Uploading the image above has become a New Year’s tradition for me. But I’m sad to say that, once uploading this, the year has never been happy for me. I first uploaded it onto Instagram on December 31, 2019. Well, 2020 was not the year I’d be going on new journeys — definitely not geographically, though I did intellectually.
I uploaded this again on December 31, 2020. Then, on January 12, 2021, my mother died. Twelve days in, and 2021 was already the worst year of my life. I uploaded the image again for Dec. 31, 2021. Then in 2022, my father, over whom I was primary caregiver, died. I uploaded it again on Dec. 31, 2022. Throughout 2023 a new horrible situation was imposed on me, one that continues as I type this. 2024 was not happy for me either. The imposition will be finalized in 2025. If 2025 is a good year for me at all, it will be in spite of it.
But I insist on uploading this image yet again. As I see it, if the prehistoric fish in the image failed in its first six attempts to come onto land, I would not be surprised if it tried again. I resolve to upload this image every time until I finally have a Happy Stu Year.
or, How Thinking Non-Literally Is Not a Lie But Integral to Knowing Reality
Stuart K. Hayashi
“People need dramatic examples to shake them out of apathy, and I can’t do that as Bruce Wayne. As a man I’m flesh and blood. I can be ignored. I can be destroyed. But as a symbol? As a symbol I can be incorruptible; I can be everlasting.”
—Batman Begins
Fiction and representational art are not literal, and so many famous people have said half-jokingly that fiction and representational art are “lies.” In his book Sein Language, Jerry Seinfeld quipped that he appreciates how bookstores are divided by section “into fiction and nonfiction. In other words, these people are lying, and these people are telling the truth. That’s the way the world should be.” Likewise, in an interview for the May 1923 issue of The Arts, Pablo Picasso said, “We all know that Art is not truth. Art is a lie that makes us realize truth, at least the truth that is given us to understand...” Similarly, in Minima Moralia, Frankfurt school neo-Marxist Theodor Adorno pronounced, “Art is magic delivered from the lie of being truth.”
Seinfeld is half-joking. Picasso and Adorno think they are being clever and cute in stating a paradox that good art is both a lie and the truth. None of these people are entirely serious in saying good art is a lie. But what bothers me is that they do, on some level, believe it, otherwise they wouldn’t think this is such a funny irony. Their phrasing is woefully misleading. I do think there is a funny irony here, but not the one they believe. The actual funny irony is this:
Our ancestors came to experience and interpret sensory stimuli in a manner they knew to be nonliteral. That is how symbolism arose.
It is through this cognitive process that we have gained a greater understanding of what happens literally.
In short: it is through a mental methodology in which we understand sensory stimuli in a nonliteral manner, that we gain complex knowledge over what does happen on the literal level.
This essay is about semiotics — the study of symbols. I thank Asher Wolfstein for introducing me to the term. Before then, the most I had known of academic study of this topic was silliness from The Da Vinci Code about “Harvard symbology professor Robert Langdon.”
As for the men I quoted above, here is the source of the confusion: “lies” are being conflated with every interpretation that is “nonliteral.” Every symbolic representation of events is nonliteral. Hence, the fallacious syllogism goes, “Symbol representations of events — such as fiction and realistic paintings — are not what happened literally. Lies are not what happened literally. Therefore, symbolic representations of events — such as fiction and realistic paintings — are lies.”
While it is true that all lies are nonliteral, it is it not true that everything nonliteral is a lie. And to the degree that use of the nonliteral in communication might be a form of tricksterism, there is another fashion in which this can be phrased. It is that all liars are tricksters, but not all tricksters are liars.
Not Literal and Not Lying
A lie is told under the following circumstances. Person 1 presents to Person 2 some claim that is not true literally but which Person 1 intends for Person 2 to interpret as the direct literal truth. Fiction honestly presented as fiction — and this includes performances by stage magicians — does not consist of lies, as the art is not presented as the literal truth. Yet I will argue in this essay that though artworks are not the literal truth, an art piece resonates with you when you interpret it as dramatizing some principle that you interpret as being true literally.
There is an entire profession or discipline of artists who are tasked with depicting reality for the purpose of providing scientific understanding. A wildlife painter is supposed to paint animals and their environments accurately. Our knowledge of extinct prehistoric animals is far from perfect and complete. But the job of “paleo-artists” is to portray prehistoric animals in a manner that is up-to-date and consistent with what is known at the time about these beasts. A well-shaded painting of a Tyrannosaurus with three fingers on each hand might be quality art, but it would not be quality paleo-art; the T. rex having three fingers on each hand instead of two is a glaring inaccuracy to scientists.
Let’s say that for a book that is to be educational for children, an artist provides a detailed and accurate painting of a male lion.
The purpose is to convey to small children what a lion looks like. For the painting, the painter did not use a direct photo reference. Instead, the painter consulted many different photos of many different individual male lions. Hence, the lion shown in the painting is not based on any one male lion in particular. Is the painting a lie? No. It is a symbol, and it is a symbol that conveys accurate-enough information to children on what a lion looks like.
Symbolism occurs when X is not Y literally but X still represents Y in your mind. As noted in Introduction to Objectivist Epistemology, symbols are inherent to the use of concepts. A concept is an abstracted symbol representing all particular instances of an entity or event, all grouped together by their shared traits relevant to that which defines the concept. The concept “dog” encompasses all dogs that have ever lived and will ever lived, both ones you have observed and ones you haven’t, and includes all breeds. The concept “dog” is symbol for all dogs that exist literally. And the word “dog” symbolizes, in your mind, the concept of “dog.”
And it’s not the case that these words are only for communicating oneself with others. Rather, you gain clarity from introspecting to yourself with these words. Languages are sometimes presumed falsely to be no more than tools of communication. But first they are tools of thought, of thinking to oneself. You use words to communicate with others but, even more importantly, you use them to communicate with yourself. Symbols are inherent in this. Symbols are integral to rational thought itself.
You may remember the silly painting of a pipe that has the caption “This is not a pipe.” By that, the painter meant it is not a pipe literally; it is a symbolic representation of a pipe.
There is great variation in how precise symbols can be in how they depict the entities they represent. The word snake does not come very close in providing a visually accurate representation of a snake, but a wildlife photograph of one usually does. Both of those are symbols. Earlier I mentioned a drawing of a T. rex that inaccurately places three fingers on each hand. That is a symbol of a T. rex, but that symbol is less preferred by scientists than a drawing that more accurately places two fingers on each hand. That some symbols are less accurate than others is not a fault of symbolism per se. In the marketplace of ideas and communication, the symbols that are inadequate in how closely they represent the truth can be replaced by ones that do it better.
Our Ancestors Coming to Realize That They Can Interpret Sensory Stimuli in Ways Other Than Literal
How our ancestors came to understand symbols might have gone this way. There are animals that camouflage to avoid being eaten by predators. Jackson’s chameleons are an example. When an animal in front of you has camouflaged successfully, it means that you are looking at the animal literally in front of your face and yet you do not notice it. Rather, you misinterpret the animal as part of the scenery.
When our ancestors discerned that animals are capable of camouflage, that was a big deal in the history of epistemology. It meant our ancestors came to an important realization. That was that someone can interpret and experience a sensory stimulus in a manner other than what is happening literally. In the case of the chameleon in front of you escaping notice, what is happening literally is that the chameleon is in front of you. But, in your interpretation, it as though the chameleon were absent. It matters a lot for our ancestors to come to understand that someone can interpret and experience a sensory stimulus in a manner other than what is happening literally. That is because that is what a symbol is. It is what happens when you are engrossed in an exciting work of fiction. If you are engrossed in an adventure novel, you react emotionally as though you were there on the adventure. But what happened literally was that you spent hours staring at a series of standardized markings on sheets of paper.
If a camouflaged animal successfully escapes your notice, then you never learn that this particular interpretation of the event was different from what happened literally. By contrast, when you read a novel that you love, you know consciously that the events described did not happen literally. But, in both instances, the interpretation and the experience of the sensory stimulus were something other than what happened literally. And insofar as a clever handling of a truth that is far from obvious might be tricksterism, this understanding about camouflage might be considered an instance where tricksterism is not a form of scientific fraud but instead a clever advance in disciplines related to science.
When I first wrote the above, I thought I might have been the first to make that connection. However, in a 1998 book on popular science, biological anthropologist and neuroscientist Terrence W. Deacon also argues as much.
Accurate chemical formulae discovered by scientists are all symbols. But they convey what happens literally. The formula showing how the chemical reaction between hydrogen and oxygen creates water is a symbol. But that is also what happens literally.
By definition, symbols are nonliteral. But, when used properly, they help us understand what happens literally. That is the true funny irony in this: the fact that we can experience and interpret stimuli in a manner that is nonliteral has given our species has an unprecedentedly complex ability to comprehend what happens literally.
And, of course, fiction is also not literal but only literary. Yet I argue that, to the degree that you are emotionally attached to an artwork, it largely rests upon your interpreting some aspects of the artwork you do deem to be true literally.
How Good Fiction Is True When I was in the fifth grade, my teacher waxed enthusiastically about how fiction is rich with symbolism. However, I still did not comprehend what that meant. When someone talked about symbolism in art, I thought it meant the artist being pretentious and purposely hard-to-understand.
What came to mind was a hipster splashing a blotch onto a canvas and announcing, “This is the human condition. This spatter of paint dramatizes the capitalist oppression of the masses.” But symbolism does not have to be that way. Alternatively, a deliberate symbol in a story is especially successful if it can be taken at face value as just part of the story while, on another level, it can be recognized as demonstrating something deeper at work. A case study in such symbolism is in Citizen Kane. Charles Foster Kane is married and he keeps getting richer. But his emotional bond to his wife is weakening. We are treated to a montage that shows, over the years, Kane eating dinner with his wife at a long table. Each spouse is on the other end of the long table. Every time this happens, the table is longer and Kane is shown being even more callous toward his wife. If we take this only straightforwardly, it makes sense: we see that as Kane gets richer over the years, he can afford to purchase an even longer table. But this represents something more abstract: the growing length of the table represents the growing emotional distance between Kane and his wife.
Both because of the aforementioned obscurantism of many “modern artists,” and because I made the conflation that only that which is literal is real and true, I thought that symbols were all “fake” and too far from being straightforward. That is a variant on the fallacy discussed in the opening of this essay.
But when what you know to be a work of fiction is emotionally gripping to you and sticks with you, it is because you implicitly interpret that story to be true on a deeper level. My go-to example is the movie Back to the Future. We know that in real life, you cannot travel back in time in a DeLorean. But, in real life, people do have a difficult time relating with their parents and do wish there was a way to be able to meet them on mutual terms. In real life, nerds are subjected to bullying. Confronting these issues directly is usually so painful that we prefer to avoid them.
But when explorations of these issues are repackaged in a more-fantastical setting, that creates some degree of psychological distance that makes it more manageable, mood-wise, to confront them. George McFly does not exist on a literal level. But his story is a symbolic representation that gives us an idea of how we can address the topic of bullying: either continuing to submit to the bullies or stand up to them. The latter approach is riskier but it is ultimately more meaningful.
The first part of what Picasso said is misleading. Art is not a lie. Art is a symbolic representation. And not all symbolic representations are lies, just as an accurate painting of a male lion is not a lie even if the painting is not based on any one particular male lion. And when an artwork stirs your emotions, it is because you interpret it as a symbolic representation that faithfully conveys a principle that is true.
When a cherished memory of an artwork lingers in your mind, it is because, at least on some emotional level, you judge it implicitly as using symbols to convey a truth about human psychology.
Science communication consists of using nonliteral means to elucidate on what happens literally. Likewise, when you enjoy artwork, it is because, on some level, you experience it as a nonliteral means of dramatizing what you interpret to be true literally.
Even Factual Events Can Be Symbols
Even an account of true events can be a symbol. The story of the persecution of Galileo is a series of events that happened literally. But when people cite the example of Galileo, it is to present it as a case study of something that might still happen today. They are warning that, once again, there might be similar instances of someone being mistreated for telling the truth. As this happens, the account of Galileo and his punishment are symbols of similar injustices that might be repeated but should not be. What happened to Galileo, happened literally. But in the context of today’s society, you are not Galileo literally. Still, if there is a danger that you might be punished for speaking the truth, Galileo can be a fitting symbol for you and your situation.
As you are not Galileo literally, but your situation might become comparable to his in the relevant context, the use of Galileo as a symbol can convey to you and others the literal nature of your situation. Once again, presentations that are nonliteral can convey accurately a fact that is literal.
Yes, as words are tools of cognition and comprehending reality, that applies to language as a whole. I could eat something that kills me. My meal could poison me or cause me to choke to death. But in the end, it is the case that I eat to live. Likewise, people often use language to tell lies. But as language is instrumental to knowing reality at all, it is ultimately the case that language is the tool for learning, processing, and transmitting the truth. The same principle applies to imagination. As I have written before, the Wright brothers needed vibrant imaginations to conceive of the airplane. Imagination is imperative for deducing causal connections between separate events, and imperative for all long-term decision-making. As I said in my earlier essay, though people often use their imaginations to indulge in delusions, imagination is really the tool for adhering to reality.
And I can make an addition to all of the above. Hipsters have given us the impression that symbolism in art is about being nebulous and cryptic in message. But I hope I have established in this essay that, overall, symbolism in art is ultimately about providing information and ideas with the utmost clarity.
I notice that almost every time “privilege” is cited like this on social media, it’s seldom the case of the citer merely asking others to be mindful that the achiever had privileges that others didn’t. For instance, it would make sense for someone to say, “Having been born into wealth made it much easier for the nineteenth-century British chemist Henry Cavendish to discover particular chemical elements before other people did. That doesn’t take away from the fact that he made wise choices, of course, that other rich men had not.” Rather, the citation of privilege is almost always done to deny the achievement outright. It’s almost always along the lines of “The arrogant white businessman thinks he deserves the accolades because of what he accomplished. But it was his privilege that put him in the position in the first place where he could accomplish anything,” and then that’s where the rhetoric concludes.
For example, maybe you will be waxing about how impressed you are by Steve Jobs and Stephen Wozniak having founded Apple Computer. An anti-capitalist will chime in that this is actually because of privilege. The main reason, that anti-capitalist tells you, why the Steves were able to do this — as opposed to other people — is that the Steves were going to school in an area that was geographically close to the capital of the USA’s engineering talent. After all, Wozniak had the privilege of being the son of an engineer who worked for Lockheed-Martin. That gave him access to tools, equipment, and specialized education that other people did not have. That area had already been Silicon Valley since the Great Depression when Hewlett-Packard was founded.
As promulgated by U.C. Berkeley linguist George Lakoff, “Every businessman has used the vast American infrastructure, which the taxpayers paid for, to make his money. . . . He got rich on what other taxpayers paid for: the banking system...and the judicial system...” On that account, Lakoff concludes, “There are no self-made men!” That, of course, is the “You Didn’t Build That” Fallacy, which I skewered over here. In the citation of privilege, the implication is, You didn’t build that; your privilege made that happen. At the very least, the credit you receive for an accomplishment had more to do with your preexisting privilege than did any proactiveness on your part.
When an anti-capitalist “corrects” your praise of an achiever like Steve Jobs, you might notice something conspicuous about the correction. Contrary to what the “correction” falsely insinuated, your praise of the Steves’ achievement was not something you were contrasting against other people. You weren’t saying, “Steve Jobs achieved this, as opposed to you. Steve Jobs achieved it, andyou didn’t, you dummy!” Rather, you were impressed that anyone did this at all. But rather than be satisfied that the good act was done at all, it’s not unusual for anti-capitalists to misidentify it as some zero-sum game where any one person’s gain must come at the material expense of everyone else.
More to the point, here is why “Privilege, or it didn’t happen” is a fallacy. Even if it is true that the achiever was born into privileges that gave the achiever a head start, it doesn’t invalidate your premise that the achiever still made choices for which accolades are deserved. The reason is that many other people were born into the same privileges as the achiever, but, on account of different choices, did not perform the feats that the achiever did.
In the case of Stephen Wozniak: the fact is that there were hundreds of other white boys his age, who were the sons of Californian engineers, attending schools in the same state that were similar to his own. But those other sons of Californian engineers did not invent the Apple II. Stephen Wozniak did. Even if the “privilege” made it easier for him than it otherwise would be, the privilege was not sufficient. The missing pieces that needed to be added were the choices of Steve Jobs and Stephen Wozniak, the initiatives they undertook.
I would argue that there are cases where some people’s privilege can enable them to overshadow others in terms of who gets the credit. I think sexism did play a part in how, for decades, Rosalind Franklin’s role in the discovery of DNA’s double helix structure had gone overlooked. One might say that it was because of white male privilege that James Watson and Francis Crick got more attention than she. But I think such a concession is not satisfactory to someone who keeps citing privilege. The privilege-citing anti-capitalist can say that it was because of Rosalind Franklin’s own privilege that she, as opposed to some nonwhite gentile, was in a position in the first place where she could ascertain an image of the double helix structure.
Unearned social privileges do exist. But when someone — even a very privileged person — accomplishes an important feat, it’s usually the case that there were many other people who bore those same privileges but refrained from that feat. The choices of individuals are still what make the difference. And for that, they still deserve credit. To the degree that you make your own choices — choices not made and risks not taken by people from backgrounds similar to your own, and who have the same privileges that you do — you are indeed self-made in character.
Reading the local newspaper, I have been troubled, but not surprised, to see letters to the editor trying to whitewash Vladimir Putin, Donald Trump, and their abuses of individual rights. One especially creepy letter came at the end of February in 2024 by one Lane Yoder. Mr. Yoder has had a role in the Libertarian Party of Hawaii. I met him face-to-face years ago. Although it is clearly a self-contradiction for a self-proclaimed advocate of liberty to whitewash someone such as Donald Trump, I found it consistent with how Mr. Yoder has behaved in the past.
I wrote a letter in response, which the Honolulu Star-Advertiser published on March 4. First I will show the version the newspaper printed. Below that I will provide the version I sent to the newspaper.
A recent letter poses, “After railing against Donald Trump as a compulsive liar, those with Trump derangement syndrome are lecturing us to ‘take him literally’ when he says he will encourage Vladimir Putin to attack countries that are delinquent in their NATO payments” (“Make up your mind on Trump’s credibility,” Star-Advertiser, Feb. 22).
Far from what the author insinuates, there is no internal contradiction there. When someone who has shown himself to be both dangerous and wishy-washy issues threats, erring on the side of caution means still having to take those threats seriously.
It is not advisable to cave in to Trump’s extortion. And the actual “Trump derangement” is not a legitimate concern about his dangerous actions, but the insistence on excusing them.
Stuart K. Hayashi
Mililani
____________
What I sent to the newspaper:
In his Feb. 22 letter, Lane Yoder poses, “After railing against Donald Trump as a compulsive liar, those with Trump derangement syndrome are lecturing us to ‘take him literally’ when he says he will encourage Vladimir Putin to attack countries that are delinquent in their NATO payments.” Far from what Mr. Yoder insinuates, there is no internal contradiction there. When someone who has shown himself to be both dangerous and wishy-washy issues threats, erring on the side of caution means still having to take those threats seriously.
Mr. Yoder then challenges, “If they really believe Trump’s word has somehow become gospel, why aren’t they devoting their energies to warning delinquent NATO countries to pay up?” Simple. It is not advisable to cave in to Trump’s extortion.
And the actual “Trump derangement” is not our legitimate concern about his dangerous actions, but this insistence on excusing them.
I have previously written (1, 2) of the ethical problems of trying to justify governmental actions by appealing to the idea that there is a “Social Contract.” I especially warn of the horrors that come with the interpretation advanced by Jean-Jacques Rousseau and Thomas Hobbes. The alternative interpretation of Social Contracts that is promoted by John Locke, Thomas Jefferson, Paradise Lost author John Milton, and Aristotle is more benign and pro-liberty, but remains ultimately inadequate. In reality, having a morally-just constitutional liberal republican Night Watchman State does not hinge upon any sort of Social Contract.
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The Fundamental Difference Between Governmental and Nongovernmental Action
The big-governism interpretation of the Social Contract, as advanced Rousseau and Hobbes, is implicitly a rebuttal to any free-enterpriser’s objection to intrusive governmental action. We free enterprisers advocate a constitutional liberal republican Night Watchman State. Free-enterprisers recognize what is the fundamental distinction between action that is governmental versus action that is nongovernmental. Civilians are supposed to be peaceful. True, sometimes the government can delegate some authority to specific private citizens to carry out specific forms of violence. That is what the Confederate States of America did for private slaveholders — delegate to them the authority to wield violence against slaves. But, for the most part, except for such cases, violence by private citizens is unlawful. Hence, when Private Citizen A initiates the use of force against Private Citizen B or her private property, it is proper for the government to apply retaliatory force against Private Citizen A.
In contrast to private citizens, the ability to threaten and exercise violence against those who oppose its will, is inherent to the institution of government. If you break the government’s laws, the government will punish you. The more you resist compliance in receiving the punishment, the more the government will escalate the degree of physical coercion. That applies even if the initial penalty is a civil fine. Someone who consistently refuses to discharge a civil fine is deemed to be In Criminal Contempt of Court. The government does send armed men after those who are in criminal contempt. Someone who resists police too vigorously will be met with violence. That is the reason for deaths that come from altercations with police.
The institution of government is in contrast to the peacefulness that is expected of private civilians. As noted by Mohandas Gandhi, the very nature and job of government — as an institution — is to threaten violence on those who oppose its will. And this violence by the State is at least tacitly authorized by a large enough proportion of the citizenry. That tacit approval is part of the Social Contract argument of Rousseau and Hobbes. However, as we shall see, that tacit authorization is not as strong a foundation for ethical argument as Rousseau and Hobbes presume it to be.
Governmental action is ultimately enforced at gunpoint. For that reason, we free-enterprisers caution that governmental action must be applied only sparingly. Governmental action is only justified properly in response to violence against person or property that someone has started. The State is right to intervene against physical battery, and to stop and punish rape and murder. It is also to intercede against one party poisoning another, whether this poisoning is intentional or not.
Moreover, you cannot live your life peaceably and sustain yourself if others can exercise force to deprive you of control over your physical possessions. Hence, a State is right to penalize property damage, vandalism, and theft. The category of “theft” properly includes violation of a content-creator’s intellectual property rights. Fraud, contract breach, and even defamation are indirect methods whereby a perpetrator deprives innocent victims of their-needed control over their private property. Consequently, the State is right to quash fraud, contract breach, and defamation.
What makes a contract breach so wrongful is pertinent here. The wrongness of an actual breach of contract, after all, is invoked implicitly in support of the version of the Social Contract foisted by Rousseau and Hobbes.
Suppose that Steve and I forge a contract. Steve agrees to relinquish ownership over his car to me. In exchange, I perform a peaceful service for him. First Steve hands me the car keys and I drive off with his automobile. Then I never perform the service. The ultimate result, then, is theft. It is physical coercion in two respects. First, Steve relinquishes control over the car to me only upon fulfillment of a particular condition: that I perform the service. In the absence of my fulfillment of the condition, I am physically possessing and maneuvering the car against Steve’s consent.
And there is a second, more subtle, use of force. Steve handing me the car keys was only willful on the condition that, upon the the mutually-agreed future date, I perform the task Steve wanted. As I failed to perform the service, Steve handing me the car keys was ultimately not something to which Steve consented. Here, Steve placing the keys in my hands was a form of physical force — I manipulated Steve into making bodily movements that did him harm.
When the government comes after someone for having breached contract, then, the government is merely retaliating against the party that started the force. This understanding of contracts, as we shall revisit, is twisted in the version of Social Contract ideology that is propounded by Rousseau and is implicitly invoked by modern politicians like Alexandria Ocasio-Cortez.
Rousseau’s Social Contract Rationalizes That You Authorized Every Imposition, and Therefore These Are Not Impositions
Prior to the 2024 reelection of Donald Trump, we have often heard the USA flatteringly described as a liberal democracy. But few among who have used that term have noticed that among those two words, the one that is more important is liberal. Liberal, in this context, refers to the classical-liberal laissez-faire liberalization that is embodied most consistently in a constitutional liberal republican Night Watchman State. This means that even as majority votes decide which persons get into office, the government recognizes that your right to live peaceably is so important that this right is something not subject to any vote — no voting majority and no democratically voted-in official can overrule it. The State should have such little say over peaceful behavior that even if the President of the United States is someone as crummy as Donald Trump, you would not need to worry because that person has no authority to overrule the peaceful actions of your private life. To the extent that freedom can be preserved against Donald Trump, the American republic — at its best — was founded to be less of a liberal democracy than a democratic liberality.
Yet, beyond contracts, the sad truth is that much legislation, even in voting democracies, is not to counter the initiations of the use of physical coercion. Nay, the legislation targets nonviolent people, and that means the government is the perpetrator instigating the force. Suppose you are alone in the privacy of the home that you own, and you smoke a joint. And suppose that marijuana is illegal where you live. And imagine that police are sent to apprehend you over this. This is an instance of the government instigating the force upon an innocent person.
And that happens with governmental controls over many commercial transactions. Suppose Jake and I have an arrangement. The law is that no one is to be paid for work for less than $15 an hour. Yet I agree to work for Jake for $4 per hour. Jake and I are not harming anyone physically. Yet insofar as the law is enforced, the government is tasked with threatening punishment upon Jake. There is nothing new about this. It is not as though this started only with the horrid 2024 reelection of Donald Trump.
Here is the rebuttal from the version of Social Contract theory by Jean-Jacques Rousseau and Thomas Hobbes. It is as follows. You, sir or madam, think that if you disobey the law but do not hurt someone else’s life or belongings directly, that the State is the party that is starting the violence upon you. You think the government is starting the fight and violating your consent. You think that if you are being peaceful in paying someone an agreed-to wage that is less than the legally mandated minimum wage, that is okay because all parties consented. Likewise, you believe that if you smoke a joint in private on land that you own yourself, even as that is unlawful, it is still the case that all pertinent parties consented. But no, that is not the case.
The Rousseauian version of the Social Contract theory continues. It says that by being born into, and living in, society, you tacitly sign an implicit contract with the rest of society. In this implicit contract you agree to conform to every ordinance and statute enacted. And, Rousseau says, this agreement on your part to follow every law — no matter how misguided you personally judge that statute or ordinance to be — rightfully overrides all your personal rights to life and belongings.
As stated in an English translation of Rousseau’s French, living in society is “the total alienation of each associate, together with all his rights, to the whole community...” This “alienation” from total autonomy is “without reserve, the union is as perfect as it can be...” The reason is that the “constant will of all the members of the State is the general will...” Ultimately “The citizen gives his consent to all the laws, including those which are passed in spite of his opposition, and even those which punish him when he dares to break any of them.”
Yes, continues the argument, by living in society you tacitly agreed to obey every law, as foolish as you may perceive any of them. That includes laws against smoking marijuana privately on land that you own. Should you do that, you instigate a breach of contract. You have violated the contract you have made with the rest of society. Hence, when the government comes after you, the government is not the party that has ignited the use of force. A far as the use of force goes, you started it. On this interpretation, the State penalizing you is only your just deserts. This argument is what I call “The Social Contract Song-and-Dance.”
There Is an Implicit Mutual Understanding Between Government and Governed, But That Is Not a Contract
Rousseau and Hobbes are correct that there is always an at-least-tacit mutual understanding between the government and the governed. Suppose that Ted is the government’s chief executive, and Mike, Wade, and Joe are under Ted’s jurisdiction. Then Ted takes police action against Mike. Ted has Mike apprehended. And suppose that Wade and Joe are aware of what Ted is doing to Mike. But, like the rest of the people under Ted’s jurisdiction, both Wade and Joe refrain from violently coming to Mike’s aid against Ted.
In this instance, there is an at-least-tacit mutual understanding between two parties: (1) Ted and (2) Wade-and-Joe. Wade-and-Joe at-least-tacitly agree with Ted that Ted will be able to enforce his will upon all residents as Wade-and-Joe employ no physical force of their own to counter Ted’s will. Thus, when I say there is an implicit mutual understanding between the government and the governed, this is what I mean. It is that both parties know what behavior is expected of the other in this arrangement, and neither party will undertake dramatic action to change this arrangement.
I agree with Rousseau and Hobbes that there exists this implicit mutual understanding between an administration and those its reigns over. And, for many people, observation of this implicit mutual understanding makes it seem plausible that working government and civilization gain their legitimacy from adhering to something that resembles an underlying contract. Even if the arrangement is not exactly one, people assume, the resemblance is close enough to a contract justify the use of that word to describe it. Insofar as a contractual agreement is valid, after all, there should be a mutual understanding between the parties involved.
However, contrary to Rousseau and Hobbes, this implicit mutual understanding should not be confused with contractual consent. Rather, when it comes to fulfilling the conditions needed for a contract to be sound, the presence of mutual understanding is necessary but not sufficient.
Indeed, this sort of implicit mutual understanding between government and the governed, is something that exists in all governments, no matter how oppressive. That implicit mutual understanding existed between the dictator Idi Amin and the Ugandans he oppressed. That implicit mutual understanding also exists between a mafioso and the small businesses from whom he extorts money. It also exists in intimate-partner abuse, between the abuser and the abused. In all of these cases there is an implicit mutual understanding, and Rousseau and Hobbes ignore the actual reason why the governed people refrain from resisting the government. It is not that the governed people necessarily find themselves morally condoning the government’s behavior deep down in their hearts. More often than not, it is that these governed people are simply complying under duress.
And that can apply to the above scenario with Ted imposing his will on Mike as Wade and Joe look on. Suppose Mike smoked a joint on his own land, despite smoking a joint being illegal. Maybe Mike paid another consenting adult a wage that was below the assigned minimum. Ted, as government official, is the party instigating the force. If Wade and Joe privately sympathize with Mike, but lift no finger to defend him, it is because they, too, are fearful and cowed into submission to Ted.
The Modern First-World Version of Rousseau’s Social Contract Argument Adds “Democracy” and the Distortion of the Idea of Consent As Something Offered Collectively
Modern politicians in the First World are at least somewhat aware of objections like the one I have made above. For that reason, modern politicians who repeat Rousseau’s argument will emphasize two other components that Rousseau did not place as much emphasis on.
These modern First-World politicians say that our having a “democracy” is what especially justifies the Rousseauian Social Contract. They combine this appeal to “democracy” with their own presumption that consent is not something offered or withheld by any individual, but is instead something offered or withheld by some collective of society. That presumption is based on the broader premise that decision-making, in general, is something that is not done by the individual but instead by some collective of society. (This notion that the unit that makes decisions is a social collective, rather than the human individual, is one I refute in further detail here.)
The new version of the argument goes like this: Maybe it is true that, contrary to that monarchy apologist Thomas Hobbes, there is no actual Social Contract between a king and his subjects. Not one peasant had any say in whom the next monarch should be. Most monarchies are hereditary, after all. But in our times, we live in a democracy in which adults can vote. We can vote for representatives who draft the laws and enforce them. And the officials whom we elected are also the ones who appoint and confirm judges for our courts. Sometimes there are even ballot initiatives on which we, the citizens, can vote directly on what a law is to be. Maybe the majority of people votes that anyone who has been caught imbibing marijuana on her own private real estate should be criminally charged. Furthermore, maybe the minority of voters has voted against this law.
The argument goes on: once this statute is enacted, it is not the case that individuals in the majority are imposing their wills on the individuals who are in the minority. Nay. There is one body-politic, one people. The outcome of the vote is, to employ a term of Rousseau’s, the “general will” of that one body-politic. Maybe you want to smoke a joint in private on land that you own. And maybe you voted against the statute that criminalized such an action. If it was a ballot initiative, you may have voted against it directly.
You may even have voted against the statute indirectly if the statute was the result of a vote by a legislative body. If that was what happened, then when you voted on which lawmaker would represent your district, you made sure to cast your ballot against the incumbent whom you knew would vote to maintain the criminal ban on cannabis.
But, the argument concludes, you forget that you are just part of the greater collective of the body-politic. In the vote, the collective decided for itself that it would criminally punish the smoking of marijuana. And as you are just part of the collective, it follows that, for all practical purposes, you yourself decided for yourself that smoking marijuana should be illegal. And now we find that you opted to inhale the weed on your own land anyway. Well, the State comes after you. It was not that you were minding your own business, and then the government started the violence on you. No. It was you who has inflamed this contract breach, breaking your contract with the collective. And as you are part of the collective, you even broke your own promise to yourself to follow all the laws. Therefore, when the government manhandles you, it is not some majority of individuals imposing their will upon some recalcitrant individual. It is better than that — you are with the collective, and therefore the punishment inflicted upon you is actually your very own personal will being visited upon you.
Former President Barack Obama and U.S. Sen. Alexandria Ocasio-Cortez have invoked such a collectivist version of the Rousseauian Social Contract. They did so to rationalize their intrusions about what individuals can do with their own private possessions.
Obama explained how he would set straight the right-wingers who cry, “I need a gun to protect myself from the government.” As this is a democracy, Obama continued, it is myopic for you to distinguish yourself from the government, as if you and the government that imprisons you are separate entities. Remember, he said, “the government is us. These officials are elected by you. . . . I am elected by you. . . . It’s a government of and by and for the people” (emphases Obama’s). Therefore, when Obama placed restrictions on your guns, it was not Obama overpowering you. No, it was your own will being done upon you.
Likewise, Sen. Ocasio-Cortez tells you, “[...I]n a democracy, the government is us. ...the government is The Public, and The Public decides what is good for itself” (emphasis hers).
She was speaking about business regulations and new taxes. Yet that logic is equally applicable to the scenario where the majority votes to maintain criminal penalties for smoking marijuana in private on your own land. The government that comes after you for smoking marijuana . . . is us. In effect, that very same government . . . is you. The government coming after you in this instance is only The Public — which is you — deciding what is good for itself.
President Obama and Sen. Ocasio-Cortez are far from alone in invoking “democracy” and social collectivism in this Rousseauian Social Contract argument. At the newspaper TheMiami Herald, regular columnist Leonard Pitts, Jr., waves off people who “wax eloquent about what great things the free market and the free American could do if government would just get off their backs.” He asserts that governmental penalties on you is your own will visited upon you. “Government is the imperfect embodiment of our common will.” Observe that the “common will” that Pitts mentions is what English translations of Rousseau phrase as the “general will.”
And the filmmaker Michael Moore agrees. The TV reporter John Stossel once pointed out to him that the government ultimately enforces its statutes at gunpoint. To that, Michael Moore retorted, “No, it doesn’t, actually.” The reason why the U.S. government cannot impose its will on you is that the government is us. And that means the government is you. As Moore phrases it, “The government is of, by, and for the people. The people elect the government, and the people determine whether or not they’ll allow the government” to do anything that it does, punitive or otherwise.
There are many flaws in the these Rousseauain Social Contract arguments. I exposed the fallacy of the broader Rousseauian/Hobbesian argument in the essay “Bound to the Social Contract Under Duress.”
Then we come to the assertion that having a voting “democracy” justifies every statute, as all the voting citizens are a collective, which means the government punishing you is just your own will being enacted upon you. That argument came from even more convoluted rationalizing. I explain its wrongness in the essay “Exposing the Fallacy of the Presumptive Collective.” Importantly, that essay explains how we know it is that decisions are made by individuals, not collectives, and of how unanimity consists not of a collective but is an instance of individuals, each choosing privately, to come together to act in concert.
Here, in the blog post you now read, I want to expose the wrongness of the collectivist presumption of Obama and AOC in a manner far simpler than I did in my other essay. It is that AOC does not even apply her own Social Contract argument consistently. And this is for a very good reason.
Throwing Rousseau’s Social Contract, “Democracy,” and Collective Consent Back at Alexandria Ocasio-Cortez
There are many state governments in the USA controlled by the Religious Right. And, to the extent that they engage in forms of suppression of voters from particular demographics, these states are not as democratic as they should be. But, for the most part, these states are still overall democratic in AOC’s understanding of the term. It is not as though the voting districts of New York, which AOC represents, are substantially better. And in the states controlled by the Religious Right, state governments have democratically ratified and enforced statues that initiate the use of force upon private individuals. That is is the case with abortion bans. It is also the case of threatening punishment upon parents for the alleged misdeed of allowing their transgender children to obtain the gender-affirming care that they need.
And Sen. Ocasio-Cortez correctly objects to these statutes as violations of rights, as of initiations of force on peaceful people. When the U.S. Supreme Court’s majority enabled state governments to outlaw abortion, Sen. Ocasio-Cortez hollered, “People will die because of this decision.”
She also correctly said that for Texas governor Greg Abbott to punish parents for letting their kids have gender-affirming care is an attempt to “control people who are not cisgender men.” She concluded that anti-LGBGTQIA2S+ measures, such as by Gov. Abbott, are “hurting people across the country.”
I agree with all of her assessments there. But the problem is that these measures are the result of democracy. It is illiberal democracy, yes, but still democracy in terms of voting majorities enacting what they claim to be the common will. This is the result of the same process of voting by what AOC calls “The Public” — the democratic process that Sen. Ocasio-Cortez invokes as morally unassailable when it enacts the sorts of impositions that she wants.
U.S. Supreme Court justices are not elected directly by the majority of registered voters. However, they come to power as a result of the representative democracy that AOC has upheld. Potential justices are nominated by a chief executive who was elected democratically. And these candidates are approved for the Supreme Court by those of whom the general voters had elected democratically to represent them in Congress.
Thus, the very Rousseauian rationalizations employed by AOC and Obama can be thrown back at them.
AOC complains about these individual rights being violated. But if any Texans voice the same objections as AOC, Gov. Greg Abbott can repeat Obama’s own words for these Texans. Any Texan who does not like the actions of Abbott and other anti-queer officials can be reminded: “the government is us. These officials are elected by you. . . . I am elected by you. . . . It’s a government of and by and for the people” (emphases originally Obama’s). Ergo, Gov. Abbott can retort that these measures against queer people are just the will of the collective general public . . . which means it is even the will of the queer people themselves.
And then there are AOC’s own words: “[...I]n a democracy, the government is us. ...the government is The Public, and The Public decides what is good for itself” (emphasis originally hers). In this case, Religious-Right voters can tell AOC that the state-level abortion bans and the hostility toward queer people is just The Public deciding what is good for itself.
Take, for instance, the horrifying results of the 2024 presidential election. Donald Trump was undemocratic in denying the results of the 2020 election and sending a mob to instigate a coup. But in 2024, it was indeed a democratic majority that put Trump back into the White House. He got the popularity vote this time. And he won in each battleground state.
Conclusion
Of course, I do not condone abortion bans, these state actions against transgender people, or the 2024 reelection of Donald Trump.
The point here is that if there was any merit to the Rousseauian rationalizations of AOC, President Obama, Michael Moore, and Leonard Pitts, then their argument would have to apply consistently. Yet AOC talks as if the rationalization does not apply when state governments use the democratic process to undertake these actions that she correctly identifies as wrongful. And although AOC will not phrase it this way, these actions are wrong because they are indeed instances of voting democratic majorities imposing their will on individuals.
No, AOC, even in democracies it is the case that, to the degree that democratic voting is prioritized above the laissez-faire liberal principles of the Night Watchman State, the majority can and will oppress the minority. No, AOC, no majority vote over legislation on economic actions is The Public deciding what is good for itself. That is because there is no Public beyond the individuals that comprise it. The individuals of The Public frequently disagree with one another over what is the best sort of lifestyle. Therefore it is best that insofar as these people disagree on something so important, they be able to leave one another be. That means the State does not intervene. Merely as a form of dispute resolution, some democratic votes may properly be used in determining which willing candidates shall enter public office. But democratic votes are never ethical justification in having the power of the State overrule what people do peaceably in their own personal lives with their own wealth.
Let us, then, reexamine the addition of invocations of “democracy” and collective consent to Rousseau’s Social Contract argument. It starts by acknowledging that you may say that you were minding your own business until the voting majority imposed its own will upon you. And the voting majority’s will is enforced at gunpoint. But when collective consent is invoked in the Social Contract argument, it blurs the distinction between you and the voting majority. It says the voting majority is not divided from nonvoters or the voting minority. Nay, it continues, there is but one unit — the collective — and therefore the legislative or judicial outcome is what “The Public decides...is good for itself.”
That argument is really just a pretentious way of saying that might makes right. More specifically, the message is that the might of the majority makes right, as its greater number overpowers the minority. And, to cover up that this is about some individuals overpowering others, the majority and minority are nebulized together. The outcome is said, by Alexandria Ocasio-Cortez, to be what “The Public...decides its good for itself.” AOC has lost all moral authority, then, when she protests in horror about how voting majorities in other U.S. states perform actions that both she and I abhor. If the democratic majority is merely what the “Public...decides its good for itself,” then the 2024 election in favor of the illiberal Trumpian agenda was also what the Public decided was “good for itself.”
The individual deserves freedom. Therefore, it is true that no individual should be ruled over by a mob that tries to override the voters and install Donald Trump in a coup as dictator. And it is also true that it is your sacred right, as an individual, to go about your personal and economic affairs peaceably — not to be put to a vote by any public.
On Monday, July 29, 2024, I added the point about calling the Rousseauian argument the Social Contract Song-and-Dance. On Tuesday, November 12, 2024, I added the point about the 2024 U.S. presidential election. On Wednesday, November 13, 2024, I added the point about liberal democracy and the USA having been founded more as a democratic liberality.
“I am not what happened to me, I am what I choose to become.”
That is an excellent and wise quotation. It is a perfect affirmation of the presence of free will.
All too often in our culture we hear the phrase “Nature versus Nurture.” The insinuation is that your personal identity, as an adult, is the result of you being passive in being shaped by forces external to your conscious decision-making. As the phrase goes, what molded you into you was either inborn biological mechanisms beyond your control (“nature”), or conditioning from circumstances impinging upon you (“nurture”). Those factors do have some influence. But as the quotation reminds us, the biggest factor in making you the person you are as an adult is the one that goes unmentioned and unacknowledged. That factor is the series of choices you made on your own, proactively. (It is no accident that “Nature versus Nurture” was coined by Sir Francis Galton, the founder and namer of eugenics. He favored Nature over Nurture, and ignored free will completely.)
And all over the World Wide Web and in memes in Google Images, and even throughout works you can find in Google Books, that quotation is misattributed to Carl Jung.
Betty DeShong Meador, “Uncursing the Dark: Restoring the Lost Feminine,” Quadrant: Journal of the C. G. Jung Foundation for Analytic Psychology vol. 22 (no. 1, 1989): 27–39.
This was in a journal published by the C. G. Jung Foundation. That is how the quotation ended up being ascribed inaccurately to the man himself.
As I write this, I must say that this psychoanalyst and therapist, Betty DeShong Meador, died relatively recently. She was born in 1931 and died on February 20, 2023. I wish that it could have been within her lifetime that this quotation was sourced properly to her.
It seems that a mystery that nagged at me since childhood might be solved. Many collectors of Godzilla toys are familiar with the Hong Kong company Imperial. It made the Godzilla action figure with the red lips. The action figure has a strange silver blotch on its chest because the people at Imperial copied that feature from the Godzilla action figure that Bandai made in Japan years earlier. Imperial also made King Kong.
Pertinent here is that Imperial made a googly-eyed Tyrannosaurus with unique features: it has thin-but-wide plates going down its chest. It has osteoderms (little spikes) running down its back similar to a crocodile’s. And it is yellow. It was made in 1985. While many toy collectors know of this toy, they seem not to know that this toy’s design features — the chest plates and dorsal spikes — are based on another toy company’s design.
I learned of this because of my cousin. Years ago, he gave me many toys of Godzilla and Ultraman monsters made by Bullmark, not Bandai. Likewise, he gave me some thick paperback books, full of thick pages, profiling Ultraman. He gave me yet another book from the same publishing house that was about dinosaurs. And the book heavily featured a sculpture that closely resembled the 1985 Imperial toy, with the dorsal spikes and chest plates. But this sculpture had much more realistic eyes and was overall fancier. It also was not yellow. This book was published in 1981. I cannot read the kanji, and neither could my cousin. I always wondered if this sculpture was some model kit released in Japan in 1981 or earlier.
It seems I now have some answers. As you can see above, I took photos of the pages of the Japanese book. I then ran a Google image search. It appears that the sculpture was photographed by Top Trumps in 1979 for its card game called Prehistoric Monsters. And the sculpture has an earlier appearance still. It is in the 1977 book Purnell’s Book of Dinosaurs and Prehistoric Mammals. This is profiled on the blog Love in the Time of Chasmosaurus. One of the commenters says, “Since these models were featured in the London museum, I theorize that they were sculpted by a British paleontologist named Arthur Hayward — he had sculpted dinos for Ray Harryhausen [for One Million Years B.C. starring Raquel Welch].”
Important design features of Imperial’s Godzilla toy were copied from Bandai’s. Likewise, it seems Imperial copied the design of its 1985 Tyrannosaurus from a sculpture that Arthur Hayward made at least as early as 1977.
The Honolulu Star-Advertiser Published My Letter to the Editor
Stuart K. Hayashi
Back in the year 2006, Pablo Wegesend, Reid Ginoza, and I issued a warning to HawaiÊ»i in the letters-to-the-editor sections of the Honolulu Star-Bulletin and Honolulu Advertiser, before the latter newspaper purchased the former. The warning had to do with the construction of the government-controlled rail system being shoved down everyone’s throat. We warned of the threat of eminent domain being exercised to seize private land for the rail system. My focus was on the chances of citizens being expropriated of their private residences.
For the most part, we find that our warning has come true. The one difference here is that it is not a private residence being taken but instead the site of the Takaras’ family business, Service Printers Hawaii. The specific agency confiscating the land is the one directly in charge of the rail system, HART (the Honolulu Authority on Rapid Transportation). The Friday, November 17, 2023, Honolulu Star-Advertiserran this news as its front-page story. It prompted me to write yet another letter to the editor, which was published on Tuesday, November 21, 2023.
The official Twitter account of the Honolulu Star-Advertiser even sent out a tweet quoting from my letter and linking to the Web version of it.
OPINION: "(HART) invoked eminent domain to dispossess the Takara family of land on which their family business has stood for 59 years. ... That downplays the real issue: freedom and consent versus coercion." ⤵️ https://t.co/okRconMw9a
In the letter, two words I regret are “59 years.” The business was started in 1964 but, upon rereading the Friday article, Mr. Takara said the business was a tenant of the land for “43 years.” Instead of “for 59 years,” I should have said “for decades.”
The Newest Letter
This is what I had sent to the paper:
November 17’s front-page story, “HART Board Approves,” shows HART has no heart.
HART invokes eminent domain to dispossess the Takaras of land on which their family business has stood for 59 years. Rationalizations for eminent domain always mention payment to the victims. That downplays the real issue: freedom and consent versus coercion. Eminent domain is ultimately backed by armed force. Enforcing it in L.A. in 1959 had armed officers literally drag a widow, Aurora Arechiga, from her home.
People assume cities need eminent domain. In January I e-mailed development officials of Carson City, Nevada, about this. They informed me that although the city can enact it, at the time they knew of no instance of Carson City actually exercising eminent domain in its history.
During these holidays, ponder whether slogans about “the greater good” are justification enough, and if passively condoning eminent domain’s brutality is what we truly want.
The Honolulu Authority for Rapid Transportation (HART) invoked eminent domain to dispossess the Takara family of land on which their family business has stood for 59 years. Rationalizations for eminent domain always mention payment to the victims. That downplays the real issue: freedom and consent versus coercion. Eminent domain is ultimately backed by armed force. Enforcing it in Los Angeles in 1959 had armed officers literally drag a widow, Aurora Arechiga, from her home.
People assume cities need eminent domain. In January, I emailed development officials of Carson City, Nev., about this. They informed me that although the city can enact it, at the time they knew of no instance of Carson City actually exercising eminent domain in its history.
During these holidays, ponder whether slogans about “the greater good” are justification enough, and if passively condoning eminent domain’s brutality is what we truly want.
Stuart K. Hayashi Mililani
With sixteen reader comments underneath the online version, this letter of mine was the second-most-commented-upon letter to the editor of the day. First-place was the one about the Second Amendment, at thirty Web comments.
The next day, the Star-Advertiser published yet another letter denouncing HART’s callous violation of the Takaras’ rights. This one came from Charlene Aoki.
The Letter From 2006 Below is my letter of warning back in 2006. There are two different versions of it.
Pablo Wegesend raised an important concern in his Jan. 28 letter to the editor, but we have yet to see anyone address it.
Wegesend said, “With all the talk about light rail, there is one question that needs to be answered: Who’s going to be forced out of the way to make room for light rail infrastructure?”
Good point. What assurance do we have that the City [and] County of Honolulu won’t exercise eminent domain after selecting a route for the fixed-rail system? I find the very idea that the city might have to resort to condemning people’s houses far more unsettling than any increase in the general excise tax.
We shouldn’t rest easy until the City [and] County publicly promises us, in this newspaper’s op-ed pages for everyone to read, that it won’t forcibly confiscate anyone’s private land when the time comes to construct the rail.
Eminent Domain Don’t Seize People’s Homes for Transit
What assurance do we have that the City [and] County of Honolulu won’t exercise eminent domain after selecting a route for the fixed-rail system? I find the very idea that the city may have to resort to condemning people’s houses over this far more unsettling than any increase in the general excise tax.
We shouldn’t rest easy until the city publicly promises us, in this newspaper’s op-ed pages for everyone to read, that it won’t forcibly confiscate anyone’s private land when the time comes to construct the rail.
If this project requires the seizure of people’s homes, then perhaps it wasn’t such a terrific idea after all.
Stuart K. Hayashi Mililani
As a follow-up to my own, Reid Ginoza had his own March 17, 2006, letter to the editor published over here.
Yes, in 2006, I said, “We shouldn’t rest easy until the City [and] County publicly promises us, in this newspaper’s op-ed pages for everyone to read, that it won’t forcibly confiscate anyone’s private land when the time comes to construct the rail.”
We know what has happened since then. With the rail project, the city government is on the very unscrupulous path of which we had warned. It should reverse course before it hurts innocent people even more than it already has.
It seems that perpetually-online people, especially those who upload onto YouTube and TikTok, are finally beginning to understand the importance of intellectual property rights and of how they benefit the little guy. That is a tremendous sea change — very far off from where perpetually-online people were a decade or two before.
1999 was the year of the war over Napster. Napster made its owner and one of its early executives, respectively, into a multimillionaire and billionaire. But Napster successfully convinced the public that it was the underdog. Users who downloaded music without compensating the musicians rationalized to themselves that they were scrappy rebels sticking it to the record companies and only the greediest of the bands, such as Metallica.
Then came the YouTube era. One of its earliest celebrities was Doug Walker, better known as the Nostalgia Critic. YouTube Corporate was still getting accustomed from 2006 to 2008 to learning how to stop users from violating the intellectual property rights of companies like Disney and Viacom. For that reason, YouTube Corporate often acted with too heavy a hand in taking down contents that could potentially cause problems.
That led to YouTube Corporate removing the five-second clips of major motion pictures that Mr. Walker had uploaded. Even as YouTube Corporate learned not to be so heavy-handed anymore, Walker never forgot and never forgave. For that reason, he took great interest in 2010 when Congress introduced a bill known as the Stop Online Piracy Act — SOPA. The bill was very far from perfect. But, as Chris Ruen notes in his book Free Loading, it would not have allowed for the governmental actions that its detractors would go on to accuse it of trying to implement.
Sadly, Jimmy Wales — cofounder of Wikipedia — wound sow much misunderstanding by stating publicly and inaccurately that the bill’s passage would make it easy for any vexatious corporation to invoke SOPA to shut down his website. Doug Walker, still smarting from the takedowns of his videos from years earlier, and not being someone with a sophisticated understanding of public policy, immediately bought into all of the scare stories. He used his YouTube channel and official website — Channel Awesome —to campaign against SOPA. He took the talking points from Jimmy Wales’s movement and amplified them.
Probably much more than Mr. Wales, Doug Walker did a lot to influence the opinions of YouTube’s vloggers. And from much of this, they drew the wrong lessons not merely about a specific bill like SOPA, but about intellectual property rights more broadly. To a large extent, they fostered the impression that copyrights exist mostly so that big corporations like Disney and Viacom can bully little guys like Doug Walker.
They also liked to cite the incident between video-game streamer “PewDiePie” and online model “Alinity.” PewDiePie uploaded a video showing clips of her so that he could disparage her and other online models as “THOTs.” Alinity saw this and, on one of her own streams, said this made her want to “copy-strike” the man in retaliation. He had, after all, used her intellectual property without her permission. The majority opinion of the users of YouTube was staunchly on the side of PewDiePie. His fans greatly outnumbered hers. They felt aggrieved not merely by Alinity, but that there existed a type of law that could be invoked against their favorite celebrity. Hence, this dispute was repeatedly brought up in insinuations that copyright enforcement is only a method of retribution against one’s critics.
All of this was very convenient for libertarians as, from the 1970s onward, the party line has been to denigrate the need for intellectual property rights. The Mises Institute and Liberty International (formerly the International Society for Individual Liberty) take the hardline route — they demand the abolition of all patents and copyrights. (They conveniently seldom mention trademarks, and they seem not to know about a type of intellectual property right that farmers have for new sexually-bred crops — planet variety protections.)
Other libertarian think tanks, though, take a more discreet approach. They do not say outright that they want a ban of IPRs. They do, however, wait for high-profile court cases where a precedent may be set, such as with the lawsuits over Napster. And, any time there is a chance that the high-profile issue may result in a weakening in the ability to enforce intellectual property rights, these libertarians will produce op-eds and other essays where they write glowingly of such a weakening.
Fortunately, after the Napster wars and Doug Walker’s campaigns, it seems that uploaders on YouTube and TikTok are finally learning the truth. This is due to a phenomenon that these uploaders call “content theft.”
An important aspect of intellectual property rights is the Fair Use doctrine. It allows one copyright holder to take small parts of another copyright holder’s material in order to comment on it. It is the reason why I can quote other authors and explain the areas where I agree or disagree with them. In this commentary, I am taking a snippet of material that is already copyrighted, but doing so in a context removed from the one in which the material first appeared. Hence, my conservatively-limited reproductions of some copyrighted material is “transformative” of that material. When it comes to online videos, Video-Maker 2 may reproduce a small portion of a video from Video-Maker 1 in order to provide the context in which Video-Maker 2 comments on the work of Video-Maker 1.
Over the past three years, some YouTube uploaders have gained large audiences through abusing and stretching the criteria of “fair use” beyond what it was intended for. They have done so by using sections of other person’s videos that are increasingly large, proportion-wise.
The YouTube uploader SSSniperWolf does “reaction” videos where she watches other people’s TikTok videos, sometimes in their entirety without even showing the TikTok username of the person whose clip she is using. The “commentary” consists of nothing more than her reading the caption out loud and orating for the audience everything that happens onscreen. This has contributed to her gaining over 34 million subscribers on YouTube.
On Twitch, Hasan Piker (nephew to The Young Turks founder Cenk Uygar) and “xQC” will run someone else’s video in its entirety on their own stream as they themselves get up and leave the room. This is routinely done without the permission of the video’s actual owner. All the revenue for this goes to SSSniperWolf, xQc, and Hasan — not the persons whose videos they are using. These practices have played a part in making SSSniperWolf and xQc into multimillionaires. It has also done much to enrich Hasan Piker even further, though he was already born into a multimillionaire family. Someone else who had already been rich and who is now doing this, is the former recording artist Jason Derulo, who had a role in the motion picture adaptation of Cats.
The power imbalance in this situation has greatly undermined the Doug Walker-era myth that online copyright protection is just about rich people trampling on poorer people. It is SSSniperWolf, xQc, and Hasan Piker who have the money and power, and who have been violating the intellectual property rights of people who do not have the wealth, influence, or connections that they do.
The foil to content theft is Jack Douglass. He has been on YouTube from its beginning with his channel “JacksFilms.” Much to his credit, he has created a video to articulate how damaging SSSniperWolf’s practices are to the actual creators of the TikTok videos she uses.
Weeks later, Jack did a follow-up video to elucidate on how the situation with SSSniperWolf was even worse than he realized. There have been occasions where, completely unauthorized, SSSniperWolf has used someone’s TikTok video in its entirety and did not bother saying anything about it. There is not even a pretense of “transformative commentary.” As Jack says, “That’s not ‘fair use’; it’s just ‘use.’ ”
And the best news is that Jack’s efforts have not been in vain. Despite having much fewer subscribers and much less clout, an increasing number of people who have had their videos stolen by SSSniperWolf have been successful in invoking their copyrights. By making their copyright claims to YouTube Corporate, they have been able to pressure SSSniperWolf into removing a growing number of TikTok videos that her YouTube channel has appropriated. This is the first video that Jack has made about the recent string of victories.
As I type this out, here is Jack’s most recent summary of the situation. He ends on a hopeful note by talking about how small copyright-holders are showing that they have indeed been able to defend their work from SSSniperWolf.
I, too, am hopeful. We are coming to see the extinguishment of the narrative that copyrights are all about big media conglomerates slapping around little guys like Nostalgia Critic. Increasingly, small content-creators, who otherwise might have been taken in by Nostalgia Critic’s narrative, are waking up to the reality of the situation. They are seeing how intellectual property rights protect little guys like themselves.
