Trump’s Facebook Ban Likely To Be Overturned By Oversight Board

Facebook’s New Board Has Incentives to Bring Back Donald Trump

The panel is structured in ways that help the former president’s chances of regaining his posting privileges.

Sometime in the coming weeks, Facebook Inc.’s new Oversight Board will announce whether Donald Trump will be allowed to post again on Facebook and Instagram. Based on its recent rulings in other cases, the board seems poised to end Facebook’s suspension of Trump, which began in the aftermath of the Jan. 6 Capitol riot.

Trump’s return to social media would bolster his attempt to remain the dominant figure in the Republican Party. More broadly, it could reshape the way political speech is governed for Facebook’s 2.8 billion users, making it more difficult for the company to remove harmful content and bad actors. A pro-Trump decision could also influence other platforms, including Twitter, which permanently banned the former president after the ransacking of the Capitol, and YouTube, which said on March 4 that it would end its suspension of Trump when the risk of political violence recedes.

Facebook Inc. had ample reason to separate Trump from his 35 million followers on its namesake website, plus 24 million on Instagram. Over a period of months, he used a range of social media platforms to undermine public confidence in the legitimacy of the 2020 election. Then, having drawn thousands of followers to Washington, D.C, in January for what he promised would be a “wild” protest, he directed the crowd to march on the Capitol, where Congress was formally counting electoral votes. Five people died in the ensuing attack, and 140 police officers were injured. Explaining its decision to suspend Trump indefinitely, Facebook said it sought to prevent the “use of our platform to incite violent insurrection against a democratically elected government.”

But then the company referred the Trump suspension to its Oversight Board, a quasi-judicial body that it set up last year to review content moderation decisions and issue rulings the company promises to follow. The board is made up of 20 globally diverse academics, lawyers, and civic leaders, as well as a former prime minister of Denmark and a Nobel Peace Prize laureate. While the board hasn’t been shy about second-guessing Facebook, overturning the company’s decisions in five out of the six cases decided so far, that top-line number can be misleading. The board has jurisdiction only over Facebook’s decisions to remove content, meaning it’s usually decided to restore it. At least for now, the board isn’t allowed to review instances where Facebook has allowed potentially harmful material—such as incitement, hate speech, or disinformation—to remain on its platform.

Some observers have argued that Facebook designed the Oversight Board as a “clever sham” that would allow it to keep controversial content on the platform. Such content drives user engagement, which, in turn, maximizes ad revenue. That seems overstated. The relatively tiny number of cases the board is likely to decide probably won’t have a meaningful effect on the overall supply of engagement bait. Moreover, while Facebook has vowed to obey board rulings in particular cases, the company is not obliged to apply the principles the board enunciates to millions of similar cases. Rather than a sham, the oversight body appears to reflect an impulse to outsource responsibility for content moderation—to have someone else make tough calls, at least in a handful of especially sensitive cases, like, say, the de-platforming of a former president.

Facebook management tends to outsource decisions about which posts stay up. The company sends the vast majority of its front-line human content moderation work to third-party vendors who employ relatively inexpensive local labour in places including the Philippines and India.

In an interview with Kate Klonick for a definitive New Yorker piece on the founding of the Oversight Board, Facebook Chief Executive Officer Mark Zuckerberg said the body wasn’t designed to deflect responsibility. “I’m not setting this up to take pressure off me or the company in the near term,” he said. “The reason that I’m doing this is that I think, over the long term, if we build up a structure that people can trust, then that can help create legitimacy and create real oversight.”

The analytical approach the Oversight Board has taken favors the restoration of Trump’s account. As a corporation, Facebook isn’t, strictly speaking, constrained by the First Amendment, which limits government restrictions on speech. But in some of its initial rulings, the board has skeptically scrutinized Facebook’s own “community standards,” stressing the ambiguity of the rules under which the company has removed content. It’s also tended to frame the factual context of the disputed posts in a narrow way, an approach that can minimize the potential harm the speech in question could cause. If carried over to the Trump decision, these inclinations would help him.

Consider a ruling that reversed Facebook’s removal of a 2020 post from Myanmar that included the assertion that “there is something wrong with Muslims psychologically.” Facebook took down the post under its policy against hate speech. The board acknowledged the severity of anti-Muslim animus in Myanmar but referred to this instance as a mere “expression of opinion,” which “did not advocate hatred or intentionally incite any form of imminent harm.” The board could have taken a broader view of the recent history of Myanmar. Doing so would have put more emphasis on the Myanmar military’s ethnic cleansing of Rohingya Muslims, an atrocity partly fueled by dehumanizing rhetoric spread on Facebook. The company’s belated vigilance about preventing further lethal abuse of its platform in Myanmar seems warranted.

In another case, the board overturned the removal of a post from France describing the malaria drug hydroxychloroquine as a “cure” for Covid-19, a widespread claim that has been refuted by scientific evidence. Facebook took action under its rule against misinformation that risks imminent physical harm. In light of the coronavirus pandemic, the company has vowed to remove claims of false cures and other medical misinformation. But the Oversight Board was dissatisfied with Facebook’s “inappropriately vague” guidelines, concluding: “A patchwork of policies found on different parts of Facebook’s website makes it difficult for users to understand what content is prohibited.” So the misleading post about a phoney cure was restored.

This brings us back to Trump. Describing his pending case on its website, the board narrows its focus to just two posts from Jan. 6. In the first, Trump appeared in a video while the rioters were still ransacking the Capitol. “We had an election that was stolen from us,” he told the insurrectionists. He said they should go home but added, “We love you. You’re very special.” In a later written message, posted while police were securing the Capitol, he said, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously ripped away from great patriots who have been badly & unfairly treated for so long.”

This framing of the case suggests the board may not consider adequately the broader context: the pattern of Trump’s Facebook and Twitter pronouncements, going back months, in which he tried to erode popular faith in voting and the peaceful transfer of power. Another possible signal that should give Trump some confidence is the board’s assertion in its case preview that Facebook wasn’t crystal clear about which of its rules he violated. In earlier decisions, the board pointed to this kind of fuzziness to justify reversals of company sanctions.

Removing a political leader from a widely used platform should be a punishment of last resort. It narrows the scope of political debate and may deny voters valuable election-related information. In close cases, Facebook should lean toward penalties like labelling content as misleading or limiting its distribution.

To Facebook, though, Trump wasn’t a close case. His social media communication, viewed in total, spread falsehoods about a “rigged” election and thereby created a real danger to our democracy. He praised and justified insurrectionists, even as they stalked congressional hallways, chanting that they wanted to hang Vice President Mike Pence. Facebook has no obligation to amplify speech that undermines democratic governance and incites violence. But the Oversight Board, as a result of its bureaucratic imperatives and analytical approach, might yet restore Trump’s Facebook and Instagram megaphones.

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