Posted on January 28, 2021

Trump Wants Back on Facebook. This Star-Studded Jury Might Let Him.

Ben Smith, New York Times, January 24, 2021

They meet mostly on Zoom, but I prefer to picture the members of this court, or council, or whatever it is, wearing reflective suits and hovering via hologram around a glowing table. The members include two people who were reportedly on presidential shortlists for the U.S. Supreme Court, along with a Yemeni Nobel Peace Prize laureate, a British Pulitzer winner, Colombia’s leading human rights lawyer and a former prime minister of Denmark. The 20 of them come, in all, from 18 countries on six continents, and speak 27 languages among them.

This is the Oversight Board, a hitherto obscure body that will, over the next 87 days, rule on one of the most important questions in the world: Should Donald J. Trump be permitted to return to Facebook and reconnect with his millions of followers?

The decision has major consequences not just for American politics, but also for the way in which social media is regulated, and for the possible emergence of a new kind of transnational corporate power at a moment when almost no power seems legitimate.

The board will seriously examine the Trump question, guided by Facebook’s own rules as well as international human rights law. If Facebook accepts its rulings, as it has pledged to do, as well as the board’s broader guidance, the company will endow this obscure panel with a new kind of legitimacy.

“Either it’s nothing, or it’s the New World Order,” said a lecturer at Harvard Law School who studies content moderation, Evelyn Douek, who pushed Facebook to send the Trump case to the Oversight Board.

It might surprise you to know that such a board exists — that one of the world’s most powerful executives would go to such lengths to give up control of a key tool, the delete key. But after four years of unending criticism for being too slow to act on the rise of right-wing populism on the platform, and parallel complaints from the right over alleged censorship, you can see why Mark Zuckerberg, Facebook’s chief executive, was drawn to the idea of handing the thorniest calls off to experts, and washing his hands of the decisions.


{snip} So when Facebook suspended Mr. Trump’s account indefinitely after the attack on the Capitol on Jan. 6, the Oversight Board’s leaders didn’t disguise their eagerness to take on a big and meaty question.


It’s hard to imagine a more consequential case. The decisions by Twitter and Facebook to bar Mr. Trump immediately reshaped the American political landscape. In the course of a few hours after the Capitol riots, they simply vaporized the most important figure in the history of social media.

The board took up the case Thursday, and will appoint a panel of five randomly selected board members, at least one of them American, to decide what is to be done with Mr. Trump’s account. The full, 20-person board will review the decision, and could reinstate Mr. Trump’s direct connection to millions of supporters, or sever it for good.

The odds aren’t bad for Mr. Trump. Kate Klonick, an assistant professor at the St. John’s University School of Law who described platforms as “New Governors” in an influential 2018 Harvard Law Review article, said the reaction to the Trump ban among legal academics has been “tepid and very qualified support for the outcome from people who are experts in free speech, mixed with long-term fear about what this is all going to mean for democracy going forward.” Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, who first brought the notion of a Facebook Supreme Court to the company, said he thought conservatives dismayed by the recent crackdown might be surprised to find an ally in this new international institution. “They may come to realize that the Oversight Board is more responsive to freedom of expression concerns than any platform can be, given real world politics,” he said.

Nick Clegg, Facebook’s vice president for global affairs, said he was “very confident” the board would affirm the company’s decision to suspend Mr. Trump’s account the morning after the mob stormed the Capitol, though less sure what recommendations it would make about allowing him to return to the platform in the future.

The Oversight Board appears particularly relevant right now because it represents a new kind of governance, in which transnational corporations compete for power with democratically elected leaders. {snip}


To others, the idea of global corporations becoming de facto governments is dystopian — and the board’s promise reflects low expectations for democratic governance. “No board, whether corporate or ‘independent,’ can or should replace a parliament,” said Marietje Schaake, a Dutch politician who is a member of the “real” board. “Both the storming of the Capitol and social media companies’ panicked reactions have laid bare the depth of unchecked power social media companies hold over the public debate and public safety. The balancing and weighing of rights and interests belongs with democratically legitimate decision makers. There must be accountability beyond self-regulation.”


The board’s decision in the Trump case — due before the end of April — has obvious implications here in the United States, but it could also set the company’s policy in other big democracies with leaders of the same new right-wing populist ilk, like Brazil, India and the Philippines. For them, too, Facebook is a major source of power, and they’re now eying Palo Alto warily. The Trump ban is “a dangerous precedent,” an official in India’s ruling party tweeted. In Brazil, as in the United States, conservatives have begun shifting their followers to Telegram, a messaging service.

The right-wing populists aren’t the only ones worried. Leaders from Germany to Mexico have also objected to the notion that an American company could control their speech.{snip}