Case No. 2021 -001 – FB – FBR. Facebook Oversight Board, May 5, 2021.
Facebook is an online social media platform that welcomes all except those determined to have acted badly according to its internal standards, which are described generally in its Terms of Service, with which users promise compliance. For the errant poster, Facebook may administer rebukes, suspend or terminate service, as well as removing content it deems unsuitable.
Facebook thus administers and enforces rules of its own making by its own employees. In light of persistent concerns about this insularity, Facebook founder Mark Zuckerberg created a board of review, funded by Facebook but administered independently.
This week the Facebook Oversight Board issued an opinion unsigned by its constellation of prominent international figures that concluded that Facebook did not err in removing statements of then-President Donald J. Trump at the time of and concerning violence that erupted on January 6, 2021 in the nation’s Capitol following a rally of Trump supporters.
While correct in the immediacy of its removal and ban in light of the circumstances at the time, in which the then-President’s words were perceived to have incited insurrection, the Facebook Oversight Board condemned Facebook’s failure to articulate the reasons and applicable standards supporting the removal and ban and the apparent eternal silencing of Facebook account holder Trump.
The Facebook Oversight Board sent the case back to Facebook for further proceedings.
The decision is no small matter and some have deemed it a landmark of equal stature with Marbury v. Madison, 5 U.S. 137 (1803), the first enunciation by the United States Supreme Court of its reason for being and its power of judicial review.
This proceeding can be seen as a foundational attempt to provide some structure for review of platform provider’s decisions.
This matters greatly (“bigly”, some might say) because internet service providers are almost entirely immune from suit for questionable decisions and at the same time the government of the United States cannot intervene to regulate online speech as it is constrained by the First Amendment to the Constitution of the United States.
Section 230: the good, the bad, and the sometimes ugly. When widespread public adoption of the internet was in its infancy, Congress sought to inhibit unprotected speech while protecting internet service providers from liability for statements not of their own creation posted on platforms. Section 230 of the Communications Decency Act of 1996 preempts federal law and precludes suit against any platform provider who does not create content. The platform is free to remove or to otherwise police its product without losing those immunities.
This would leave a user without recourse unless the platform’s actions could be challenged in court in contract, which in limited measure can be done, or through internal review with the platform provider, as is the case in this week’s opinion.
The creation of an international body not necessarily bound by the laws of any one nation cannot be other than a major inflection point in modern law. Prominent First Amendment authorities question whose law should govern such cases.
It is far too soon to tell whether this new thing is a good thing, and much is lost in cheers and jeers attaching to personalities, whether that of the former President or of the founder and CEO of Facebook. What is to the Facebook Oversight Board’s credit is that the reviewing body articulated not only the facts determined but also the standards embraced. The virtue of its reliance on standards drawn from international human rights declarations, which remain aspirational domestically if not adopted by the United States, awaits further reflection.
Links to the decision and to other materials are posted below.
The Facebook Oversight Board opinion:
2021 001 FB FBR Oversight Board Opinion
The Facebook Oversight Board announcement and overview of its opinion:
Oversight Board Upholds Trump Suspension While Finding Facebook Failed to Apply Proper Penalty
The composition of the Oversight Board:
A primer on the creation of the Oversight Board and a reflection on this week’s opinion:
Lawfareblog: About the Facebook Oversight Board
Lawfareblog: It’s Not Over: Oversight Board Trump Decision is Just the Start
Reflections on jurisprudential questions prompted by the Facebook Oversight Board determination:
Volokh Conspiracy: Whose Rules Should Govern How Americans Speak with Other Americans Online
Responses to announcement of the decision and opinion in the mainstream media:
Facebook Oversight Board Tells Zuckerberg He’s the Decider on Trump – The New York Times
Trump Is Still Banned on YouTube. Now the Clock Is Ticking. – WSJ
Facebook Oversight Board’s Trump Decision was Marbury v Madison Moment – CNBC
Two recent cases discussing Section 230 of the Communications Decency Act of 1996:
Daniels v Alphabet Inc ND Cal 2021
Murphy v Twitter Inc Cal App 2021
Discussions of United States’ positions on international human rights conventions:
Human Rights and the United States
Public commentary on the controversy submitted to the Facebook Oversight Board:
Just Lawful 