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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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