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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

I used to wear a Confederate flag on the back of a concert t-shirt when I was in high school. Lynyrd Skynyrd was on the front. I never saw them in concert; the lead singer died a couple of years before I started listening. I owned (almost) every album though. I was big into Molly Hatchet too—though, to be honest, I never really got over the change in lead singers on their third album. ZZ Top was up there too, and not their mid-80s synthesizers, just the 70s albums. I also knew “Whipping Post” and the Molly Hatchet cover of “Dreams,” but I’m afraid I just wasn’t cool enough for the Allman Brothers in my teens.

So that Confederate flag on my back meant one and only one thing to me: Southern Rock. As implausible as it sounds, it never occurred to me that it might mean something else.

I grew up in Pittsburgh, a no man’s land of overlapping northern, southern, and mid-western culture. My classic rock station kept Charlie Daniels’ “The Devil Went Down to Georgia” on heavy rotation, while most stations above the Mason-Dixon wouldn’t touch it. My suburb had maybe a 10% Black population, but illegal yet never-challenged redlining policies by local real estate agents kept those families sequestered in one corner of the town map. When a Black family did move in down my street in our otherwise all-white neighborhood, someone threw a burning cross in their yard. I’m not sure how long after that they moved out.

My parents helped desegregate the local police force by taking them to court and winning. That’s why our house kept getting egged and someone wrote “NIGER LOVERS” on the side of the garage. Racists can’t spell, my mother joked.

I wasn’t the brightest student either. I must have had some vague knowledge of the Civil War, but it was no more present in my mind than any other ancient history-book event I skimmed for a quiz and instantly forgot. This was decades before the KKK left Confederate flag flyers on my Lexington lawn or I saw that flag waved in unison with Nazi swastikas in Charlottesville. A part of me would like to go back to my high school ignorance. The world doesn’t seem half as ugly when you’re not required to pay attention.

I can’t erase my adolescent love for southern rock, but to preserve it, and anything else good about the South, requires disconnecting it from the symbols used by slave owners, Reconstruction-era vigilantes, Jim Crow-era bigots, Civil Rights-era segregationists, and modern-day neo-Nazis.

I think I get why that outrages some folks born here. If you grew up understanding a symbol to mean one thing and one thing only, family pride, who has the right to say you’re wrong? My continuing nostalgia for southern rock is nothing compared to a family identity passed down through generations.

I deeply respect that love of family. It’s why I reject the Confederate flag.

Slavery was the greatest anti-family force in the history of our country. Couples, parents, children, siblings, they were legally torn apart for the financial convenience of owners. I can’t imagine never seeing my children or wife again. I can’t imagine persevering through forced labor, forced poverty, and the constant threat of physical violence against myself and my loved ones. I can’t imagine my wife and daughter being legally raped and their offspring sold. Slavery is beyond anything I can imagine.

Although the Confederate flag means different things to different people, it obviously means slavery to many people, and I can’t stomach that association. But that’s easy for me. I didn’t grow up cherishing it. The greater feat of compassion would be to understand the flag as a personal symbol of pride and to still let go of it out of love for others who aren’t part of your own family.

All lives matter, but the Confederacy waged a war under the belief that Black lives don’t. Virginia has been around over four hundred years, but it was a part of the Confederacy only four. Southern pride can’t be identified with symbols linked to slavery and the century of violent bigotry that followed it.

Loving the South means letting go of the Confederacy.

First, let’s correct a common but false impression: The First Amendment’s protection of free speech does not apply to students wearing Confederate flags.

There are many legal precedents; here are four:

In 1972, the Sixth Circuit Court of Appeals ruled that a Tennessee high school’s suspending a student for wearing a jacket that featured a Confederate flag was “a legitimate exercise of the school officials’ inherent authority to curtail disruption of the educational process.”

In 2008, the Sixth Circuit Court again upheld another decision from another Tennessee high school that banned Confederate flags for the same reason. Black students made up roughly 3% of the school, nearly identical to the Black population of Rockbridge County.

In 2009, the Eighth Circuit Court upheld a Missouri high school’s decision to suspend a student for violating the dress code prohibiting Confederate flags.

In 2013, the Fourth Circuit Court upheld a ruling that a South Carolina middle school was allowed to prohibit a student from wearing a “Southern Chicks” t-shirt that featured Confederate flags because “the school officials could reasonably forecast that [it] would materially and substantially disrupt the work and discipline of the school.”

In each case when the ruling was appealed to the Supreme Court, the Supreme Court rejected to hear it, establishing the lower court’s ruling as the final outcome and the legal precedent for future cases.

Here in Virginia, Montgomery County has prohibited the Confederate flags since 2002, because students cannot wear material that is “racially divisive,” listing the Confederate flag as an example. More than twenty high school students were suspended in 2015 for the violation.

In 2020, the Franklin County school board voted 6-0 to ban Confederate flags. A board member explained that the policy change was necessary because “it became apparent that students were offended by the Confederate symbol and found it disruptive.”

Bedford County Schools banned Confederate flags last year too. Its high school dress code reads: “Attire that has language or images that are offensive, profane, vulgar, discriminatory, or racially/culturally divisive. This would include Confederate flags, swastikas, KKK references, or any other images that might reasonably be considered hurtful or intimidating to others.”

Schools routinely ban Confederate flags and the courts routinely uphold those bans because the Confederate flag is overtly linked to slavery, the most extraordinarily racist institution in our nation’s history.

Mississippi’s statements of succession declared: “Our position is thoroughly identified with the institution of slavery.”

The Confederate Constitution is identical to the U.S. Constitution, except for one repeated phrase: “Negro slavery.”

Its vice-president declared that the Confederacy “rests upon the great truth that the Negro is not equal to the white man; that slavery — subordination to the superior race — is his natural and normal condition.”

The Confederacy kept four million Americans enslaved and, had they won the war, would have kept their uncalculatable offspring enslaved too. White supremacists know that historical fact and have repeatedly brandished the Confederate flag as a symbol of racial hatred in defiance of American values.

In 1951, Georgia politician Roy Harris declared that the Confederate flag “is becoming … the symbol of the white race and the cause of the white people.”

In 1956, white supremacists waved Confederate flags while throwing rocks at the first black student to attend the University of Alabama. They waved them in Little Rock, New Orleans, Austin, and Birmingham too.

In 1963, Alabama Governor George Wallace waved the Confederate flag in opposition to integration, promising to fight for “segregation now, segregation tomorrow, segregation forever.”

South Carolina began flying the Confederate flag from its capital in opposition to Civil Rights too. It was only removed in 2015 after a white supremacist murdered nine Black church members at a Bible study meeting in Charleston.

White supremacists waved the Confederate flag next to the Nazi flag at Charlottesville in 2017. The two flags are known internationally as symbols of racial hatred. The Anti-Defamation League classifies the Confederate flag “as a potent symbol of slavery and white supremacy, which has caused it to be very popular among white supremacists in the 20th and 21st centuries. This popularity extends to white supremacists beyond the borders of the United States.”

When a Confederate flag was displayed in a Canadian cemetery last March, the Calgary police hate crimes unit investigated, and the city council declared: the Confederate flag “is hateful, and it is not welcome in our community.”

And right here in Rockbridge, the KKK has left leaflets decorated with Confederate flags on the lawns of local residents.

Though many identify the Confederate flag as a symbol of family and regional pride, that identification does not outweigh the flag’s larger and internationally recognized meaning as a symbol of racial hatred inextricably linked to its white supremacist history. The South and the Confederacy are not the same. Virginia has existed for over 400 years, and it was a member of the Confederacy for only four of those years. Pride in Southern heritage cannot be linked to an institution that legalized forced labor, torture, murder, rape, human breeding, and the permanent division of families.

My congressional district was a top headline in the New York Times the Sunday after the Virginia governor election: “Democrats Thought They Bottomed Out in Rural, White America. It Wasn’t the Bottom.” Reporters Astead W. Herndon and Shane Goldmacher travelled to Bath county (which along with Rockbridge and about a dozen other neighboring counties is Virginia’s Sixth congressional district) and interviewed “a dozen white, rural voters who backed Mr. Youngkin” to understand what drove the red wave. Their responses reveal a lot about not just my state but the state of the political divide widening across the U.S.

First up, look at Charles Hamilton. He’s a Vietnam vet who said “his vote for Mr. Youngkin was really a proxy vote for Mr. Trump,” because “the best thing that can happen is to get [Biden] and that woman out of there.”

I’m not sure who “that woman” is (Jill Biden maybe, or did he mean House Speaker Nancy Pelosi?), but his point is clear: the Virginia governor election wasn’t about the Virginia governor election; it was about Trump and Biden. Youngkin and McAuliffe didn’t matter. Though it would be nice if non-presidential elections weren’t always referendums on the White House, Hamilton’s political reflex is probably the norm for both Republicans and Democrats. The takeaway is clear too: Biden’s approval rating determines other election outcomes. That’s been pretty much the driving logic behind every election I’ve witnessed in my political lifetime, so I’d call that business as usual.

Now look at the second Bath voter. Karen Williams says she’s angry at Virginia’s current Democratic governor because he supports “critical race theory” which she says is responsible for removing Confederate statues and for “treating [white children] like little monsters.”

I don’t want to leap down the CRT rabbit hole, so I’ll just say that teaching white kids that they’re little monsters is definitely not critical race theory. Neither is removing Confederate statues—though at least in that case there’s some connecting thread to reality since Confederate statues often reflect systemic racism and CRT was developed in 1980s legal studies as a way to combat systemic racism. But I suspect Williams doesn’t know that. I’m guessing she heard conservative media pundits repeating claims that progressives had infiltrated public education to promote the belief that white people are born evil. Not only is that idea not CRT, it’s not even an actual belief since no progressive educational policies promote anything like it. So the takeaway: voters such as Williams think Democrats are indoctrinating children with offensive ideas that Democrats don’t actually believe let alone promote. The rebranding of CRT has provided Republicans a fictional but powerful target to channel their anger about Black Lives Matter.

The fictional leap of CRT is nothing compared to Bath voter number three. Elaine Neff displays “images of Mr. Trump as Rambo and the Terminator” in her hardware store, and she attended Trump’s January 6th rally—though she didn’t tell the Times reporters whether she participated in the riot.

So now we have a voter who believes the unsupported and repeatedly debunked claim that the 2020 presidential election was somehow rigged and that Trump was somehow the actual winner. Last month, the Public Religion Research Institute found that two-thirds of Republicans hold this belief. Last May, a PRRI-IFYC survey also found that 28% of Republicans believe “true American patriots may have to resort to violence” to save the country. The new survey puts the number at 30%.

This is Neff’s crowd. She is beyond Hamilton’s merely partisan approach to voting or even Williams’ warped but based-on-a-true-story CRT distortions. Neff celebrates Trump as an iconic action hero embodied by actors Sylvester Stallone or Arnold Schwarzenegger (who, ironically, don’t support Trump). But it gets worse. Neff also believes the FDA-approved coronavirus vaccine is a “poison.” Worse yet: She is “worried that Democrats were planning extermination camps of Mr. Trump’s supporters.”

Wait. What?!

If it sounds like the New York Times concocted a parody article to ridicule Republican voters, consider that the survey mentioned above also found that a sixth of Americans (meaning a third of Republicans) believe the currently Democratic-dominated federal government is controlled by Satan-worshipping, sex-trafficking pedophiles.

How is it possible for anyone, literally anyone, to believe any of these extremist fabrications?

That brings us to Bath voter number four. John Wright said he listens exclusively to “pro-Trump programming” because: “If the media said it, I won’t believe it.”

Wright is far from alone. Though two-thirds of Republicans think Biden somehow rigged the election, the number rises to 82% for those who watch Fox News, and 97% for One America News Network and Newsmax. While 30% of Republicans are okay with violence in the service of conservatives retaking America, the number rises to 40% for those watching Wright’s “pro-Trump programming.” As the Times reports: Bath “voters, fueled by a conservative media bubble that speaks in apocalyptic terms, were convinced that America had been brought to the brink.” Bottom line: many rural Republicans in Virginia believe whatever they want to believe and insulate themselves from hearing anything that might challenge those beliefs.

The reporters spin that by quoting the Democratic former governor of Montana, Steven Bullock, and retiring Illinois Representative Cheri Bustos. Bullock says, “We’ve got a branding problem,” and Bustos says, “Folks don’t feel like we’re offering them anything, or hearing or listening to them.”

Both of those statements are true, but neither comes close to touching the bottom of the Republican deep end. The problem in Bath wasn’t “branding” or not “listening.” Bath voters are evidence that conservative national media stokes and insulates Republican outrage by branding Democrats with insanely offensive lies: Democrats overthrew the last presidential election? Democrats are distributing poisonous vaccines? Democrats think white children are monsters? Democrats are pedophiles? Democrats are Satanists? Democrats are planning extermination camps for Trump supporters?

But when Politico.com asked Youngkin’s top strategists Jeff Roe and Kristin Davison how Youngkin won, they answered: “I think it was a textbook example of the theory that candidate quality matters. We started with a once-in-a-generation talent in Glenn. He’s a genuine guy with a positive, upbeat attitude all the time who really wanted to focus on a positive, unifying campaign.”

I won’t bother autopsying the polls. On November 1, Youngkin was up about 1%, and on November 2, he won by about 2%, well within any margin of error. Bottom line: poll accuracy collapses whenever Trump is on the ticket, but otherwise they perform just fine.

Local Democrats performed just fine too. Trying to figure out what they could do better next election, I discovered that Democrats actually did a good job getting out the vote in my area. Where McAuliffe underperformed in some other places due to Democratic lethargy, here in Lexington and Rockbridge, Democratic voter turnout increased slightly from the last governor race. Where Northam received a total of 4,135 votes in 2017, McAuliffe received 4,342, for a gain of 207. 

Third candidate Princess Blanding of the newly formed and highly progressive Liberation Party took only 10 votes in Lexington and 38 in Rockbridge, so her presence wasn’t significant. Though if you combine her and McAuliffe’s votes, the total progressive vote gain inches up to 245. 

But the local GOP did even better getting out their vote. Where GOP governor candidate Ed Gillespie received a total of 5,445 Rockbridge and Lexington votes in 2017, Youngkin received 7,671, for an impressive gain of 2,326.

That’s how Youngkin won. John Domen of WTOP News explains:

“In Southwestern Virginia, which is very rural, Youngkin did well. In each county, Youngkin found a way to add a few hundred votes here, or another thousand votes there. Virginia has 95 counties, and even if many of them aren’t very populated, those votes eventually added up. So when you combine the boost in rural voters with those in the suburbs and exurbs, a red wave just turned Virginia a lot more purple than four years ago.”

At the state level, Northam received 1,409,175 votes in 2017. McAuliffe received 1,588,557. That’s an increase of 179,382. But Youngkin’s 1,660,438 votes beat Northam’s winning total by 251,263.

So 71,881 votes divide Youngkin and McAuliffe. That’s a much smaller divide than when Biden beat Trump by 451,138 a year ago. Trump’s personal lawyer Giuliani claimed the Virginia results were rigged, and Youngkin promised to conduct an audit of the 2020 election as soon as he takes office. Since the 2021 results are now far far closer, will he audit those too?

Regardless, Youngkin got out (much of) the Trump base. In 2020, Trump received 1,962,430 votes, 301,992 more than Youngkin. In comparison, McAuliffe failed to get out as many of the 2,413,568 Virginians who voted for Biden, losing 825,011 of them. A lot of that has to do with Biden’s approval rating—which isn’t as low as Trump’s was, but is still well before 50%. Newsflash: Virginia Democrats aren’t excited by either Biden or McAuliffe.

So how did Youngkin get out so many of the Trump voters?

Currently 66% of Republicans (according to a Yahoo News/YouGov survey in August) still believe the 2020 election was stolen. Youngkin carefully courted those believers, substituting Trump’s belligerent rhetoric with mild-mannered terms like “voter integrity,” which he said was “the most important issue” of the campaign. He never said the election was stolen—but he also didn’t correct any of his surrogates when they made the claim in front of cheering Trump crowds.

A similar number of Republicans (63% according to a Politico-Morning Consult survey in June) believe that so-called Critical Race Theory is a threat to public education. Youngkin courted those folks directly, claiming that CRT (whatever it is, since the definition keeps shifting) was being taught in Virginia schools and promising to put an end to it. One of his last campaign ads featured a conservative activist who has been trying to get Nobel-winning novelist Toni Morrison’s Pulitzer-winning novel Beloved banned from Virginia schools for the last decade because it gave her son nightmares when he read it in AP English.

Those aren’t the worst numbers though. 28% of Republicans (according to a PRRI-IFYC survey from May) believe the Qanon principles that there is a “storm coming soon” to “sweep away the elites in power and restore the rightful leaders” and “because things have gotten so far off track” “true American patriots may have to resort to violence.” Even worse, 23% of Republicans believe that “the government, media and financial worlds in the U.S. are controlled by a group of Satan-worshipping pedophiles who run a global child sex-trafficking operation.”

Youngkin didn’t court those Trump voters. He didn’t have to. They’re self-motivating. They are the core of the 2021 Red Wave that swept the Virginia GOP back into power.

So the question facing Democrats for the 2022 mid-terms and 2023 Virginia legislature races: How the hell do you out-motivate a pro-violence voter base who thinks your candidates rape and traffic children while helping Satan achieve world domination by destroying education and rigging elections?

I’ll have to get back to you on that.

I began this continuation of my Text-ured series before the semester heated up. This time the “text” is the 14,022 words from chapter seven, “Sequenced Image-Texts,” of my book manuscript The Comics Form: The Art of Sequenced Images. Since the last time I posted from this series, the revised manuscript has been officially accepted by Bloomsbury. The final draft is due this week — then the process of copyedits, indexing, etc. begins. This last chapter discusses the ambiguous dividing line begin text-narration and image-narration. Though this series is composed entirely of words, I think each falls pretty clearly into the image half of the divide. But if anyone spots a typo, please let me know.

Though the word ‘retcon’ is relatively new to the U.S. legal system, the process of retconning is not. That law professor friend of mine recently emailed me about a pair of articles: “Had to copy and paste these for you when I read them: my colleague’s retcon account of unconstitutional laws, which one would never find by search for ‘retcon’ or cognates. You’re right—we’re all retcons now.”

In his 2008 Georgetown Law Review article “The Executive’s Duty to Disregard Unconstitutional Laws,” Saikrishna Bangalore Prakash coins the term ‘Citizen Disregard’ as a subset of civil disobedience. A citizen “may choose to defy all manner of statutes that they believe are unconstitutional,” claiming such a “statute is no valid law at all and hence her actions were not unlawful.” If “a court concludes that the underlying statute is constitutional, the private citizen will be found guilty,” but if the court agrees, the citizen is not guilty—revealing that the apparent law was never an actual law. It was just mistakenly understood to be one by people other than the citizen disregarder.

Such a decision is a retcon. It reveals how things actually were all along. If the decision were a sequel, then the citizen disregarder would have been guilty of breaking the law while it was still a law, but then not punished because the law was struck down by the court during the subsequent trial. The sequel v. retcon distinction is less a disagreement about constitutionality and more about reality. Was a law a law before it wasn’t a law or was it never a law at all?

Prakash adds in his 2020 Harvard Lew Review “Faithless Execution” that citizen disregard retcons are independent of the judicial decision: “the American tradition has been to conclude that … some ‘acts’ are unconstitutional, and are therefore nullities, without regard to whether a court has so declared.” This further distinguishes the retconning from sequels, because sequels are created by new actions. Though retcons require revelations to be recognized and then applied, their logic requires that any revealed reinterpretation was always true and would be true whether revealed or not. The court does not make the statute a nullity. It discovers that the statute was always a nullity.

The Supreme Court’s 1886 Norton v. Shelby County decision makes the retroactive nature of a judicial retconning explicit: “An unconstitutional act is not a law … it is, in legal contemplation, as inoperative as though it had never been passed.” The case determined that bonds signed by a county commissioner were not valid because, despite a sequence of individuals appearing to serve as county commissioners for the two decades, the county never had a commissioner. They just thought they did. The Court explained: “As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions.” The court called them “usurpers.”

In his 1962 article “The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio,” Paul Bender explores the practical ramifications of such court-discovered usurpers. The Supreme Court ruled in 1961 that Cleveland police officers who broke into Dolly Mapp’s home without a warrant had no legal right. Mapp was dating a Cleveland racketeer, and the police found a suspect in the bombing of a rival racketeer’s home hiding in her basement. They also found gambling slips and pornography. Mapp was acquitted of the gambling offense, but after she refused to testify against her boyfriend, she was sentenced for the pornography. By declaring the evidence inadmissible, the Supreme Court freed Mapp and also reversed its 1949 Wolf v. Colorado decision, which had instead determined that the prohibition of illegally-seized evidence did not apply to state courts, upholding the conviction of Julius Wolf for “conspiracy to perform an abortion.”

Bender calls the “sudden change of law” produced by Mapps “an unorthodox exercise of judicial power” that creates a “problem of retroactivity” about “which rule applies when trials predating the announcement of the new exclusionary rule are now challenged.” Though he makes an extensive argument for what he calls “a somewhat arbitrary line excluding most previous trials,” Bender also acknowledges that “the only logical choice would be complete retroactivity.” That’s because Mapps is a retcon, not a sequel. While content that the decision applies to all future cases, he seems uncomfortable with its also being retroactive. (In the language of my previous posts on judicial retconning, Bender thinks Mapps is a Klingon butthead.)

Bender may be correct that “the purposes of the new rule do not call for general reexamination of previous convictions,” but any reexamination of a conviction based on evidence that is retroactively revealed to have been inadmissible must be overturned. While Mapps does not “call for a general reexamination”—which presumably would involve a review of all cases to identify those that involved inadmissible evidence—it does not bar it either. It does, however, require that if such a conviction is examined, it must be overturned.

Bender’s use of the word ‘announcement’ is revealing. Mapps announced “the new rule exclusionary rule,” and so in the logic of retconning which Bender acknowledges, it did not create the rule. The newly discovered rule applies to all trials regardless of when they occurred. The announcement itself did not do anything—except for Dolly Mapps. If other wrongful convictions are to be overturned, each must be brought before a court too.

This is true of retcons generally. The announcement of the new discovery of Neptune in 1846 did not alter any astronomy textbooks. That required a separate and protracted process of its own. Bender’s question of applicability is akin to an astronomer asking whether the existence of Neptune should be applied before 1846 or only afterwards.

Bender also cites the Supreme Court’s 1940 Chicot County Drainage Dist. v. Baxter State Bank, which expresses a similar discomfort with retconning and a preference for sequels. The decision reversed a lower court’s application of the Shelby logic to a bankruptcy case: “The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree.” This time the Court rejected that retconning logic: “The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration… a principle of absolute retroactive invalidity cannot be justified.”

Chicot incorrectly relies on the logic of sequels. A retcon does not erase the past—it reveals it. The past is neither justified nor unjustified—it is whatever it is, however convenient or inconvenient. If past facts were previously misunderstood, the mistaken account is invalid. Referring to “a new judicial declaration” that erases the past implies a kind of sequel. Things were one way, and now they are some other way. Shelby and Mapps instead establish that nothing actual has changed. Stating that the unconstitutional statue had “actual existence” would require that it had been previously constitutional—otherwise it was never an actual statute. The plaintiffs in Shelby argued the county commissioners “were officers de facto,” which means “in actual existence,” a principle the Court absolutely rejected.

The disagreement between the 1940 Court and 1886 Court is the nature of judicial revision. Do retroactive decisions change the past or reveal the past? The jury may still be out.

The short answer: probably not.

It’s a yard sign for a local grassroots get-out-the-vote campaign. It’s not something published by a comics publisher. That’s my circular but still useful shorthand definition of the comics medium. The comics medium is distinct from the comics form, which I can define in even fewer words: sequenced images.

So if the yard sign contained two sequenced images, would it be a comic? Well, if being a work in the comics form is enough for something to be a comic, then yes. But does the sign contain two images?

That’s going to require the long answer.

For the sign to be sequenced images, it has to include at least two images. If you look closely at the bottom right corner, there are three small images (including a recycling symbol and the outline of Virginia). Because they are so small, and so secondary to the larger design elements, I’m going to ignore them. That leaves seven much larger words and the central white area. If you call the word “BLUE” an image and if you call the shape framing “BLUE” an image, then the sign has two images.

But should we call either an image?

I’ve written previously about how the way a word is rendered can make it word-image art. In this case, does the way “BLUE” is rendered make it art? I suspect there’s room for debate, but my instinct says no. Its graphic-art qualities seem much less operative than its linguistic qualities.

That would mean the sign includes (at most) one (significant) image, and since one image can’t be sequences images, the sign isn’t in the comics form, and since it’s also not in the comics medium, it can in no sense (that I know of) be considered a comic.

But, what the hell, let’s say “BLUE” is word-image art (its size and color are the sign’s most distinctive qualities) and so an image. Then is the white space framing it an image too?

This is a variation on a question I’ve been chewing on while completing my next book manuscript, The Comics Form: The Art of Sequenced Images. The last chapter is titled “Sequenced Image-texts.” Though a comic (whether defined by form or medium) doesn’t have to include text, many do. So understanding how sequenced images work requires understanding the subset of sequenced image-texts. And that requires determining the minimum necessary qualities for an image to be an image.

Here’s a bit from the draft:

In traditional comics, hand-lettered or typeset words appear in frames termed ‘caption boxes’ and ‘balloons’ or ‘bubbles’ distinguished by the linguistic content of speech or thought, with ‘tails’ or ‘pointers’ directed at rendered subjects. The framed words typically divide into lines according to the discursive requirements of the frame and so with little or no linguistic consideration, but word frames can also produce units and rhythmic effects similar to lines or stanzas of poetry. The backgrounds of framed areas are sometimes different from the surrounding image, often with the same white negative space as margins and gutters. Since these frames, like drawn frames generally, are not actual frames but representations, words in word frames are image-texts, with the non-linguistic elements communicating meaning. Pratt, for example, observes that “word balloons may also, through their style or even color, give pictorial cues to the reader as to the mental states and attitudes of their utterers” (2009: 110).

If a frame and words are sufficient to make an image-text, then many PowerPoint presentations are in the comics form, including the story “Great Rock and Roll Pauses” in Jennifer Egan’s 2010 A Visit from the Goon Squad, which is a PowerPoint both discursively and diegetically since it is created by a character within the story. Many charts, graphs, and diagrams are image-texts too, and so would combine in the comics form. Alternatively, such example might be excluded from the comics form if non-linguistic images must display some minimal level of graphic-art quality to produce image-texts in combination with word-images. Such a spectrum would be subject to individual perception.

In other words, I’ve been thinking:

Now back to the yard sign: does the shape framing “BLUE” have enough graphic-art quality to be called an image? Here my instinct says yes. Though the bottom and side edges are single lines, the top edge consists of sixteen lines. The top edge is also representational: it represents the Blue Ridge mountains. Since representational images are a kind of image, they presumably have “some minimal level of graphic-art quality.”

But what if viewers don’t perceive the top edge as representing a mountain ridge? If those viewers don’t read English, they would not have the linguistic cue, and maybe the row of varyingly angled lines would be too abstract to evoke anything by itself?

I could always cheat and invoke authorial intentions. Which in this case would be my intentions. I drew those sixteen lines along the top edge of the rectangle to resemble a mountain ridge when drafting a possible campaign sign after a candidate dropped out of our local town council race last year. We wanted someone to jump in, and for a horrible moment I was considering being that someone:

I decided not to run, but when our grassroots group wanted a yard sign for this November’s election, I was happy to repurpose.

Which is a long way to say that I see a mountain ridge in the angles of the top edge. But I’m just one viewer (who happens to have unique knowledge of the creative process, including the creator’s intentions). Since perception is individual, the same object may be an image to one viewer and not an image to another viewer. Since the sign includes two elements (“BLUE” and the top edge of the white area) that seem to fall in the ambiguous middle zone of the image or not-an-image range, the sign may be perceived as containing no, one, or two images. The first perception would make it simply text (though apparently with some non-linguistic yet sub-image flourishes). The second would make it an image-text. And the third would place it in the comics form.

So is it a comic?

Like I said, probably not.

Retcons have entered U.S. law. They’ve also entered U.S. law studies—as a law professor friend of mine recently showed me after running a search for the term in law review articles. He found three.

In his essay “The Employment Status of Ministers: A Judicial Retcon?,” Russell Sandberg writes: ‘“Retroactive continuity”, often abbreviated as “retcon”, is a term often used in literary criticism and particularly in relation to science fiction to describe the altering of a previously established historical continuity within a fictional work.’

So far so good—especially if you consider superhero comics a SF subgenre. He continues: ”To date, however, the concept has not been used in relation to law.’

Sandberg published his Religion & Human Rights article in 2018, and the first use of ‘retcon’ in a court ruling is 2019, so still good. He continues: ‘Legal judgments often refer to history and include historical accounts of how the law has developed. Such judgments invariably include judicial interpretations of history.’

Yep, that’s a good working definition of ‘judicial retcon.’ But then Sandberg writes: ‘On occasions, they may even include a “retconned” interpretation of legal history – a “judicial retcon” – that misrepresents the past and rewrites history to fit the “story” of the law that the judge wants to give.’

No. That’s not a retcon—that’s a rejected retcon since it is identified as a misrepresentation. Worse, Sandberg suggests codifying his definition of ‘retcon’ into legalese: ‘This article explores the usefulness of a concept of a “judicial retcon” by means of a detailed case study concerning whether ministers of religion are employees.’

Setting aside minsterial employment minutia, the case is another Klingon butthead, or lame attempt, as discussed in earlier posts. Instead of discussing the general phenomenon of retconning in court rulings, Sandberg isolates an example that he feels is a false reinterpretation of historical precedents and uses it to define ‘retcon’ generally. By his definition, all retcons are bad retcons. But all judicial interpretations of history fit the “story” of the law that the judge wants to give.

Sandberg also doesn’t get credit for first author to use ‘retcon’ in a law paper. Dan L. Burk’s “The Curious Incident of the Supreme Court in Myriad Genetics” appeared in the Notre Dame Law Review in 2014. Burk’s use of ‘retcon’ is more complex.

He writes: ‘whatever such cases originally meant or perhaps now should mean, the Supreme Court has repeatedly relied upon them to justify and shore up the products of nature concept. Throughout its cases on subject matter, the Court has in particular “retconned” Funk Bros. as the go-to citation for the Chakrabarty dicta on products of nature. In Myriad, Justice Thomas reviews Funk Bros. at some length, concluding that the treatment of the Funk bacterial inoculum serves as squarely analogous precedent for the treatment of Myriad’s genomic sequence. Thus, notwithstanding its actual holding, the case seems to have undergone hindsight reconstruction as a decision about the patentability of natural products. Thomas uses this to provide a veneer of precedent for the Court’s holding on gene patents.’

There’s a lot to close read there. The tone is overall neutral and perhaps accepting of the ruling. Though the adjective “curious” in the title (and the allusion to a detective novel about a narrator with autism) is at best ambiguous. The adjective “hindsight” shuffles further toward negative connotation. And “a veneer of precedent” is a mild-mannered outburst of carefully passive aggression. Justice Thomas is, after all, Justice Thomas, and the Supreme Court ruling in question is the currently definitive ruling on the topic. Rereading Burk’s first phrase, his resistance to retconning is present there too, since “whatever such cases originally meant” suggests an unrevisable first meaning linked to the later “actual holding,” and “or perhaps now should mean” suggest a distinct change in meaning and so a sequel.

So Burk knows he can’t reject a Supreme Court retcon, but he doesn’t have to be happy about it.

‘Retcon’ appears in only one earlier law review essay, Jeffrey Zeman’s “The Adventures Of ‘Superman’: A Narrative Worth Mediating,” published in Conflict Resolution in 2011. He writes: ‘In comic book vernacular, this phenomenon is often referred to as “retconning” a story. “Retcon” is short for “Retroactive Continuity,” a literary device used by comic book authors to change the known history of their characters—most often superheroes. Changing one element of a character’s past can alter the significance of all of that character’s future stories. Comic book authors are especially fond of using this device when they want to resurrect a character that previously died at some point in the often decades-long archive of superhero stories under a publishing imprint.’

By “this phenomenon,” Zemans means the two-stage termination clause of the 1909 Copyright Act which “created a dual term in the copyright to a work, one realized upon the work’s publication and the second occurring twenty-eight years later with the copyright’s renewal.” The clause is included in the law because “an author’s ability to realize the true value of his or hers work was often not apparent at its creation, but required the passage of time (and the marketing efforts by a publisher) to materialize.” Zemans likens the reevaluation opportunity to transporting the parties “back to the time of consignment in order to create a more equitable contract.”

Regarding the copyright of Winnie the Pooh, Zemans writes that A.A. Milne’s heir “learned with the benefit of hindsight: that Pooh had greater value than A.A. Milne had anticipated when he first signed away his interest in the anthropomorphic bear.”

While the change in Milne’s contract would certainly reflect hindsight, is hindsight the same as time travel? Zeman says Milne’s heir “looked back at the way the story had gone” while “standing from the retrospective viewpoint of the statutorily-created termination period.” That’s not returning to the past and changing it. That’s just looking at the past. ‘Retrospective’ and ‘retroactive’ are not synonyms.

Zeman’s analysis also reveals nothing about the judicial meaning of ‘retcon’ since it applies only to the specifics of the 1909 Copyright Law and its sequel clause. That leaves only Sandberg’s rejection and Burk’s begrudging acceptance of retconning decisions. Based on the term’s vacillating use in law review articles and in previously discussed judicial decisions, the legal meaning of ‘retcon’ remains contested.

Here is a set of words:

"Texas banned abortions after six weeks. Seven more states are copying the law. If the GOP wins in November, Virginia will be next. 'Well, I can tell you that would be me,' said GOP Lt. Gov. candidate Sears, 'I would support it.' The Virginia Senate is split. The Lt. Gov. casts the tiebreaking vote. If elected governor, Youngkin will sign it. Don't let Virginia be the next Texas. VOTE TODAY"

Here is a set of words:

Are those two sets of words the same set of words?

Yes and no.

Yes, if by ‘words’ you mean linguistic content.

No, if by ‘words’ you mean graphic marks.

Since ‘words’ are both linguistic content and graphic marks, the contradiction is unresolvable.

Which creates a problem for the definition of comics, since all definitions include the word ‘images,’ usually along with the word ‘sequenced’ (or ‘juxtaposed,’ but let’s not go down that rabbit hole right now). I call sequenced images the comics form (which is distinct from but overlapping with the comics medium), but however termed, graphic marks are images. Which means the graphic marks you are currently reading are images, and because they are also sequenced, they must be a comic (or at least must be in the comics form).

Spoiler alert: they’re not.

Explaining why they are not is complicated and requires a tool for prying apart words as graphic marks and words as linguistic content.

Look at those two sets of identical/non-identical words again. The are identical as far as their linguistic content, but they differ significantly as far as their graphic qualities. The first set is graphically formatted the way this paragraph is: all the letters are in the same font, are the same size, and are the same color. The words in the second set are also all in the same font, but they differ in size (which varies according to rows, with words in rows consisting of fewer words printed larger because each row is sized to have the same width) and in color (black or red).

Those graphic qualities may also indirectly alter linguistic content, since differences in size and the relative rareness of red gives greater emphasis to certain words, and emphasis influences meaning. Readers of each set are going to have different reading experiences due to the graphic qualities.

Since both sets of words are graphic marks, some graphic marks are therefore more graphic than others.

That claim is both true and complete nonsense.

It’s nonsense because being graphic isn’t a graded quality. The adjective ‘graphic’ is like the adjective ‘physical.’ Either something is graphic or it is not graphic.

But ‘graphic’ also refers to something that occurs in degrees. I would call that something ‘art,’ specifically ‘graphic art.’ Along the graphic-art scale, these words you’re reading right now are very low. They are still 100% graphic (because to be graphic is to be 100% graphic), but they are hardly or not at all graphic art. That’s because their graphic-art qualities are so minimal.

In contrast, the set of words in the second example are higher on the graphic-art scale. Though they are certainly not great graphic art, they still fall into the general category graphic art.

(If authorial intention matters, I can add that I made the second example in response to a request for a ‘graphic,’ one that could be shared as a social-media meme or printed as a poster or postcard. I also made the first example, which can be copied and pasted into the body of an email, with no concern about changing fonts, font sizes, or line breaks–and so no concern for graphic qualities.)

Since the second set of words consists of words that are higher on the graphic-art scale, does that mean it’s a comic?

Well, if a ‘comic’ is something that is in the comics form, and if the comics form is sequenced images, then the answer is (probably) no. That’s because I understand the second set of words to be a single image, and a comic requires at least two images. Since that concern distracts from the core question, look instead at this:

Whatever you call it, there are definitely two of it. And since I would call each an image, I would have to also call their combination to be in the comics form.

Unless each set of words is not an image. And here I mean ‘image’ to mean not simply graphic marks but graphic art or, because the art consists entirely of words, graphic word art.

So determining whether it’s a comic first requires answering this question: Where is the dividing line between words that have only minimal graphic-art qualities and so are not graphic word art and words that do have sufficient graphic-art qualities and so are graphic word art?

I have no idea.

I am confident though that the first example falls into the first category. Those words are graphic only in the sense that is akin to something just being physical.

I’m not sure, but I suspect the second example can be called an image in the graphic-art sense only if its graphic-art qualities exceed its linguistic qualities. In other words: if it’s more about how the words are rendered than what the words mean regardless of rendering.

In this borderline case, my gut votes no. The rendering primarily serves the linguistic content, and without the linguistic content, the set of graphic marks wouldn’t be sufficiently artful to be called graphic art. Though as soon as I type that opinion, I start hearing counter arguments in my head. Which gets to my next point:

Judgements will vary.

As a result, judgements about whether any particular sequenced sets of words are in the comics form will vary to the same degree.

Exploring his essay-titling question Has The Word “Retcon” Entered The Legal Vernacular?, Josh Blackman identifies three court cases that include ‘retcon.’ Because all three uses are by judges, ‘retcon’ now has an official presence in U.S. law. Because none of the judges provide a definition, determining what ‘retcon’ means requires some analysis.

The first example is from 2019, the same year as Somin’s law article discussed last week (along with the “lame attempts” to insert an explanation for Klingon foreheads into Stark Trek history). The word appears in a footnote from the Third Circuit Court of Appeals case Northeastern Freethought Society v. Lackawanna Transit System. Judge Hardiman writes: “Lehman predates modern public forum analysis but has been retconned into that framework.”

For context, the Freethought Society purchased ad space on Lackawanna, PA’s busses. Their ad would have displayed the word ‘Atheists,’ and the county rejected it, citing their standing policy excluding religious and atheistic material. The court ruled that the policy, and so the rejection of the specific ad, violated the First Amendment.

Arriving at that decision required weighing the transit system’s various arguments, including whether it was fair to subject a captive audience to the “Atheists” ad. That prompted Judge Hardiman’s reference to Lehman, AKA Lehman v. City of Shaker Heights, the 1974 case in which the Supreme Court ruled that “the blare of political propaganda” could be prohibited from bus interiors, rejecting local political candidate Harry Lehman’s argument that his Ohio town had infringed on his free speech. The Third Court, however, found the precedent irrelevant, since the “Atheists” ad was planned for the exterior of the Lackawanna busses and so no “captive audience” would have been involved.

Regardless, the Third Court understood that, even though in 1974 Lehman seemed only to apply to “car card” interior advertising spaces, retroactively the decision also applies to “modern public forum analysis,” including things that did not exist in 1974. Policies for government websites, for instance, fall under Lehman. That’s because:

Lehman predates modern public forum analysis but has been retconned into that framework.”

Unlike Klingon foreheads, pre-internet precedents now regulating portions of the internet are not “lame attempts” but are respected law.

Blackman’s second example is from the 2020 decision Gogel v. Kia Motors. Judge Martin, joined by two colleagues on the Eleventh Circuit Court of Appeals, writes in the final paragraph of the 32-page dissent:

“Either way we look at it—under our binding case law or under the Majority Opinion’s retcon interpretation of it—this record, when viewed in the light most favorable to Gogel, establishes a material issue of fact that requires denial of summary judgment. For these reasons, I respectfully dissent.”   

Andrea Gogel claimed that Kia Motors of Atlanta, Georgia fired her because of her sex (female), her national origin (U.S., unlike her managers in Korea), and for protected activity as Team Relations Department Manager. The court’s majority disagreed, ruling that Kia did not violate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. 

The dissenting opinion focused on the rules governing Gogel’s Title-VII related responsibilities. According to Judge Martin, the majority created a “new rule” that barred Gogel from discussing certain Title-VII processes with other employees at the cost of losing her own Title-VII protections. In short, Martin says no such rule exists, and the majority’s attempt to construct such a rule from “cherry-picked” precedents is a “retcon interpretation.”

Martin’s use of ‘retcon’ aligns with Thomas’s butt-headed Klingons discussed last week. It’s an insult. Or, as Simon summarized Thomas, it’s another “lame attempt.”

This suggest that, in legal contexts, ‘retcon’ has two possible meanings. The first is something like: a failed attempt to improperly insert a rule or interpretation into legal precedents. And the second: interpreting an earlier judgement to cover a matter that was not known at the time that the judgement was made.

The second definition of ‘retcon’ is correct. The first is not a definition of ‘retcon’ but of ‘failed retcon,’ or more precisely, ‘rejected retcon.’

Blackman identifies one other example, a tie-breaker in this first round of ‘retcon’ court usages. In the 2021 US v. Bryant, Judge Brasher writes: “It is telling that our sister circuits can give these clauses an operative meaning only by retconning them.”

Thomas Bryant is a cop convicted of trafficking cocaine and guns for himself and a gang for whom he and some of his fellow officers served as security guards and informants. After the First Step Act passed in 2018, Bryant brought a motion to reduce his 300-month sentence, citing that the law allows courts to reduce a term of imprisonment for “extraordinary and compelling reasons.” His reasons were his good behavior in prison, his higher sentence due to his going to trial instead of plea-bargaining, and the fact that sentencing guidelines were now lower. Whether those reason are “extraordinary and compelling” are secondary because the court first had to decide whether a key passage of the law applied to him at all.

Initially motions to reduce sentences had to made by the Bureau of Prisons, but because the Bureau so rarely did, Congress amended the law in 2018, allowing prisoners the ability to present such motions themselves. The amendment, however, did not update all of the act’s previous language, leaving the phrase “upon motion of the Director of Bureau of Prisons” in a key passage. Does the amendment revise that phrase too, adding an implicit “or motion of the defendant,” or does the original phrase now bar defendant-motions, even though defendant-motions did not exist when the passage was written?

Judge Brasher concluded that the ambiguous phrase is just a prefatory and out-of-date summary of the law as originally written and so does not bar defendant-motions. Previous courts had ruled oppositely, seeing the ambiguous phrase as not mere preface but as “operative” to the meaning of the sentence, citing other examples. This led to Brasher’s criticism: “It is telling that our sister circuits can give these clauses an operative meaning only by retconning them.” In short, the phrase can’t bar something that did not exist at the time; claiming that it does is retconning and therefore false.

I suspect Brasher is wrong. Courts routinely interpret laws to mean more than they appeared to have meant at the time they were written (thus a 1974 decision applies to government websites even though government websites did not and could not have existed in 1974). Retconning is a central aspect of the judiciary process.

Brasher may even be retconning himself. By retroactively applying the amendment’s allowance for defendant-motions in a passage that appears to prohibit them, he is reinterpreting the meaning of the original words to align with a later legal change (not unlike how the New Testament reconstructed the Old Testament out of the Tanakh).

Alternatively, his new interpretation is exactly that, something new, and so he is instead clarifying the full implications of the sequel that the amendment created out of the original text by negating parts of it. If so, the ambiguous phrase actually changed meanings. According to a retcon, there would be no change in meaning: the phrase always meant what it means now; we just didn’t realize it before.

Whether supporting a sequel or a retcon himself, Brasher’s accusation of ‘retconning’ is pejorative. He thinks his “sister circuits” are more Klingon butt-heads.

Meanwhile, I think we’ll need more judiciary sequels to determine what ‘retcon’ means in the U.S. legal system.

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