The Patron Saint of Superheroes

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.

Retcon is short for “retroactive continuity,” a form of revision common in pop culture but that is also—according to my co-author Nathaniel Goldberg and me in our book Revising Fiction, Fact, and Faith: A Philosophical Account—essential to understanding much more. Right now, for instance, the concept of retconning is taking on new legal significance.

I’m using ‘legal’ in the literal sense, ‘concerned with law,’ and in his article, Has The Word “Retcon” Entered The Legal Vernacular?, Josh Blackman identifies what is likely the term’s first appearance in an official law-related context: an essay by Ilya Somin published in the journal Cato Supreme Court Review in 2019. Somin describes a solicter general’s attempt to avoid a legal Catch-22 that bars certain regulatory cases from entering federal court:

“In a somewhat strange amicus brief on behalf of the federal government, Solicitor General Noel Francisco argued that Williamson County should be interpreted in a way that avoids the catch-22 by reasoning that the state exhaustion requirement only applies to cases brought under … the federal statute authorizing law suits for violations of constitutional rights … but not ones brought to federal court under … the law giving federal courts jurisdiction over ‘all civil actions arising under the Constitution, laws, or treaties of the United States.’

Somin is referencing Thomas’s analysis of Knick v. Township of Scott in a 2018 post on his personal blog, which is law-related but not official. The post is titled “Knick And Klingon Foreheads: Retconning Williamson County.” Thomas writes:

Thomas playfully but unfortunately cites Wikipedia for an incorrect definition of ‘retcon’: “a literary device in which established facts in a fictional work are adjusted, ignored, or contradicted by a subsequently published work which breaks continuity.”

The Wikipedia entry in turn cites a 2007 Telegraph article “One of these comic heroes really is dead” in which the author Sam Leith gets the definition of retconning correct. Describing the world of comics in which Captain America had just (temporarily) died, Leith writes:

Despite how the crowd-sourced Wikipedia page summarizes Leith, the described contradiction doesn’t break continuity. It retroactively reveals that continuity wasn’t what we all thought it was in order to avoid breaking it. That’s the opposite of ignoring established facts.

When Captain America returned a year after what is revealed to have been only his apparent death, Marvel illustrated Leith’s point: the gun used to kill him didn’t actually kill–the Doctor Doom technology instead unstuck him in time, allowing him to be rescued by his superhero pals.

As Somin mentioned, Thomas prefers Star Trek:

Thomas’s description suffers from a subtle form of retconning itself. Since the intricate Klingon make-up was created for the 1979 Star Trek: The Motion Picture, it did not exist during the TV show’s 1966-69 run. Though it’s also true that the original series operated on a much lower budget, Thomas would be equally wrong if he claimed that the reason that I do not now drive a 2031 Rolls Royce is because I can’t afford one. I predict that if such a thing as a 2031 Rolls Royce comes into existence it will be out of my price range, but that is not the primary reason why I do not currently own one. Thomas, presumably accidentally, retcons the idea of later Klingon make-up into an earlier decade treating it as though its use on the TV show were possible and even desirable but prohibitively expensive.

This case of retconning, even as an exemplar of bad retconning, avoids the even more aesthetically unpleasant recognition that Star Trek: The Motion Picture and all of the films and TV shows that followed it are not sequels of the original TV series. They are reboots. Or rather Star Trek: The Motion Picture is a reboot, and all that follow are sequels of it. Of course, the world of Star Trek: The Motion Picture is extremely similar to the world of the original TV series, but since no retcon can adequately explain how a planet’s population changed physical appearance in the course of an unnoticed decade, they are distinct worlds. And since later prequels insert variations of the 1979 Klingon make-up into the universe’s past, it now seems no change in appearance happened there at all. Even specific Klingon characters who appeared on the original TV show appear in later shows with ridged foreheads.

Regardless, Thomas’s use of ‘retcon’ in a legal context is strictly pejorative, what Somin summarized as “lame attempts.” His point is that the solicitor general attempted to insert a point of law retroactively, pretending that his newly devised distinction always existed. Because it clearly did not always exist, his retcon is rejected. The past existence of the new distinction could only be accomplished through a reboot, something as anathema to law as to Star Trek fandom.

Blackman also identifies the appearance of the word ‘retcon’ in three recent court cases—which I hope to explore next week.

You really just never know what’s happening in a student’s head.

I got my first full-time teaching job around 1990, a split position in a New Jersey high school, with one eighth-grade class in the middle school down the suburban road. There were maybe fifteen students in the room, and I still remember three of them pretty well. Apparently one of them remembers me too.

This email appeared in my inbox last spring:

“There is little chance you’ll recall, but you were my 8^th grade English teacher back at Edison Intermediate School in Westfield, NJ. Your class was one of the places I learned to fall in love with literature and literacy, particularly developing as a writer. It stayed with me, and it helped guide me towards work as a journalist and now an educator.  I’ve always wanted to say thank you.

“I have a number of memories from your class – for example, our acting out Romeo and Juliet – but what I remember most is that you encouraged me to see myself as a writer and to write about what I wanted – even if my 8^th-grade self mainly wanted to write gory stories.  😊

“I’m reaching out because I’m about to publish a book on middle and high-school literacy instruction, and I wanted to send you a copy as a way of thanking you. It’s a small gesture, but I hope it signals my lasting appreciation for the difference you made in my life.”

I responded:

“What a pleasure to hear from you! I do in fact remember you—you and only two other students from that class, so take that as a compliment. That was my first year teaching too, so an especially important one for me too. You really never know what kind of impact you have on students, so it’s very kind of you to contact me after all of these years. I’d meant to do the same for an influential high school teacher I’d had, but never did. Honestly, it’s incredible that I had any influence on you, let alone the one you describe below. And it sounds like you’ve been up to many impressive things—I would be delighted to have a copy of your book…. I look forward to reading it, and a huge congratulations to you on the publication.”

And Steve responded:

“You know, years back when I was at WHS, they announced you’d moved away. I went to the office to ask for your address to write you a thank you note, but I chickened out. I’m glad to be able to correct that so many years later.

“I’m so happy I get to share a copy of this with you.  If you ever make it back to the NYC area, let me know!  My wife and I bought a home in Maplewood, so not too far from the city (or Westfield, for that matter).”

Over the summer, Stephen Chiger and Paul Bambrick-Santoyo’s Love & Literary: A Practical Guide for Grades 5-12 to Finding the Magic in Literature arrived in my mailbox.

Steve taught high school English for a decade, winning the 2015 Educator of the Year award from the New Jersey council of Teachers of English, and he’s now a director of literacy for Uncommon Schools, training thousands of other teachers. Which is to say he has far far surpassed me. And his practical guide is NOT the kind of textbook that was available when I was getting my masters and teaching accreditation over three decades ago.

The introduction opens with a sample class discussion of Atwood’s The Handmaid’s Tale, with students probing whether Offred had a choice to have sex with the commander. It’s at a level of conversation I strive for in my college seminars. The first chapter continues with an epigraph and then book excerpt by Toni Morrison, before contrasting two 11th grade reading lists. The first looks a lot like the 1980s-era curriculum I read (or, alas, skimmed) as a high schooler: Hardy, Homer, Steinbeck, Wordsworth, Dickens, Shakespeare. Steve and Paul suggest using the equally rigorous second list: Hurston, Homer, Lahiri, Kaminisky, Allende, Baldwin, Shakespeare. Graphic memoirists Alison Bechdel and Marjane Satrapi earn mentions and an excerpt too.

The tone of the guide is pleasantly complex: it combines inspirational directives (“if you want students to grow, nourish them with challenging texts”) with no-nonsense practicality (“Asking students to read for claims presupposes a philosophy that we want to name: all texts–from Instagram posts to Victorian novels–make arguments”). It bridges those two poles with an impressive array of example lessons, providing both nuts-and-bolts specifics (“Slow down and reread–increase your annotations to every 2-3 lines”) and overarching aspiration (“Great discourse often feels magical to the observer, but there are no tricks at play. Skilled teachers know it takes loads of preparation for a discussion to run like clockwork”).

I could continue, but I feel both indirectly narcistic (is all my praise of Steve’s hard work just round-about self-congratulation?) and retroactively inadequate (the portrait of 6th-grade teacher Angela Thomas reveals just how much I was NOT doing back when Steve was a student in my classroom). Still, there are probably worse emotional check-and-balance combinations than pride and chagrin. And leaning into the pride just a little longer, I happily imagine myself in a long line of folks evoked in the Acknowledgements:

“We would also like to thank every teacher, professor, mentor, friend, and family member who pushed or nurtured us. It’s an admittedly long list, and we are both the better for it.”

I don’t actually remember teaching Romeo and Juliet in Steve’s class, but I do recall the open-topic creative-writing assignments. I suspect middle-school Steve was still mentally immersed in the Poe unit that preceded them. He has since clearly moved beyond “gory stories.”

This is the last (for now at least?) of my appropriation/transformation series. I made this one and two others (from Picasso and O’Keeffe paintings) to explore the ambiguous legal line that the U.S. court system (as well as Canada’s, England’s, and other nations’) continues to leave undefined when it comes to the (possible) fair use of images for new artworks. Klee’s painting is from 1922, so presumably beyond any copyright infringement statute.

And here are parts ONE, TWO, THREE, FOUR, and FIVE of my fair use musings.

[Update: SCOTUS ruled on May 18, 2023, which I discuss here.]