Public Figures, Private Law: Facebook Oversight Board Upholds Initial Removal of President’s Statements and Presence but Condemns Facebook’s Failure to Articulate Standards or Time Limits


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:

Facebook 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:

Where the United States Stands on 10 International Human Rights Treaties – The Leadership Conference Education Fund

Human Rights and the United States

Public commentary on the controversy submitted to the Facebook Oversight Board:

Facebook Oversight Board Public Comments

Appearances Do Not An Electronic Public Square Make: Ninth Circuit Rejects Assertion that First Amendment Applies to YouTube

Prager University v. Google LLC f/k/a Google Inc. and YouTube, LLC, No. 18-15712.  February 26, 2020.


Like the universe, the internet and its multiple platforms appear to be ever-expanding, even as the law of this new domain runs to catch up with novel features and equally novel claims.  The development of largely open online platforms upon which all and sundry may present their ideas, including their video recordings, gave rise to this suit. Prager University (“PragerU”), an informational resource which is not a true university, presents video discussions about politically conservative ideas.   

PragerU has objected to YouTube’s classification of its content as subject to YouTube’s “restricted” setting and to YouTube’s concomitant limitation on some of PragerU’s advertising.  The “restricted” setting is a user driven device which permits filtering content that some may see as objectionable. YouTube manages the classifications of content. Content providers who object to YouTube’s restricted classification may appeal, but the factors involved in classification and the reasons for decisions remain internal to YouTube.

PragerU has argued that YouTube is subject to the First Amendment because YouTube acts as an electronic public square.  Much as with traditional public squares, speech must be on a come one, come all basis, without hindrance by the platform provider. As such, PragerU has insisted, YouTube’s limitations on the visibility of PragerU’s content violate its First Amendment rights.

Not so, says a panel of Ninth Circuit justices, relying on an observation from the Supreme Court’s last term that the mere hosting of another’s speech will not make a private entity public.  Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019).  

The First Amendment constrains only the government.  PragerU’s argument that YouTube has assumed a traditionally and exclusively governmental function falls far short of the mark. Inviting the public to avail itself of private property will not make a private property holder a state actor.  Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972).  

Unlike the government, which is forbidden by the First Amendment from interfering in citizens’ speech, a private entity may do as it pleases, notwithstanding that its choices may at times displease.  

The panel also rejected PragerU’s assertion that YouTube’s terms of use constituted false advertising in violation of the Lanham Act.  If this were so, the court observed, any agreement could be transformed into marketing material.

Finally, the Ninth Circuit refused to recognize any binding effect to YouTube’s public pronouncement that it aspires to uphold First Amendment principles.  Notwithstanding its legal tone, this statement was mere opinion.  More importantly, there is no “opt-in” feature that would allow a private actor to become a state actor by force of its own will.

JustLawful prognostication:  This decision will not end this matter.  There is simply too much speech at stake and too few platforms of YouTube’s scope to think otherwise.  This is not to suggest that the Ninth Circuit is incorrect, but that further exploration of these issues is expected.  This is particularly so where, as the Ninth Circuit noted, both parties offered that were the court to rule against them, the sky would surely fall (Slip. Op., pp. 13-14).  

Prager University v. Google 9th Cir. February 26 2020

 

Viral Publication and Opinion in a Divided Nation: CNN Settles with High School Student Said to Have Been Defamed by Broadcast of Video of Confrontation with Native American Protester on the National Mall

Sandmann v. Cable News Network, et al., No. 2:19-cv-00031 (E.D. Ky.).  Related matter:  Sandmann v. Washington Post Company, No. 2:19-cv-00019 (E.D. Ky.)


Nicholas Sandmann visited the National Mall on January 18, 2019, joining with fellow Catholic High School students in a March for Life event.  There Sandmann was confronted, face to face, by Nathan Phillips, a Native American participating in a separate event, subsequent to what appears to have been a series of taunts exchanged among protest groups. 

The video confrontation, published nationally by mainstream media, including Cable News Network (CNN), precipitated officials, news commentators, church officials, and others to characterize Sandmann, shown in a “MAGA” (“Make America Great Again”) hat, a symbol of the current executive administration, as a racist. 

Sandmann filed complaints against several media entities separately, two of which, against the Washington Post Company and CNN, have been assigned to the same senior federal judge in the Eastern District of Kentucky.  

Following dismissal with prejudice of the complaint against the Washington Post, Sandmann was granted reconsideration which set aside the dismissal in part and granted Sandmann leave to amend his complaint against the Washington Post.  

In October, 2019, CNN’s motion was denied to dismiss and Sandmann’s motion to amend his complaint were granted. 

A proposed discovery and pretrial schedule was submitted to the court in the Eastern District of Kentucky in both cases on  January 3, 2020. The parties to the CNN case reported publicly on January 7, 2020 that settlement with CNN without trial, on undisclosed terms, had been reached. 

Whether the settlement signals a change of course among other media defendants will likely unfold in the not distant future. 

Notwithstanding — and perhaps particularly in light of — the rhetoric accompanying this case, the legal issues, while well grounded in history, seem to call for particular examination in the age of instant worldwide publication and the simultaneous formation of opinions.  Whether a matter is one of fact, and therefore actionable in defamation, or of opinion, and therefore not, is a longstanding principle. Whether this is changed or modified or subject to new refinement in the age of instant worldwide transmittal and simultaneous formation and publication of opinions remains to be seen.

CNN’s account of the settlement may be found at:

CNN Settles Lawsuit Stemming from Viral Video Controversy

The opinion dismissing Sandmann’s initial complaint against the Washington Post, of some historic note, may be found here:

2019 07 26 Sandmann v. WP Company__Memorandum and Order Granting Motion to Dismiss

Criminalizing the Publication of Private Images Without Consent: The Supreme Court of Illinois Finds No Constitutional Flaw in “Revenge Porn” Statute

People v. Austin, 2019 Il 123910.  October 18, 2019.


Illinois boasts of the most rigorous law in the land respecting criminal liability for the dissemination of sexual images without consent. 

A trial court found the statute to be an impermissible content based speech restriction,  The circuit court dismissed a case against a woman who provided third parties with images of her former fiancee’s lover that were created and transmitted electronically between the former fiancee and lover.  

The state’s highest appellate court has reversed that determination, holding that the statute was not a content based regulation of speech but a valid exercise of state power to protect privacy.  

The court noted that the colloquial term “revenge porn” hardly captures the depth of the ills that may ensue when private images are published.  This is particularly so where the internet has produced its own niche for such images, drawing multitudes of eyes. 

There is an avid thirst for such materials in the online world, and there is no guarantee that even the most rigorous scrubbing of the internet would remove all images once set free in the ethereal, yet durable, online world.  Reputations and livelihoods may be lost, and families and loved ones may suffer. The court observed that there is no shortage of enduring damage that can ensue from publishing private images, and, in the court’s opinion, no civil law remedies will come close to ensuring such behavior is discouraged. 

The court’s majority sidestepped content analysis by observing that the statute does not concern content  so much as it makes criminally culpable the intentional publication of private images without consent. As only private images are of concern, the statute does not burden more speech than is necessary.  Moreover, to be criminal, publication must be intentional and with knowledge that the images were considered private.  

The court declined to announce a new species of speech categorically unprotected by the First Amendment.  Instead, the majority decided that the state has long acted with legitimacy in protecting privacy without encountering First Amendment infirmities where they are found to survive intermediate scrutiny. 

The court noted that the statute is not unlike other laws which prohibit disclosure of private matters such as medical records or identifying information.  Moreover, state action addressing private communications ordinarily receives somewhat less constitutional protection than does speech on matters of public concern, for the latter are the core of the First Amendment’s concerns.

Given the statute’s narrow scope  — the intentional distribution of sexual images understood to be private —  the court rejected an over-breadth challenge, as it is not likely that the statute could be found to proscribe a substantial amount of protected speech. Where it was conceded that the statute was sufficiently clear to avoid arbitrary enforcement, only a vagueness challenge remained, but the plain meaning of the plain language of the statute defeated its recognition.

The court also rejected the argument that the recipient of a sexual image acquires property interests that would invoke due process protections.  Being cognizant of whether an image was intended to be private does not require mind-reading. 

Two dissenting justices decried the majority’s recognition and subsequent abandonment of strict scrutiny as the standard of review and sharply dismissed the notion that the statute does not concern content when the subject of the statute is content:  private sexual imagery.  The statute, which provides no standard of intent, cannot be seen as narrowly tailored to serve any compelling state interest that might be found.  There are less restrictive means than criminal conviction to address any issues presented by ‘revenge porn,’ such as a private right of action.  

JustLawful Observation:  Within the past decade many states have enacted laws criminalizing the publication of private images.  Vermont has already considered its state statute, and found it to be constitutionally sound. More challenges will no doubt ensue, and it is not beyond imagination that at some point the United States Supreme Court will be requested to address the concerns raised by the statute.  This is particularly so where new categorical exceptions from First Amendment protection — such as racial epithets — are under discussion as potential solutions for otherwise insoluble and repetitive First Amendment issues.  

People v. Austin, 2019 IL123910

State v. Van Buren 2018 VT 95