Pluralistic: By all means, tread on those people (26 Aug 2025)


Today's links


The Gadsen 'DONT TREAD ON ME' flag; the text has been replaced with 'THERE MUST BE IN-GROUPS WHOM THE LAW PROTECTS BUT DOES NOT BIND ALONGSIDE OUT-GROUPS WHOM THE LAW BINDS BUT DOES NOT PROTECT.'

By all means, tread on those people (permalink)

Just as Martin Niemöller's "First They Came" has become our framework for understanding the rise of fascism in Nazi Germany, so, too is Wilhoit's Law the best way to understand America's decline into fascism:

https://en.wikipedia.org/wiki/First_They_Came

In case you're not familiar with Frank Wilhoit's amazing law, here it is:

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

https://crookedtimber.org/2018/03/21/liberals-against-progressives/#comment-729288

The thing that makes Wilhoit's Law so apt to this moment – and to our understanding of the recent history that produced this moment – is how it connects the petty with the terrifying, the trivial with the radical, the micro with the macro. It's a way to join the dots between fascists' business dealings, their interpersonal relationships, and their political views. It describes a continuum that ranges from minor commercial grifts to martial law, and shows how tolerance for the former creates the conditions for the latter.

The gross ways in which Wilhoit's Law applies are easy to understand. The dollar value of corporate wage-theft far outstrips the total dollars lost to all other forms of property crime, and yet there is virtually no enforcement against bosses who steal their workers' paychecks, while petty property crimes can result in long prison sentences (depending on your skin color and/or bank balance):

https://www.opportunityinstitute.org/blog/post/organized-retail-theft-wage-theft/

Elon Musk values "free speech" and insists on his right to brand innocent people as "pedos," but he also wants the courts to destroy organizations that publish their opinions about his shitty business practices:

https://www.mediamatters.org/elon-musk

Fascists turn crybaby when they're imprisoned for attempting a murderous coup, but buy merch celebrating the construction of domestic concentration camps where people are locked up without trial:

https://officialalligatoralcatraz.com/shop

That stuff is all easy to see, but I want to draw a line between these gross violations of Wilhoit's Law and pettier practices that have been creating the conditions for the present day Wilhoit Dystopia.

Take terms of service. The Federalist Society – whose law library could save a lot of space by throwing away all its books and replacing them with a framed copy of Wilhoit's Law – has long held that merely glancing at a web-page or traversing the doorway of a shop is all it takes for you to enter into a "contract" by which you surrender all of your rights. Every major corporation – and many smaller ones – now routinely seek to bind both workers and customers to garbage-novellas of onerous, unreadable legal conditions.

If we accept that this is how contracts work, then this should be perfectly valid, right?

By reading these words, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer. This indemnity will survive the termination of your relationship with your employer.

I mean, why not? What principle – other than "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect" – makes terms of service valid, and this invalid?

Then there's binding arbitration. Corporations routinely bind their workers and customers to terms that force them to surrender their right to sue, no matter how badly they are injured through malice or gross negligence. This practice used to be illegal, until Antonin Scalia opened the hellmouth and unleashed binding arbitration on the world:

https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1443&&context=blr

There's a pretty clever hack around binding arbitration: mass arbitration, whereby lots of wronged people coordinate to file claims, which can cost a dirty corporation more than a plain old class-action suit:

https://pluralistic.net/2021/06/02/arbitrary-arbitration/#petard

Of course, Wilhoit's Law provides corporations with a way around this: they can reserve the right not to arbitrate and to force you into a class action suit if that's advantageous to them:

https://pluralistic.net/2025/08/15/dogs-breakfast/#by-clicking-this-you-agree-on-behalf-of-your-employer-to-release-me-from-all-obligations-and-waivers-arising-from-any-and-all-NON-NEGOTIATED-agreements

Heads they win, tails you lose.

Or take the nature of property rights themselves. Conservatives say they revere property rights above all else, claiming that every other human right stems from the vigorous enforcement of property relations. What is private property? For that, we turn to the key grifter thinkfluencer Sir William Blackstone, and his 1768 "Commentaries on the Laws of England":

That sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

https://oll.libertyfund.org/pages/blackstone-on-property-1753

Corporations love the idea of their property rights, but they're not so keen on your property rights. Think of the practice of locking down digital devices – from phones to cars to tractors – so that they can't be repaired by third parties, use generic ink or parts, or load third-party apps except via an "app store":

https://memex.craphound.com/2012/01/10/lockdown-the-coming-war-on-general-purpose-computing/

A device you own, but can only use in ways that its manufacturer approves of, sure doesn't sound like "sole and despotic dominion" to me.

Some corporations (and their weird apologists) like to claim that, by buying their product, you've agreed not to use it except in ways that benefit their shareholders, even when that is to your own detriment:

https://pluralistic.net/2024/01/12/youre-holding-it-wrong/#if-dishwashers-were-iphones

Apple will say, "We've been selling iPhones for nearly 20 years now. It can't possibly come as a surprise to you that you're not allowed to install apps that we haven't approved. If that's important to you, you shouldn't have bought an iPhone."

But the obvious rejoinder to this is, "People have been given sole and despotic dominion over the things they purchased since time immemorial. If the thought of your customers using their property in ways that displease you causes you to become emotionally disregulated, perhaps you shouldn't have gotten into the manufacturing business."

But as indefensibly wilhoitian as Apple's behavior might be, Google has just achieved new depths of wilhoitian depravity, with a rule that says that starting soon, you will no longer be able to install apps of your choosing on your Android device unless Google first approves of them:

https://9to5google.com/2025/08/25/android-apps-developer-verification/

Like Apple, Google says that this is to prevent you from accidentally installing malicious software. Like Apple, Google does put a lot of effort into preventing its customers from being remotely attacked. And, like Apple, Google will not protect you from itself:

https://pluralistic.net/2023/02/05/battery-vampire/#drained

When it comes to vetoing your decisions about which programs your Android device can run, Google has an irreconcilable conflict of interest. Google, after all, is a thrice-convicted monopolist who have an interest in blocking you from installing programs that interfere with its profits, under the pretense of preventing you from coming to harm.

And – like Apple – Google has a track record of selling its users out to oppressive governments. Apple blocked all working privacy tools for its Chinese users at the behest of the Chinese government, while Google secretly planned to release a version of its search engine that would enforce Chinese censorship edicts and help the Chinese government spy on its people:

https://en.wikipedia.org/wiki/Dragonfly_(search_engine)

Google's CEO Sundar Pichai, personally gave one million dollars to Donald Trump for a seat on the dais at this year's inauguration (so did Apple CEO Tim Cook). Both men are in a position to help the self-described dictator make good on his promise to spy on and arrest Americans who disagree with his totalitarian edicts.

All of this makes Google's announcement extraordinarily reckless, but also very, very wilhoitian. After all, Google jealously guards its property rights from you, but insists that your property rights need to be subordinated to its corporate priorities: "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."

We can see this at work in the way that Google treats open source software and free software. Google's software is "open source" – for us. We have the right to look at the code and do free work for Google to identify and fix bugs in the code. But only Google gets a say in how that code is deployed on its cloud servers. They have software freedom, while we merely have software transparency:

https://pluralistic.net/2025/07/14/pole-star/#gnus-not-utilitarian

Big companies love to both assert their own property rights while denying you yours. Take the music industry: they are required to pay different royalties to musicians depending on whether they're "selling" music, or "licensing" music. Sales pay a fraction of the royalties of a licensing deal, so it's far better for musicians when their label licenses their music than when they sell it.

When you or I click the "buy" button in an online music store, we are confronted with a "licensing agreement," that limits what we may do with our digital purchase. Things that you get automatically when you buy music in physical form – on a CD, say – are withheld through these agreements. You can't re-sell your digital purchases as used goods. You can't give them away. You can't lend them out. You can't divide them up in a divorce. You can't leave them to your kids in your will. It's not a sale, so the file isn't your property.

But when the label accounts for that licensing deal to a musician, the transaction is booked as a sale, which entitles the creative worker to a fraction of the royalties that they'd get from a license. Somehow, digital media exists in quantum superposition: it is a licensing deal when we click the buy button, but it is a sale when it shows up on a royalty statement. It's Schroedinger's download:

https://pluralistic.net/2022/06/21/early-adopters/#heads-i-win

Now, a class action suit against Amazon over this very issue has been given leave to progress to trial:

https://www.hollywoodreporter.com/business/business-news/prime-video-lawsuit-movie-license-ownership-1236353127/

The plaintiffs insist that because Amazon showed them a button that said, "Buy this video" but then slapped it with licensing conditions that take away all kinds of rights (Amazon can even remotely delete your videos after you "buy" them) that they have been ripped off in a bait-and-switch.

Amazon's defense is amazing. They've done what any ill-prepared fifth grader would do when called on the carpet; they quoted Webster's:

Quoting Webster’s Dictionary, it said that the term means “rights to the use or services of payment” rather than perpetual ownership and that its disclosures properly warn people that they may lose access.

People are increasingly pissed off with this bullshit, whereby things that you "buy" are not yours, and your access to them can be terminated at any time. The Stop Killing Games campaign is pushing for the rights of gamers to own the games they buy forever, even if the company decides to shut down its servers:

https://www.stopkillinggames.com/

I've been pissed off about this bullshit since forever. It's one of the main reasons I convinced my publishers to let me sell my own ebooks and audiobooks, out of my own digital storefront. All of those books are sold, not licensed, and come without any terms or conditions:

https://craphound.com/shop/

The ability to change the terms after the sale is a major source of enshittification. I call it the "Darth Vader MBA," as in "I am altering the deal. Pray I do not alter it any further":

https://pluralistic.net/2023/10/26/hit-with-a-brick/#graceful-failure

Naturally the ebooks and audiobooks in the Kickstarter for pre-sales of my next book, Enshittification are also sold without any terms and conditions:

https://www.kickstarter.com/projects/doctorow/enshittification-the-drm-free-audiobook/

Look, I don't think that personal consumption choices can fix systemic problems. You're not going to fix enshittification – let alone tyranny – by shopping, even if you're very careful:

https://pluralistic.net/2025/07/31/unsatisfying-answers/#systemic-problems

But that doesn't mean that there isn't a connection between the unfair bullshit that monopolies cram down our throat and the rise of fascism. It's not just that the worst enshittifiers also the biggest Trump donors, it's that Wilhoit's Law powers enshittification.

Wiloitism is shot through the Maga movement. The Flu Klux Klan wants to ban you from wearing a mask for health reasons, but they will defend to the death the right of ICE brownshirts to run around in gaiters and Oakleys as they kidnap our neighbors off the streets.

Conservative bedwetters will donate six figures to a Givesendgo set up by some crybaby with a viral Rumble video about getting 86'ed from a restaurant for wearing a Maga hat, but they literally want to imprison trans people for wearing clothes that don't conform to their assigned-at-birth genders.

They'll piss and moan about being "canceled" because of hecklers at the speeches they give for the campus chapter of the Hitler Youth, but they experience life-threatening priapism when students who object to the Israeli genocide of Palestinians are expelled, arrested and deported.

Then there's their abortion policies, which hold that personhood begins at conception, but ends at birth, and can only be re-established by forming an LLC.

It's "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect" all the way down.

I'm not saying that bullshit terms of service, wage theft, binding arbitration gotchas, or victim complexes about your kids going no-contact because you won't shut the fuck up about "the illegals" at Thanksgiving are the same as the actual fascist dictatorship being born around us right now or the genocide taking place in Gaza.

But I am saying that they come from the same place. The ideology of "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect" underpins the whole ugly mess.

After we defeat these fucking fascists, after the next installment of the Nuremburg trials, after these eichmenn and eichwomenn get their turns in the dock, we're going to have to figure out how to keep them firmly stuck to the scrapheap of history.

For this, I propose a form of broken windows policing; zero-tolerance for any activity or conduct that implies that there are "in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect."

We should treat every attempt to pull any of these scams as an inch (or a yard, or a mile) down the road to fascist collapse.

We shouldn't suffer practitioners of this ideology to be in our company, to run our institutions, or to work alongside of us. We should recognize them for the monsters they are.

Hey look at this (permalink)


A shelf of leatherbound history books with a gilt-stamped series title, 'The World's Famous Events.'

Object permanence (permalink)

#20yrsago Oakland sheriffs detain people for carrying cameras https://thomashawk.com/2005/08/right-to-bear-cameras.html

#10yrsago New Zealand gov’t promises secret courts for accused terrorists https://www.nzherald.co.nz/nz/attorney-general-says-law-society-got-it-wrong-over-secret-courts/E5JHYBTMVSIBZ62UNGEWB4DPEA/?c_id=1&objectid=11503094

#10yrsago Platform Cooperativism: a worker-owned Uber for everything https://platformcoop.net/

#10yrsago GOP “kingmaker” proposes enslavement as an answer to undocumented migrants https://www.thedailybeast.com/iowa-gop-kingmaker-has-a-slavery-proposal-for-immigration/

#10yrsago Six years after unprovoked beating, Denver cop finally fired https://kdvr.com/news/video-evidence-determined-fate-of-denver-officer-in-excessive-force-dispute-fired-after-6-years/

#10yrsago Samsung fridges can leak your Gmail logins https://web.archive.org/web/20150825014450/https://www.pentestpartners.com/blog/hacking-defcon-23s-iot-village-samsung-fridge/

#10yrsago German student ditches apartment, buys an unlimited train pass https://www.washingtonpost.com/news/worldviews/wp/2015/08/22/how-one-german-millennial-chose-to-live-on-trains-rather-than-pay-rent/

#10yrsago Ashley Madison’s founding CTO claimed he hacked competing dating site https://www.wired.com/2015/08/ashley-madison-leak-reveals-ex-cto-hacked-competing-site/

#5yrsago Telepresence Nazi-punching https://pluralistic.net/2020/08/25/anxietypunk/#smartibots

#5yrsago Ballistic Kiss https://pluralistic.net/2020/08/25/anxietypunk/#bk

Upcoming appearances (permalink)

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A screenshot of me at my desk, doing a livecast.

Recent appearances (permalink)


A grid of my books with Will Stahle covers..

Latest books (permalink)


A cardboard book box with the Macmillan logo.

Upcoming books (permalink)

  • "Canny Valley": A limited edition collection of the collages I create for Pluralistic, self-published, September 2025

  • "Enshittification: Why Everything Suddenly Got Worse and What to Do About It," Farrar, Straus, Giroux, October 7 2025
    https://us.macmillan.com/books/9780374619329/enshittification/

  • "Unauthorized Bread": a middle-grades graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, 2026

  • "Enshittification, Why Everything Suddenly Got Worse and What to Do About It" (the graphic novel), Firstsecond, 2026

  • "The Memex Method," Farrar, Straus, Giroux, 2026

  • "The Reverse-Centaur's Guide to AI," a short book about being a better AI critic, Farrar, Straus and Giroux, 2026


Colophon (permalink)

Today's top sources:

Currently writing:

  • "The Reverse Centaur's Guide to AI," a short book for Farrar, Straus and Giroux about being an effective AI critic. (1019 words yesterday, 42282 words total).

  • A Little Brother short story about DIY insulin PLANNING

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