area roughly encompasses the area from Eighth Avenue west to the Hudson River and from 34th Street north to 59th Street. The name "Hell's Kitchen" usually evokes the neighborhood back in the late 19th century. Back then, the area was full of Irish workers, slaughterhouses, and factories. Street traffic was so dangerous that "cowboys" warned pedestrians of oncoming street-level freight trains and the main avenue was nicknamed Death Avenue. Gangs and violence were common. Matt Murdock's potential new girlfriend, Milla Donovan, recounted one of the more popular and colorful theories behind the name when she attributed it to a conversation between a veteran cop, Dutch Fred, and a rookie. The two were supposedly watching a riot on West 39th Street near 10th Avenue; the rookie said that the place was Hell, and Fred replied that "Hell's a mild climate. This is Hell's Kitchen." But there are other theories as well. While acknowledging that story, Writer Richard O'Connor has noted that the name was imported from a section of London's South Side that bore the name Hell's Kitchen and that was "noted for its crime and disorder … the generic phrase may well have been brought over by English immigrants, who were among the first to settle in the neighborhood." Another theory attributes the name to a German restaurant known as Heil's Kitchen, which was named after its owners. The Encyclopedia of New York City speculates that the name "was perhaps taken from that of a gang formed in the area in 1868, or adopted by local police in the 1870s." The New York Times was reportedly the first to use the name in print, and identified one specific tenement building on 39th Street between 9th and 10th Avenues as Hell's Kitchen. Each building on this block had its own similarly tragic name ("The Barracks," "The House of Blazes," "Battle Row" and "Sebastapol"), but Hell's Kitchen apparently then caught on as the name for the entire area. The anonymous reporter wrote : "'Hell's Kitchen' – a most appropriate name – is situated on West Thirty-ninth Street between Ninth and Tenth Avenues, on the north side of the street. It is built on a rock which serves as a portion of the floor and side wall in some of the apartments. Vice in its most repulsive form lives here, despite the efforts of the Police to root out the horde of vagrants, petty thieves and utterly depraved prostitutes who make this locality their headquarters." In any event, the neighborhood has undergone several waves of gentrification since the 1930s, and it even traded in its tough name for the more neutral "Clinton" around 1960. Tenements were destroyed and families displaced in the 1930s for public works such as the Lincoln Tunnel connecting Manhattan to New Jersey, and the freight trains were moved away and the elevated trains moved below ground. And the gangs have declined in prominence over the century, though they were still prominent enough that the neighborhood served as the setting for the 1957 musical West Side Story. Now, residential parts of the neighborhood are still generally working-class, though some parts have become arguably hip with more young professionals moving in and with new high-end luxury buildings being built. Assuming Matt Murdock bought land early on, he might be doing quite well in terms of his real-estate portfolio. Violent crime has dropped within the neighborhood, which largely falls within New York City's Midtown North Precinct. The number of murders, robberies, and burglaries all fell by more than 75 percent from 1993 to 2002, according to crime statistics for that precinct. Debate continues over the future direction of the neighborhood. Some community advocates within Hell's Kitchen now are fighting against future development projects that they see as pushing current neighborhood life out in favor of more high-end real-estate. One such project is a proposed football stadium that would be a large part of New York City's proposal to host the 2012 Olympics. That stadium would be built on Manhattan's West Side. Sources: Richard O'Connor, Hell's Kitchen : The Roaring Days of New York's Wild West Side (Old Town Books, 1993 – originally published in 1958). Encylopedia of New York City, edited by Kenneth Jackson (Yale University Press, 1995). New York Times, A Notorious Locality : rookeries which none but the police dare enter, September 22, 1881 (page 2). Sanna Feirstein, Naming New York : Manhattan places and how they got their names (New York University Press, 2001). Some on-line resources about Hell Kitchen's history and name are available here, here, and "http://www.nycvisit.com/content/index.cfm?pagePkey=631" target="_blank">here. The New York City Department of City Planning has information on the area covering Hell's Kitchen (along with Chelsea) on-line here. Crime statistics for the Midtown North precinct are available on-line here. Community advocates are on-line here. New York City's plan for the 2012 Olympics is available on-line here.			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