OPINION: This article contains commentary which reflects the author's opinion
The world’s preeminent social media site, Facebook, has made its decision on whether to allow Donald Trump back on its platform.
The answer came on Wednesday when the site’s Oversight Board ruled that Trump will stay banned from the platform.
“The Board has upheld Facebook’s decision on January 7 to suspend then-President Trump from Facebook and Instagram. Trump’s posts during the Capitol riot severely violated Facebook’s rules and encouraged and legitimized violence,” the board said in announcing its decision.
“The Board also found Facebook violated its own rules by imposing a suspension that was ‘indefinite.’ This penalty is not described in Facebook’s content policies. It has no clear criteria and gives Facebook total discretion on when to impose or lift it,” it said.
“Within 6 months of today, Facebook must review this matter and decide a new penalty that reflects its rules, the severity of the violation, and prospect of future harm. Facebook can either impose a time-limited suspension or account deletion,” the board said.
“Facebook cannot make up the rules as it goes, and anyone concerned about its power should be concerned about allowing this. Having clear rules that apply to all users and Facebook is essential for ensuring the company treats users fairly. This is what the Board stands for.
“We call on Facebook to ensure that if a head of state or high government official repeatedly posts messages that pose a risk of harm under international human rights norms, the company should either suspend the account for a set period or delete it.
“If Facebook opts for a suspension for a set period of time for influential users, the company should assess the risk of the user inciting significant harm before the suspension ends. If the risk remains, Facebook should impose another suspension<” it said.
“The ‘newsworthiness’ of a public figure’s remarks should never take priority over urgent action to prevent harm. Facebook must be far more transparent about how its newsworthiness policy works.
“Restrictions on speech are often imposed by powerful state actors against dissidents and political oppositions. Facebook must resist pressure from governments to silence political opposition, and stand up for free expression.
“Finally, we urged Facebook to conduct a review into its contribution to the narrative of electoral fraud and political tensions that led to the events of January 6. This should look at Facebook’s design and policy choices that may allow its platform to be abused,” it said.
The Board has upheld Facebook’s decision on January 7 to suspend then-President Trump from Facebook and Instagram. Trump’s posts during the Capitol riot severely violated Facebook’s rules and encouraged and legitimized violence. https://t.co/veRvWpeyCi
— Oversight Board (@OversightBoard) May 5, 2021
Access to Facebook is seen by many as crucial to Trump’s chances of victory if he decides to campaign for president in 2024.
Even before the Facebook decision came down there were those warning that the Facebook Oversight Board was a creation of Facebook and not a court, and that it, and the company, wielded too much power.
“The Facebook Oversight Board is not A Court. its a corporate advisory board, like academics paid by Exxon to make a few decisions. The problem with Facebook is its grotesque outsized power, and the business model. Tomorrow, don’t fall for the bait. Call to break it up,” Fordham Law professor Zephyr Teachout said.
“The bait: debate whether the decision of this corporate advisory committee is right or not. Category error,” she said.
“The correct question: why do we allow behavioral advertising business model for essential communications infrastructure? Why do we let Facebook monopolize social media?
“The correct response to WHATEVER FOB does is: Congress should pass new laws to limit big techs power and biz model,” she said.
And NBC News reporter Ben Collins had similar concerns.
“Before Facebook’s Oversight Board determines whether Donald Trump can post on its platform tomorrow at 9 a.m., I just want to remind everyone that their decision is not the law. Facebook asked people to do some content moderation, and those people said yes. That’s it,” Collins said.
“You can dress this up in whatever veneer of credibility you want, but the Facebook Oversight Board is a collection of people who got asked to make rules for one website and were paid for it. Their decisions have as much industry-wide impact and credibility as the public lends it,” he said.
“We can also debate the merits of who the people on Facebook’s Oversight Board are. The most prominent American disinformation researchers are not on it. Facebook disputes this, but it’s true. Even if they were, they’re not a court. They’re a private company’s paid-for panel,” he said.
You can dress this up in whatever veneer of credibility you want, but the Facebook Oversight Board is a collection of people who got asked to make rules for one website and were paid for it. Their decisions have as much industry-wide impact and credibility as the public lends it.
— Ben Collins (@oneunderscore__) May 4, 2021
During a March House Energy and Commerce Committee hearing, Facebook CEO Mark Zuckerberg said the Oversight Board will make the decision and he will support the ruling.
In response to a question posed by Rep. Billy Long of Missouri asking “If the oversight board decides that Facebook should have left President Trump’s account up, what will you do?”
Zuckerberg said: “Congressman, we will respect the decision of the oversight board, and if they tell us that former President Trump’s account should be reinstated, then we will honor that.”
— Free Speech America (@FreeSpeechAmer) March 25, 2021
The board is comprised of nineteen members who have been drawn from an array of international institutions which Facebook has assembled to provide what it refers to as a “global perspective” who are “committed to making principled, independent decisions that are binding on Facebook about important pieces of content” and the ruling on restoring Trump’s account will put their ability to make those decisions without any political bias to the test.
The second clue that things could go in Trump’s favor came from a Bloomberg report earlier this week.
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 or 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.