Transcript of the above video:

As the title of this video suggests, we are discussing Justice Clarence Thomas and discussion in a recent Supreme Court case that came before the Court where Justice Thomas actually - I am going to throw a link to a Forbes video here on YouTube as the reference point for this video - but in that, Justice Thomas asked: "What part of the 1st Amendment "protects" the right to censor?"

There is this case before the Court where they are making arguments under a provision called Section 230 wherein basically certain platforms on the internet are effectively free from Government oversight if you will because they are considered just a platform, they are not engaging in publication; they are not acting as a publisher in their own right, they are just sort of a platform on which other people talk and they are using this argument, I am not going to get it into the high weeds, but they are using this as a means and method of thereby then restricting speech in certain circumstances and saying that that is okay. Justice Thomas, it was interesting, I urge those who are watching this video to go check out that  video directly if you haven't actually watched that, before you even come back and watch the rest of what I am going to say here, which is Justice Thomas points out that he was there for the inception of the internet. In the ‘90s when the internet was coming to the forefront and the rules that first were created regarding publisher versus platform, it made a lot more sense. But what I thought was interesting was the Attorney who was being questioned by Justice Thomas, the Attorney bringing the case noted that they were not there at the beginning, at the inception of the internet. It's clear to me that the Attorney was younger by a substantial margin than Justice Thomas and therefore that Attorney couldn't really speak to what existed, the society that existed prior to or at the inception of the internet and that's the thrust of this video. It's not so much about the case itself, it is about what I call or what has been called by the Supreme Court, "Contemporary Community Standards". 

I discussed this a lot, I used to be an adjunct Professor at Bangkok University where I would do Mass Media Law classes and one of the things I liked to talk about with the classes was, there is a fundamental misconception in the lay community about law, that law is sort of like a fixed thing and it isn't. For somebody who studies the law and understands it, this can be a very scary concept because it isn't. What I mean to say is in Obscenity Law there were prongs to deciding if content was considered obscene and therefore could be restricted in terms of distribution, in terms of free expression basically. And there are a number of different aspects to deciding whether something is obscene which by the way, mere offensiveness is not obscenity. A lot of people really misunderstand this in the modern era. I constantly see things about "this is offensive", "you are offending". You are not protected from offense in the American legal tradition regarding Free Speech, you are not. That's not the end of the analysis, that's the beginning of it. If something is offensive, okay that's where we start the analysis of whether or not it can be restricted. Obscenity in a substantive sense, as far as the subject matter of content, obscenity is the threshold one has to pass in order for it to be considered legally justified to restrict such speech and as I have discussed and I am not going to go into too much detail, but as I talked about when I used to lecture on this, again you can't just say "oh something's offensive" and then restrict it. No, you have got to pass a very high bar of what is offensive to the point of obscene. For example, you can't just openly show pornography in public areas. You can't take like a movie projector and just up against a building in a public area, public square, start broadcasting pornography. That's obscene; children don't need to see that; community at large who doesn't want to see that, should not be subjected to that material just because you want to do it. Your right to free speech ends with their right to not have to view obscene material in the public square, and I can get on board with that. 

The point I am trying to make is one of the prongs of the test for obscenity is this notion of "Contemporary Community Standards". And again there are two parts to that: one is contemporary, and one is community. And when you get into for example, they've cited that look different places for example different states, have different ideas as to what is obscene. So the state of Nevada for example might have a different notion of obscenity on their streets than the state of Kansas might have, so that's a community where you can sort of delineate these ideas based on geographic area. Meanwhile there is the notion of contemporary; there's a timing element to this notion of obscenity and thereby the ability to censor. And this exchange that occurs in that video and again I urge those watching this video, go check that out, it's really interesting, the fact that Justice Thomas and the Attorney have a differing perspective on thresholds or on the evolution of the internet just generally, where the younger person thinks it is okay to restrict speech under certain circumstances because they essentially were born after the internet had already existed, it had already come in to being and is part of our daily lives whereas it appears to me that Justice Thomas having existed before the internet came into being, is aware of a more for lack of a better term, traditional concept and what I would actually go even further and say which is real reality, real reality. He's more in tune with reality I would argue because he existed before we were all brought into for lack of a better term, this matrix we now call the internet. And he kind of rather bluntly points out that you are using all this sort of legal reasoning to get us basically to a place where you are saying the 1st Amendment allows for censorship. Well where is the plain language that ever said that?  And yet again I think Justice Thomas has per usual cuts through a major Gordian Knot and just says in very sort of for lack of a better term, blunt terms, "what are you talking about here", is kind of the message I got from that. 

But the thing that I thought was worth noting and the reason for making this video is the fact that clearly, the Contemporary Standard for Justice Thomas is different from this Attorney and it seems to me that it's primarily because of their difference in age, and again these differences are things that we should take note of because they can have a tremendous bearing on the future evolution of legal theory.