File photo of Facebook CEO Mark Zuckerberg. Photograph:( Reuters )
Wednesday's ruling throws the fate of the former president back to Mark Zuckerberg - exactly what he doesn't want
Facebook’s Oversight Board on Wednesday upheld the social network’s temporary suspension of Donald Trump but declined to decide when, or whether, that ban should be lifted. The decision dashed the former president’s hopes for a swift reinstatement by a body charged with reviewing the platform’s content moderation practices. But it also sent a message that the scope of the board’s power is limited and that the ultimate responsibility for these questions still lies with Mark Zuckerberg and company.
The London-based body of about 20 outside experts — former political leaders, human rights activists and journalists — called for the company to re-examine the penalty within six months and decide whether to reinstate him, impose a finite suspension or ban him for good. The board was also careful to note that Mr. Trump’s indefinite suspension has no basis in Facebook’s stated policies. “In applying a vague, standardless penalty and then referring this case to the board to resolve, Facebook seeks to avoid its responsibilities. The board declines Facebook’s request and insists that Facebook apply and justify a defined penalty.”
Assuming Facebook follows its ruling — as it pledged it would when it established the charter for the semi-independent board in 2019 — it’s a setback for Mr. Trump and his allies, who relied heavily on social media to rally support, raise money and spread their polarizing messages. It ensures that he will remain without one of the world’s loudest megaphones in his continuing campaign to undermine the relevance of American democracy by casting Joe Biden’s electoral victory as fraudulent.
It is also, in a sense, a setback for Facebook: Declining to permanently rule on Mr. Trump’s fate on the platform sends the ball back to Mr. Zuckerberg’s court. That’s exactly where he seemed not to want it.
As the decision ricochets across the political world, there will be ample debate as to whether the board made the right call. Upholding Mr. Trump’s suspension sets a precedent for applying the same rules to world leaders as Facebook does to ordinary users, at least in cases of imminent harm — or perhaps even tougher ones, as some communications scholars had suggested. Overturning it, even conditionally, would have militated for a hands-off approach to newsworthy political speech, which seemed to be Mr. Zuckerberg’s own inclination before the winds of power shifted.
While these arguments tend to break mostly along partisan lines, they sometimes come with awkward political role reversals on the deeper questions concerning corporate power over speech. For instance, after Facebook and Twitter banned Mr. Trump in January, some on the left framed the deplatforming as the inviolable prerogative of companies exercising their First Amendment rights, while Trump supporters argued that the companies had a public duty to let him speak. With Wednesday’s announcement, the right may turn with renewed vigor to government intervention.
Then there are the debates about the board’s legitimacy and what legitimacy it confers on Facebook. Does its qualified rebuke of Facebook’s indefinite suspension, which it called “arbitrary,” prove the board’s independence? Or does its refusal to decide Mr. Trump’s future on the platform reinforce its limitations?
What each of these scenarios leaves out, and the entire project of the Oversight Board obscures, is that the problems with Mr. Trump’s presence on Facebook — the lies, the propaganda, the incitements — are not just Trump problems. They’re Facebook problems (and to be fair, Twitter problems).
Manipulation, misinformation, fear and loathing are endemic to today’s social media platforms, whose engagement-driven algorithms are built to spread whatever messages tap into users’ viscera and provoke a quick “like” or an angry comment. Yet the platforms have delegated much of the work of moderating this content to overwhelmed contractors and fallible artificial intelligence software. The tide of hogwash and bile may recede when a super-spewer such as Mr. Trump is deplatformed. But the dynamics that enabled him endure.
It is those underlying dynamics, and not solely Mr. Trump’s right to use the platform, that any truly independent oversight of Facebook would address. Last month, the U.S. Senate began deliberating over how social media algorithms and design choices mold political discourse. While its hearing was inconclusive at best, it at least served notice that they’re a topic of potential regulatory interest.
Facebook endowed the Oversight Board with a measure of autonomy. It funded the board with an irrevocable trust, promised operational independence and pledged to treat its content decisions (though not its policy recommendations) as binding. Yet it did not empower the board to watch over its products or systems — only its rules and how it applies them.
That’s why some communication scholars have dismissed the board as a red herring, substituting a simulacrum of due process in certain high-profile cases for substantive reform. While the term “oversight board” suggests accountability for the institution it oversees, this board’s function is essentially the opposite: to shift accountability for Facebook’s decisions away from the company itself. The board’s power to adjudicate individual content decisions may be real, but it’s a power that Mr. Zuckerberg never wanted in the first place.
That’s not to say it’s a total sham. Wednesday’s decision aside, putting weighty decisions about online speech in the hands of an accomplished group of outsiders would seem more likely to lead to thoughtful and consistent rulings than leaving them to Facebook’s employees and executives. Both today and in previous decisions, the board has revealed itself to be nothing if not thorough, carefully documenting its rationale and the implications of its decisions for similar cases. But its impotence in holding Facebook to account, more than the ruling on Mr. Trump’s suspension, is what makes Wednesday’s announcement unsatisfying.
Among the many public comments that poured in when the board announced it would take the case, a submission from the Knight First Amendment Institute at Columbia University best articulated the crux of the matter. Warning that the board’s decision on Mr. Trump would serve as a “fig leaf” for Facebook’s own failures, the institute’s scholars implored the company to delay issuing a ruling until Facebook commissioned an independent study into its own role in the events leading up to the insurrection at the Capitol on Jan. 6.
There had been at least a sliver of hope that the board might take such a stand. One of its members, Alan Rusbridger, a British journalist, had called publicly in March for the board to examine Facebook’s algorithms, though he acknowledged it might not do so right away. “We’re already a bit frustrated by just saying ‘take it down’ or ‘leave it up,’” Mr. Rusbridger said, according to The Guardian.
Evelyn Douek, a lecturer at Harvard Law School who has chronicled the board’s evolution, told me she’s seen evidence in its early decisions that “the board is chafing against the very limited remit that Facebook has given it so far.” She would like it to go farther in pushing for transparency. For instance, she said, it could call on Facebook to reveal the Trump ban’s impact on an internal metric that it calls “violence and incitement trends.”
The board did take a small step in that direction on Wednesday. Among its policy recommendations, it called for Facebook to undertake a “comprehensive review of its potential contribution to the narrative of electoral fraud and the exacerbated tensions that culminated in the violence in the United States on January 6.” This review, the board said, “should be an open reflection on the design and policy choices that Facebook has made that may allow its platform to be abused.”
But the board’s policy recommendations, unlike its ruling on the case itself, are nonbinding. And by suggesting that Facebook conduct the review itself, it overlooked the company’s long history of generously grading its own homework.
What Facebook needs to solve its Trump problem is not a binding decision from an appeals court but aggressive investigation into how it shapes the flow of political information. That must include insight into both the workings of its algorithms and moderation processes. It may be just one company, but its unilateral power over the public square became untenable long ago. The long-term solution must involve either stronger checks on its power or reducing its scale.
Perhaps the board will eventually channel its frustration into more substantive action, using the leverage it enjoys as a highly public emblem of Facebook’s bid to self-regulate. But on Wednesday, with the world watching, it opted to accept its limitations rather than challenge them. And that says more about its relevance at this moment than anything in the 12,000-word decision it issued.