Supreme Court rejects industry challenge of 2015 net neutrality rules | Hacker News Reader

Supreme Court rejects industry challenge of 2015 net neutrality rules

arstechnica.com

94 pointsmagoghm101 comments

More details here: https://arstechnica.com/tech-policy/2018/11/supreme-court-wo...

I'd like to point out that this is may only be temporary victory. Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms.

> Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms.

Even assuming Roberts and Kavanaugh would actually side with the telecoms in substance, the Justices that wanted to take the case did not side with the telecoms or even want to give them a hearing, they said they would have accepted the petition only as a vehicle to direct that the decision be vacated as having been rendered moot; the telecoms want a ruling that under the FCCs statutory authority, it can't order net neutrality. There were zero votes to even give that position a hearing.

The USTA (the telecoms) position was that the lower decision should be vacated as moot: Thomas, Alito, and Gorsuch were indeed siding with the telecoms by being in favor of granting cert and vacating the circuit court decision.

The (now-surviving) decision upholding the previous FCC order is an inconvenience for the telecoms as it's more or less a roadmap for reintroducing the FCC's previous rules under a Commission with a different makeup. Of course the ideal for them would be to have the case flatly overturned, that was obviously not in the cards once the FCC reversed itself. Vacating the decision would be the next best option (and, to be fair, one that's perfectly defensible as a proper course of action for the Court to take).

It was also the new position of the FCC itself, for fairly clear reasons. So it's an interesting case where both parties, by the time of the actual decision, agreed on what they wanted the Court to do (and didn't get it).

From the USTA's latest filing:

> The petitions for a writ of certiorari should be granted, the decision below vacated, and the case remanded for the court of appeals to dismiss the petitions for review as moot.

Thanks, we've updated the link from https://www.theregister.co.uk/2018/11/05/supreme_court_neutr....

Any word on why those judges recused themselves?

From what I've seen:

Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case.

Roberts has major holdings in Time Warner Cable, now merged with AT&T. AT&T was part of the case, so there's a conflict of interest there.

> Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case.

This is an interesting reason to recuse. You're supposed to recuse in cases where you cannot be impartial (or, similarly, where you cannot appear to be impartial, regardless of your inner thoughts).

Recusing because the defendant is your brother makes sense. But Kavanaugh was presumably offering a standard, "impartial" judicial opinion when he dissented on the lower court. It's definitely true that he's likely to come into the case at the Supreme Court level with a preformed opinion of the merits. Superficially, that's an obvious reason to recuse. But why? That preformed opinion was, by hypothesis, formed by considering the merits of the case as an impartial judge, which is the only thing he's supposed to do when hearing it in the Supreme Court too.

Because of https://www.law.cornell.edu/uscode/text/28/47

It makes sense. When you appeal you want a different person's opinion, not the same person's multiple times.

It makes less sense on closer examination than it does at first glance. I want a different person's opinion when I lose in court, regardless of whether I do appeal or whether I can appeal. But wanting it doesn't mean there's a reason I should get it. I can appeal to a higher court because the higher court has authority over the lower one; the basis for an appeal is that the lower court made a mistake, not that I personally feel that I'd be better off with a judgment going the other direction.

Courts make mistakes (in the appealer's view) because people misinterpret evidence/the law. If you get the same people in a higher court the same mistakes will happen again.

But mistakes in the appealer's view don't matter. You win an appeal if the lower court made a mistake in the view of the higher court.

The article mentions why.

It is quite narrow and temporary. We are still at risk of the Republican Judiciary deciding that the FCC declining to regulate ISPs on the basis that they don't have the authority means the ISPs are immune to all state laws regulating them.

By "all state laws", do you mean "all federal laws"? AFAIK, the FCC is a federal institution and has never upheld state laws. And, AFAIK, several states have re-introduced versions of net neutrality in various ways, specifically to route around the issues of the FCC abandoning any form of enforcement on such rules.

The FCC is trying to preempt state laws to prevent that from happening.

The FCC is attempting to prevent the state laws from going into place.

Sounds a lot like they're kicking the can to avoid impact to the midterm elections. Kavanaugh for sure is in hiding lest he inflame the Dems even more.

They'll put NN on the operating table / torture room in Dec or Jan at the latest.

Sorry if OT, but I'm kinda surprised Kavanaugh is already doing SC things; I thought there was some delay after swearing in or that the SC schedule was limited to fixed times of year.

The schedule of cases is indeed limited to a portion of the year, and he missed the first few days of the session, but once he was sworn in, he was a justice. There's no waiting period.

In the strangest of ways, I hope that ISPs do get the ability to "exercise editorial control" - because I think that will be the proverbial straw that breaks the camels back (i.e., sparks the kind of innovation needed to break the ISP monopoly).

> i.e., sparks the kind of innovation needed to break the ISP monopoly

How so? Internet is infrastructure, LTE is infrastructure (from the same ISPs) - mesh networks don't scale due to inefficient wifi and too little spectrum. You can't break physics.

The innovation you have is paying for a VPN and pay up for your non-ISP-netflix traffic.

What do you think would be possible? If it's over the air it will be regulated and licenced (i.e. non public spectrum) and if it's not over the air you have huge costs nobody is willing to pay to build a network (even Google ditched Fiber due to costs?)

They wouldn't be using the term innovation if the solution was obvious... Within the options you laid out, perhaps advances in mesh networking working in combination with licensing non-public spectrum would cut it. Certainly Amazon, Google, Facebook and Apple have the resources to make something else work if the current ISP's get massively out of line.

They’ll do what we’ve seen companies do time and time again, use their deep pockets to position themselves to take best advantage.

Many websites are encrypted already. What sort of interference did you have in mind?

Maybe interference would accelerate that trend a bit, but it doesn't seem to require all that much innovation?

Does it matter that the content is encrypted?

Surely the main issue in a non-neutral world is the throttling of traffic from specific sources based on commercial priorities. The sources can be identified by IP regardless of whether the content is encrypted.

Okay, they could still throttle. I was thinking of other things like ad injection, DNS redirection, and so on.

People here have been worried about providers like GoDaddy when this excerpt arguably has the potential to be much worse; “Kavanaugh dissented from the ruling upholding net neutrality rules in 2017, arguing that the rules violate the First Amendment rights of Internet service providers by preventing them from "exercising editorial control" over Internet content.“

I might not _like_ this result, but I do understand why Net Neutrality can be regulated or deregulated. Even if the Supreme Court took the case, I'm more curious on what the industry would even defend net neutrality _by_.

I mean: Drugs, Birth Control, Healthcare... all able to be regulated. I'm not sure how they would argue against Internet regulation.

I think the big difference between the other three is that the Internet and telecommunications in general (even phone and text) are first and foremost, primary means of speech. That is protected by the first amendment.

You could make the argument the government cannot regulate it at all (at least to limit it).

Changing gears slightly, what would you like regulated about the Internet?

My understanding is the issue at hand is whether the government can block ISPs from metering and throttling different kinds of traffic differently.

Net neutrality = yes, legislators can say all ISPs must be neutral to traffic content

Non-neutrality = no, legislators may not regulate the way ISPs differentiate traffic because traffic differentiation is speech

What's with the "Beer enthusiast" comment?

During the confirmation hearings Kavanaugh repeatedly explained his high-school (and presumably college) activities by defensively and repeatedly emphasizing that "I like beer".

Regardless of any good/bad quality of it, he was clearly defensive and memorable, and many memes were born. I'd suspect that ~arstechnica~ [Edit: Guardian, link was changed since I first read it] is showing how "hip" and "with it" they are by bonding with their audience on this point - so far as I know, some of those both those for and against Kavanaugh's confirmation made fun of that exchange, so while I'd not be surprised to find an anti-kavanaugh tilt in the author, I suspect the inclusion was for less political and more marketing reasons.

The term "beer enthusiast" was actually used in the Guardian article that was originally submitted--it appears nowhere in the Ars Technical article.

A real doozy of an excerpt from the article:

> Kavanaugh dissented from the ruling upholding net neutrality rules in 2017, arguing that the rules violate the First Amendment rights of Internet service providers by preventing them from "exercising editorial control" over Internet content.

Jesus fucking christ.

Please don't post unsubstantive comments here, especially not ranty ones, regardless of how much you disagree with some quote from an article. It leads to markedly lower-quality, flamier discussion.

Agreed. Although I suspect that if I had posted the quote with the comment <<"Interesting.">> beneath it and nothing else, nobody would have complained despite it being no more substantive.

Sorry to hijack but if you're curious about the specifics of this amazing argument, I wrote a long article about it a little bit ago:

https://techcrunch.com/2018/07/11/supreme-court-nominee-bret...

The actual dissent[1] seems fairly reasonable at first glance. It's based on two objections:

* "First, Congress did not clearly authorize the FCC to issue the net neutrality rule."

* "Under the Supreme Court's landmark decisions in [cites 2 precedents], the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market."

It really disturbs me how few people bother to look -- even a cursory glance -- before developing a profanity-laden opinion on the subject.

[1] https://scholar.google.com/scholar_case?case=608357842885836...

Your expansion on Kavanaugh's argument does not seem to deepen it, but rather reword it.

Indeed, there are times where I feel a profanity-laden opinion is justified without reading too far. If I were to say homosexuality should be punishable by prison time, I would expect a profanity laden response without much depth. Some things are just outrageous, and outrage is a sensible response.

I did not reword his arguments. Those are his words, see the opinion and search for them.

The majority opinion thoroughly rebuts the arguments in the dissent. Have you read it as well? It's a good read if you've become interested in the subject.

Official link (PDF) for those who don't like Google: https://www.cadc.uscourts.gov/internet/opinions.nsf/06F8BFD0...

GP might or might not, but that isn't relevant - presumably everyone on HN could already mount a decent argument in favour of net neutrality, even without reading the opinion of legal experts.

Law is a highly technical field that is full of detail, nuance and far-reaching consequences. There is a good reason why legal opinions are usually long written documents - the issues are complex. Anyone who selects one sentence as a soundbite and holds it up as the thing itself is (in an inconsequential way) undermining the integrity of the legal system. Judges write opinions that are about the length they need to be to express their reasoning. To criticise the opinion, it is necessary to have separate evidence of the result of the ruling or to have read the opinion. Quoting one sentence of the opinion from an article is not sufficient.

I'm not defending the original comment, I'm just replying to the one I'm replying to. Whether or not that commenter has read both the dissent and the majority opinion is 100% relevant to their comment.

If they exercise editorial control, why aren't they legally liable for the content they serve us?

Because that's a cliche that, despite its tiresome repetition here and in other tech forum, hasn't been true for 22 years, and only ever was the law of the land for a bit more than a year (1995, until the passage of the Communcations Decency Act in 1996)

Specifically, US Code § 230(c)(2) ("Protection for private blocking and screening of offensive material") provides:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (https://www.law.cornell.edu/uscode/text/47/230)

> If they exercise editorial control, why aren't they legally liable for the content they serve us?

Well, it's online, user-submitted content, so CDA 230 would seem to apply, whose whole point is to allow editorial control without liability.

As I understand it, that is not the "whole point" of cda 230. CDA 230 gives providers immunity from being treated as publisher when they host user submitted content, and as such doesn't apply when the provider embraces the role of publisher by editorializing content. Perhaps I misunderstand cda 230.

I think you do misunderstand, though in a way which is common when people forget (or never knew) the context in which it was adopted. Prior to CDA 230 (and still, in other media not subject to the CDA 230 safe harbor) exercising editorial control was what differentiates between a distributor who has notice-based liability for various unlawful content (meaning, roughly, they are responsible if they know about it and do nothing), and a publisher who has strict liability (and is therefore liable even if they don't know about it.)

In the debate leading to the adoption of CDA 230 the fact that this situation discouraged hosts from making best-effort attempts to eliminate unwelcome, including unlawful, content for fear of triggering strict liability was raised, and the desire to enable this kind of best-effort elimination of “objectionable and inappropriate” content is an explicitly-stated policy goal in Section 230(b).

Th actual safe harbor provision, Sec 230(c) is titled Protection for “Good Samaritan” blocking and screening of offensive material.

The idea that it isn't to enable to the host to affirmatively take action to prevent relaying content that might be offensive is...not well supported.

Out of curiosity, if the pipes were open to multiple ISPs instead of the limitations that exist now, would you still disagree with ISPs being allowed to be non-neutral? I often wonder what the net neutrality discussion would look like in an environment with many providers and easy ISP choice/creation.

Splitting up the "wire service" from the "Internet service" would be another way of dealing with the issue. Regulate the wires (making it so any ISP could start up and use the wires). Then the market could differentiate on things like net-neutrality - _as long as_ there continued to be competition.

We have that situation in New Zealand. AFAIK all ISPs are neutral. It would seem like a competitive disadvantage to be otherwise in a market full of neutral ISPs.

Adding a separate ISP on top of effectively a net neutral ISP creates very different incentives. IMO, in such a case you really have net neutrality by default as the wire providers would not block or prioritize content.

The pseudo ISP's might prioritize traffic, but would be facing very different economic incentives.

I appreciate the quote but I don’t appreciate your comment. It seems to serve no purpose but to be inflammatory. To signal to “your people” that you’re with them, and signal to everyone else that you think they’re an idiot. I have half a mind to flag it.

I like neutral ISPs, but I think Kavanaugh is probably correct, from a strictly constitutional sense ISPs should have a right to modify traffic in any way they like.

If you disagree, at least give me a hint as to your thinking.

There's a very long history of industries considered so vital to other kinds of commerce that they can be classified as "common carriers" that are not allowed to discriminate against what things to transport.

These are known as common carriers. Here's a short list:

Every domestic passenger airline Every domestic freight carrying airline Busses Ferries Cabs Lyft Uber FedEx UPS USPS Passenger Railroads Freight Rail Service Many oil pipelines Even roller coasters Landlines Mobile phone service

Applying Title II of the Communications Act to broadband service, which applies common carrier obligations and privileges (e.g. you can't get sued for what you carry) isn't a violation of Verizon's free speech rights and ruling so isn't conservative at all.

Yea. I may not like the idea of it but from a strictly constitutional view it seems correct. ISP's are private entities after all. We already have major social media platforms, hosting providers, domain registrars, payment processors, credit card companies, even DDoS protection companies all "exercising editorial control" of content, so why not ISP's?

The argument of "ISP's choice is very limited in many areas, so it's different" seems rather weak to me. You can just use a cell carrier, or satellite, or even dial-up. If that sounds like "you can just start your own social media platform, your own website, your own payment processor, your own registrar, or just be accessible through an IP address, or tor etc." it should. All those options suck. Yet the people who are most militant about Net Neutrality are usually totally okay with every other private entity doing whatever they want (as long as it ends up aligning with their ideology).

I'm not here to suggest any solution to all this, just to say I don't think there's anything untoward about a judge ruling in line with the first amendment of the Constitution. Ideally this whole mess will lead us towards more competition and decentralization on the Internet, but given the way it has developed in the past 20 years, I'm not very hopeful.

>so why not ISP's?

Because it has to effing stop somewhere, that's why.

Sorry, but saying that giving government-granted telco monopolies[1] a right to censor content is "in line with the first amendment" is the most bizzarre thing I've seen today.

[1]Neither spectrum nor the right to lay down cables are a free market.

I think the hangup there is that in many cities there exists a government-sanctioned monopoly in internet access, in many areas the public actually funded the infrastructure, or in other areas collusion exists to limit customer freedom to choose a provider. Monopoly of access and absolute control over the network should be inversely proportional.

The same argument could be made, and often is, that a few private social media companies, hosting services, domain registrars, payment processors etc. hold similar monopoly status, for different reasons.

And it's no more easy to start any of those on your own than it is to start your own ISP. Sure the barrier to entry to make your own website at some random domain is pretty low, but that's more akin to setting up a wireless router to provide internet to your roommates and calling it an ISP than it is to making something with any sort of significant penetration, load handling capability, and financial sustainability.

"private social media companies, hosting services, domain registrars, payment processors" - interesting how all of those on your list require me to use an ISP first. in my town there is literally one ISP option. I have used several different providers for every service you listed. there is a big difference between a near/effective monopoly and literally one option or no service at all.

Copy pasting from another of my replies in this thread:

E.g., your ISP is likely not the only option, just the only decent one.

"Just use" the exact same company for a dial up option. "Just use" a cellular provider that does not actually provide a data signal (dropped calls and constantly resending texts is my reality not tethering my computer for fast data). I guess technically I have the "option" to use overpriced satellite service that has a latency that makes RDP to my data center 80 miles away unusable (geo stationary orbit altitude is a bitch). I actually appreciate that I even have 5Mbit DSL but don't tell me I have a weak argument about ISP choice - there is but one choice - even if I grant you a satellite option I have literally two or three choices total. To re-address my original points, I first have to use an ISP to access any of the dozens, hundreds, thousands of other digital services that have been brought up. I'm not sure how you are so dismissive of this fact that alone places this service in a category unto itself. Once I have an internet pipe, I can freely use the 0.1% market share or the 99% market share social media/hosting/search engine/registrar/etc company with literally no friction and based on my whim on that day. And the next day I can cancel and choose another option. And a year later I can choose the 5% share up and coming option and so on. Explain to me how this is so similar to my ISP "choice"? I can also literally start my own social media platform, hosting company, or registrar tomorrow. However, even if I were independently wealthy and purchased spools upon spools of fiber/coax cable that totaled thousands of linear miles, I could NOT just start digging and running it where I chose and become an ISP option for my neighbors. Again, explain to me how ISPs are just exactly like all of these other examples you brought up?

That's a pretty dishonest comparison to a massive percentage of the country that literally has no ISP choice; I can name several viable products for each of the industries you mentioned off the top of my head.

Frankly, you're basically right. I am signalling to people who believe in a free internet that I'm with them. Simultaneously, I'm signaling my belief that you'd have to be an idiot to believe that the censoring of our speech by ISPs is equivalent to them expressing their own speech. Got me red-handed.

Thank you for your comment - It proves my long-held theory that HN comments don't get flagged for breaking TOS, they get flagged by people who -

1. Have the power to flag (which everyone on HN doesn't equally have)

2. Disagree with the opinion expressed in a comment.

The flagging and banning system on HN needs revisiting. HN has become an echo chamber of opinions deemed kosher by those with flagging/moderation privileges.

At the very least, when flagging, HN should ask what TOS clause was violated.

By 'TOS' I guess you mean the guidelines, and the comment in question fairly obviously violates half a dozen of them.

I'll agree the first paragraph seems to. The rest are fine. I suspect even without the 1st it still would have gotten downvoted.

I was referring to "Jesus fucking christ", not sure what you're talking about.

The comment above the one you replied to, which is what I assumed we were talking about. Could be wrong. Not sure how "Jesus fucking christ" really violates any rules much less several. I know HN isn't supposed to be reddit, but I think that outlawing common expletives is a pretty low bar. He wasn't insulting anyone in-particular.

I'm not Christian, but I grew up in The Bible Belt. I tend to swear a lot. My adult sons joke that I use the F word like others use very. So I'm certainly no prude.

The expression in question is offensive to sincere Christians not for the cussing per se, but for taking the lord's name in vain. It's a big form of disrespect of their religious beliefs. You could think of it as verbally pissing on their icons.

Out of respect for others, I try to keep my internet comments pg-13-ish and edit out the worst of the swearing if I'm writing while tired or distracted and my bad habits are showing more than usual. Yet I am generally disinclined to use expressions like Jesus Fucking Christ because I'm aware of how very, very offensive it is to sincere Christians. (I'm not saying I never do it. But I don't think I do it on HN, which is a shared public space. It doesn't sit well with me.)

We don't use, for example, "the N word." People can get fired over such racial slurs. I don't see any reason why we should casually dismiss the idea of basic respect for a major religion and its tenets.

Is there any real reason why the exclamation needs to target the Christian religion in order to adequately express exasperation?

It’s insulting.

Whatever favors the sponsors of their political ideals.

HN comments are looking more and more like Reddit comments every day. Is your only statement in a response "Jesus fucking Christ"? Great insight...

1.) Perhaps consider that the comments on /r/The_Donald, /r/catsstandingup, and /r/personalfinance differ strongly. The idea that all of Reddit's users and all the content on all its different subreddits are generically self-similar is a pretty foolish notion. You may as well say "HN comments are looking more and more like internet comments every day" and it would mean just as much. Your comment only serves to illustrate which parts of Reddit or the internet you personally frequent.

2.) Yes, in response to current US politics, I have little to say beyond expressions of utter disgust and contempt. There is nothing I can do to change the Supreme Court situation. I have no deep commentary or rebuttal to make to Kavanough's opinions, because I think most readers here can already see what I see: that his argument is straight out of a dystopian horror story. They don't need my added pontification to make that clear.

3.) Not every comment needs to be a thoughtful essay. People frequently want to just express an opinion or emotion without wanting to dive into a conversation. Do you harp on people every time they snicker or sigh, saying is that all you have to contribute? I imagine people must be reluctant to make a sound around you.

I wish there had been less focus on the alleged sexual assault and more focus on the fact that Kavanaugh doesn't understand the constitution (or just ignores it) and supported the Bush administration in defending torture.

Keep in mind statements like this are very double edged. Hosting providers are already denying the ability for people to even host platforms. Platforms are de-platforming people (and not all of them are hate groups. Just check out Carey Wedler's ban from Twitter). It's not a huge stretch to then say, ISPs should be allowed to regulate what content flows through their servers.

I can't seem to find it, but isn't there another case coming up to the Supreme Court soon over just this issue? You can't deny service to someone due to their race. I really feel like we're getting to the point where that really needs to apply to speech.

There was significant criticism of him professionally before the multiple allegations of rape were made.

It didn't matter.

Then the multiple allegations of rape were made.

And it still didn't matter.

So let's not kid ourselves that there was ever any chance of stopping his confirmation.

He's the political version of a made man.

Allegations shouldn't ruin peoples careers. A conviction should be the bare minimum and even then depending on the crime.

Even a criminal charge would have helped such an argument but even that wasn't the case here. If it wasn't for the politics of the situation I highly doubt so many people would be against such basic human right as due process.

It wouldn't have ruined his career, it just would've said "maybe we shouldn't give him a promotion to a lifelong job until we thoroughly investigate whether or not he's a rapist".

That's might sound like persuasive way to phrase it but it doesn't represent the reality of the situation fairly or provide adequate context.

Most importantly being a Supreme Court justice doesn't protect you from going to jail or from law enforcement from investigating your past behaviour... justices can be impeached.

On the inverse of your position we also shouldn't prevent the promotion of people to important roles (this goes well beyond SC justices), having followed every legal rule correctly up to that point, merely because of a last minute allegation. Let alone an allegation that wasn't even brought directly to the attention of law enforcement requesting investigation first but rather to a political opponent of the judge in question.

Even if the accusers sound persuasive it sets a very dangerous precedent that would make it easy to game the system and prevent any quality promotions merely based on unfounded allegations. This would almost certainly be open to abuse and hurt ALL political parties during future nominations, for any role, for decades to come.

Absent at a very minimum a law enforcement decision to bring charges, the hearings should continue and the matters should be investigated afterwards should they warrant it.

Which would inevitably lead to a continuous stream of unprovable, yet also undisapprovable, allegations against every subsequent candidate. We saw the beginnings of that in the clearly fabricated follow up accusations.

"Then the multiple allegations of rape were made. And it still didn't matter."

Do you think allegations should matter to the confirmation process?

If the allegations are substantiated well-enough, the DA of Maryland could still charge him, right?

The confirmation process does not seem like the right venue to seek justice for a crime like that.

Becoming a supreme court justice is one the highest privileges the US can bestow on any one citizen. There are (legal) limits to the factors that may or may not be considered in the Senate's deliberations. It's a fallacy to believe that the presumption of innocence, a principle of criminal law applies. This is rather easy to see, just by looking at history, and vast amount of facts that have been cited in votes against nominees, only a tiny fraction of which were ever the subject of a criminal trial.

It's also intuitively obvious by considering the often-cited reasoning the the presumption of innocence:

It is better that ten guilty persons escape than that one innocent suffer.

Because this doesn't hold for supreme court justices, where I think most would agree it's better for ten excellent judges to be passed over in lieu of the second-best alternative, than to have one criminal decide what's law and what isn't.

I'd argue that the standatd of proof required for "man should go to prison" should be higher than then for "man shouldn't be trusted with one of the most powerful judicial positions in the country"...

What should be the standard for the latter?

It doesn't require a standard of proof in the way that people don't work with a standard-of-proof 3-pronged test-of-likability for their spouses.

Among the myriad reasons: the nature of the crime matters. If they got caught with a bit too much LSD in 1975 it doesn't matter even if proven & admitted and convicted. If, however, there's just a whiff of corruption then that's Game Over, next please.

Hell, if they were arrested in bar fight just last year and spend a week in jail, that might even be a plus: first hand experience of the criminal justice system from "deep inside" could at least excuse a singular transgression (perhaps depending on what side of emacs-vs-vim they so drastically defended in that bar).

So it's more of a calculation, as in

    probability X recency X seriousness X relevancy for job 
    +/- all other factors.

...rather than any single standard of proof. And that's fine. That's how it has always been, and how it was originally envisioned.

> multiple allegations

Some of them have turned out to be lies:

https://www.seattletimes.com/nation-world/nation-politics/go...

> I wish there had been less focus on the alleged sexual assault and more focus on the fact that Kavanaugh doesn't understand the constitution (or just ignores it) and supported the Bush administration in defending torture.

Since the sexual asssault allegations came at the tail of the process, had there been attention to the other things (EDIT: or the serial misrepresentation in regard to his role in the Bush Administration detainee policy, which ought to be disqualifying for the federal bench whether or not his actual role was problematic), the sexual assault issue may never have arisen.

> I wish there had been less focus on the alleged sexual assault

I thought there should have been more focus on his partisanship and lying. I believe the allegations, but they are just that, allegations. I rewatched Gorsuch's hearings, and you can really tell who belongs in the supreme court and who doesn't. Too bad over 90% of the votes were predetermined based on the candidates original political party, not their merit.

Which one of his decisions on the DC Circuit do you think shows he doesn't understand the Constitution?

> and more focus on the fact that Kavanaugh doesn't understand the constitution

no now according to constitution you don't understand constitution!

you know like, after they interpreted the constitution as giving them the sole power to interpret the constitution. or however that worked out.

your language reflects how little you care about due process. It is your way, or else everybody else is a villain.

Are you also opposed to Google and Facebook exercising editorial control of content as a First Amendment right? If not, why should some natural monopolies (e.g. search engines or social networks) get this privilege while others (e.g. ISPs) do not?

At the end of the day neither Google nor Facebook are monopolies, you can opt to search via DuckDuckgo, and many have opted to leave Facebook. Many people have no such choice with their wired ISP. It's either the ISP or nothing for internet access. Network effect "monopoly" is nothing like physical monopoly.

I mean, there's a pretty big difference between not being able to access high speed internet except through something that's subject to financial or other sorts of manipulation, and not being able to post whatever you want on facebook or use google or whatever. Facebook isn't really something I need, plus I can use any number of alternative search engines and email providers.

I can't just ignore the two or so providers of internet in my area and switch to dial up or whatever because I pretty much need high speed dependable internet for work. I think that's a pretty big difference there.

You depend on a company for a product/service that they provide. Therefore, you can dictate the terms of how they provide it?

For a utility like water or gas for which there is only a monopoly company providing it then yes, there are basic standards set by law because society recognizes the economic inefficiency of putting in duplicative physical infrastructure into that last-mile of linkage, as well as the economic difficulty of maintaining non-extractive prices without fundamental competition.

But the internet is not a utility...

What makea you say that? I consider the internet a utility. I'm pretty sure the governments of many countries (including the UK where I live) do too.

Perhaps it would be useful to differentiate between the internet as a whole, and a last-mile service getting you access to the point where there is a fan-out of many different access options. As a whole, major parts of the internet do not have "utility" constraints, while wired end-point service certainly seems to have significant similarities in my mind.

The Supreme Court is good at avoiding theoretical cases. Basically, the original net neutrality regulations were already rescinded by the Trump administration. Because of this, the Supreme Court has no reason to intervene as it is a moot point.

That's actually not at all what happened here. The Supreme Court decided not to hear challenges to the FCC policies under the Obama administration. In other words, Trump and Pai did not get their way this time.

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