The Facebook Oversight Board Will Decide Tomorrow Whether To Reinstate Trump’s Accounts. Here’s What We Should Know.

Tomorrow is a consequential day for our democracy as the Facebook Oversight Board delivers its decision on whether to allow former President Trump back on Facebook and Instagram. It has been nearly four months since Trump was first banned “indefinitely” by the company following the January 6th insurrection and riot at the Capitol, where five people lost their lives. Today I explore what the Facebook Oversight Board is, what factors it will consider, and the likely impact of its decision, whichever way it falls.

What is the Facebook Oversight Board?

Mark Zuckerberg first established the Oversight Board in 2020 after a rocky relationship between extremist politicians and the company led him to believe that the decision of whether to penalize, suspend or ban powerful leaders like Trump should be made not by the company but by a more independent body. The Board’s only job is to hear appeals of moderation decisions made by the Company. The body is admittedly something of an experiment, having existed now for less than a year before having to make what will likely go down as one of its most consequential decisions. 

The 20-member board comprises journalists, politicians and judges from around the world who are paid for and picked by the company, but it is designed to operate independently and often does, having overturned Facebook’s decision in four out of five of its first decisions. The company abided by and implemented the Oversight Board’s decisions in each of the appealed cases, all of which involved posts that had been removed for violating the company’s Community Standards. Two of the rulings applied to the company’s policies on hate speech; one of those was overruled and one upheld.

Notably—and this is potentially good news for Trump—the Board is committed to free speech as an underlying and core principle. “For all board members, you start with the supremacy of free speech," said Alan Rusbridger, a board member and the former editor-in-chief of The Guardian. "Then you look at each case and say, what's the cause in this particular case why free speech should be curtailed?"

What Factors Will The Board Likely Consider?

There are many competing considerations when it comes to the Trump ban, any one of which could tip the decision. To understand these considerations, it’s useful to look at the history of the company’s rules and standards for posts on its platforms.

If Trump were an ordinary citizen, his statements would have earned him a ban long ago. But there is nothing ordinary about him: As a public official with enormous power, his statements, even when untrue, are considered newsworthy by the media and by the platform. Indeed, “newsworthiness” is the standard Facebook settled on early in the evolution of its rules, applying it to Trump’s increasingly extreme and false posts to justify not suspending his account earlier. As the Washington Post has noted, the “newsworthiness” standard “exempted political figures and other leaders from its hate speech rules and an explicit policy not to apply fact-checking to political leaders.”

Facebook’s initial decision to proactively court politicians and encourage them to develop vast audiences on their Pages may have made it especially problematic for it to penalize those same accounts later. Critics from within the company charged that Facebook often waived its “three strikes” policy for the former president’s allies, including pro-Trump super PACs and Donald Trump, Jr., who repeatedly violated the company’s policy on not spreading misinformation.

Zuckerberg defended the company’s position, including the newsworthiness standard, on the ground that the public had a right to hear what politicians have to say, including inflammatory and false rhetoric, so long as the comments fell short of violence. He also didn’t want to put Facebook in the middle of having to make those kinds of calls, which led him to contemplate creating the Oversight Board as early as 2018. 

January 6th proved a step too far, however. After Trump posted a video that praised the insurrectionists after the deadly attack, Facebook responded by suspending Trump’s account for 24 hours. Other platforms including Twitter followed suit. (Twitter’s ban is permanent and will not be reviewed, according to CEO Jack Dorsey.) Zuckerberg wrote the next day that “the risks of allowing the president to continue to use our service during this period are simply too great,” and the company imposed an indefinite suspension. It then referred the case to the Oversight Board.

The distinguishing factor for Zuckerberg, and what the Oversight Board likely will consider paramount, is the question of violence. The company has drawn a harder line on the posts that encourage violence, having seen how online incitement on its platforms can have horrific consequences in places like Myanmar, where internet rumors and misinformation led to mass killings and pogroms against the Muslim minority there. Those in favor of keeping Trump’s ban will likely point to his continued spreading of the Big Lie about a stolen election which led to violent insurrection, as well as his unrepentant, inflammatory and racist rhetoric around China which led to a huge upsurge in violent attacks on Asians and Pacific Islanders in the U.S.

Tempering all this is the argument that the initial decision to ban Trump from the platforms was rendered under “extenuating circumstances” related to the Capitol riot and insurrection—a situation that no longer is present. Zuckerberg expressly made this point when handing the case off to the Oversight Board. Free speech proponents on the Board could argue that in the absence of an “imminent threat,” the impact on free speech from banning the leading representative of a major political party is too great. (Note that “free speech” is being analyzed here not in the traditional First Amendment sense, as there is no government actor attempting to suppress speech, but rather in a theoretical or philosophical sense, where proponents believe that the free flow of ideas, even bad ones, is essential to a “marketplace” of thought, while opponents worry that misinformation, calls to violence and hate speech actually pollute that marketplace so badly as to render it non-functional.)

The Board received over 9,000 comments during its public comment period (including from many of the readers here), as many as it has received for all its other cases combined. These comments no doubt will also help guide the Board in its decision.

What Will The Impact of the Decision Be?

Facebook was one of the primary vectors of Trump’s misinformation campaign around the election. While he made just 28 public appearances between November 3, 2020 and January 6, 2021, he posted to his social media accounts 2,200 times including 757 Facebook posts to his 32 million followers, according to Adam Conner of the Center for American Progress, 

“At least 447 of those posts were labeled by Facebook as potentially containing election misinformation,” wrote Conner. “A closer examination reveals that at least 225 posts included fraudulent claims of victory, baseless allegations of election fraud or delusional narratives of how the results of a democratic election could somehow be changed or manipulated after the fact. Those 225 posts received at least 109,936,145 total interactions — a statistic that includes shares, comments, reactions, but does not include how many people merely saw the post — and were reshared more than 7 million times.”

Facebook and Twitter have been remarkably free from Trump’s rhetoric and influence for the past four months. While he won’t be returning to his preferred platform of Twitter, a return on Facebook could reinvigorate his supporters and further entrench the Big Lie among his followers, and could even pull others over to it. Already, some 70 percent of Republican voters do not believe Biden won the election legitimately, despite all the expert evidence, unequivocal statements by both the DHS and the DoJ, and 61 court cases that failed to show any evidence of fraud.

Experts have warned that misinformation on social media takes root when the same narrative is delivered by more than three trusted sources. Studies have shown that the former president was the single largest vector of misinformation about many topics, from mail-in voting to the coronavirus. There is no reason to believe he would not resume that behavior and further poison our civil discourse if allowed back on to Facebook.

Given this, how could the Oversight Board possibly overturn the suspension? For starters, the make-up of the board tilts in favor of free speech. With journalists and politicians, who comprise most of the Board, anything that feels like the heavy hand of censorship is likely to be viewed with skepticism. As the guardians and frequent beneficiaries of the press, these Board members are more accustomed to digesting the free flow of information, both good and bad. They believe the average person should be trusted to absorb all sources of information before sorting lies from the truth while not responding emotionally to things like hate speech and incitement to future violence. The assumption and worldview has been sorely tested in the past few years as evidence mounts suggesting human beings, as a tribal-based species, might actually be incapable of withstanding the onslaught of misinformation and, many argue, would sooner fall back on basic group think.

That argument, however, sounds paternalistic and awfully like the justifications that authoritarian regimes use to censor the press and jail opposition politicians. If Trump remains banned, there could quickly be calls around the world to ban other politicians and political figures, some of whom might actually be fighting to win the liberty of their people from oppressive regimes, but whose rhetoric could be said to incite revolution or insurrection. How would the Oversight Board distinguish those people from Trump? 

These are weighty and difficult questions to which no one has even halfway good answers. The decision tomorrow will be both celebrated and pilloried by millions no matter the outcome, with one side claiming victory while the other portends doom. But no matter which way the decision goes, its ramifications will certainly be felt immediately and likely will echo for years to come. 

Stay tuned.