Will Facebook’s “Supreme Court” reinstate Donald Trump’s account?

SINCE JANUARY, Donald Trump has been missing from Facebook, Twitter and YouTube, after his online posts about the Capitol riot in Washington, DC, caused the firms to suspend his accounts for inciting violence. For many Americans, the sound of silence is welcome. Without the megaphone of social media, Mr Trump is muted. Facebook has not just blocked his account but is scrubbing other users’ content that features his voice.

The ban raises questions about free speech and online platforms’ power. Even Senator Bernie Sanders, no Trump fan, confesses to feeling uncomfortable that the ex-president has been silenced by a “handful of high-tech people”. YouTube’s boss, Susan Wojcicki, has said the video firm will lift its suspension only “when we determine that the risk of violence has decreased”. Twitter will not relent, full-stop.

Facebook is taking a different approach. Mark Zuckerberg, its boss, made the call to suspend Mr Trump’s account. But whether to reverse that will be decided this month by 19 experts on the firm’s Oversight Board (OB), in effect its “Supreme Court”. The board’s decision will be a high-profile test of whether a middle ground between unfettered corporate autonomy and government regulation can be an effective tool in tackling thorny decisions on content.

Mr Zuckerberg floated the idea of the board in 2018, and its first slate of members was announced last year. It is meant to be an independent body that can render binding decisions on the social-media giant and suggest policy tweaks. Facebook has put $130m into a trust to fund it for at least six years. Board members are a global bevy of brainiacs: ten are academics, five work in non-profits and think-tanks, two hail from journalism, one from politics and one is a Nobel peace laureate. “All the members have free speech as part of their core values,” says Ronaldo Lemos, a Brazilian lawyer who is an OB member.

After posts are removed, users of Facebook and its sister social network Instagram can appeal to the OB; this has happened some 300,000 times. The board sifts through appeals to choose cases, which it has 90 days to adjudicate. Facebook itself can also refer cases directly to the OB, as it did with Mr Trump. A computer randomly assigns each case to a five-member panel. Board members are part-time, but the OB employs 40 staff, who help with case selection and research, rather like Supreme Court clerks. Just as interested parties in Supreme Court cases can submit briefs, people can submit comments to the board.

So far it has taken up 12 cases and received 10,000 comments, 9,800 of them related to the Trump ban. When the panel reaches a conclusion, the majority of the board has to approve the decision, which is then written up and made public.

The dozen cases are a varied bunch. Was Facebook right to take down images of blackface? Or a photo of a bare nipple raising awareness of breast cancer? Or a video arguing for access to an unproven treatment for covid-19? Of the seven cases it has ruled on, the board overturned Facebook’s decision five times. It does not take into account the laws of any specific country but weighs Facebook’s “community standards” and “values” with international human-rights law. It can also coax Facebook to make changes to its policies. Some of Facebook’s tweaks to handling anti-vax content were a response to the board’s criticisms.

Which way will it go on Mr Trump? From its first decisions “it was clear how highly the board prizes freedom of expression,” says Evelyn Douek, a law lecturer at Harvard. “That made me think Trump’s odds just got better.” Not everyone agrees. A lot will depend on how the board interprets human-rights law, as opposed to Facebook’s standards, which Mr Trump violated routinely. “Trump’s account involves not just his free speech but has an impact on other people’s rights,” says David Kaye, a former UN rapporteur for freedom of expression, who will be “really surprised” if the OB contradicts Facebook’s decision.

Either way, controversy will continue. “Facebook is still holding the reins far too tight,” says Ms Douek. On April 13th it announced that the board would have authority to review appeals related to content that had been kept on the platform. Until now the board has only been able to review appeals against the removal of content.

Despite criticism, the board is worth watching for several reasons. One is that it will help bring some of Facebook’s decisions into the light. “One of the challenges has been the lack of information that’s available in how exactly Facebook works and how its automated systems are trained and evaluated,” says Nicolas Suzor, an Australian law professor and OB member.

Second, in ruling on Mr Trump the board will guide Facebook on how to treat other politicians, such as Brazil’s Jair Bolsonaro and the Philippines’ Rodrigo Duterte. Facebook and Twitter have operated with a “newsworthiness exemption” for such leaders, allowing speech that violated their own policies because of the speakers’ position and the potential benefit to users from hearing them. “There’s the saying, ‘with great power comes great responsibility’. But with the newsworthiness exemption, great power comes with indemnification from responsibility,” says Renee DiResta of the Stanford Internet Observatory.

And, third, the board’s verdicts will ripple across social media. Its decision on Mr Trump will put pressure on Twitter and YouTube. It will become a de facto standard-setter. “If the Oversight Board could be the germ that gets buy-in from industry, that’s wonderful,” says Sir Nick Clegg, Britain’s former deputy prime minister, who is Facebook’s communications chief.

Still, Facebook’s experiment is just a start. The Trump decision will be contentious. But if there is one thing all can agree on, it is that a single board will not alone solve social media’s ills. ■