Facebook’s new ‘Supreme Court’ faces Trump ban test

The oversight board, which started accepting cases only six months ago, is about to face its defining moment: the case of one Donald Trump.

Facebook's vice president Nick Clegg. Picture: AFP

Sir Nick Clegg had a dream — a fantasy, really. The former British deputy prime minister turned Facebook PR supremo had hoped the social media giant’s new “Supreme Court”, an independent body set up to make the toughest calls on what is and is not allowed online, would have “a relatively uncontroversial period of time” to get its feet wet, he told The New Yorker.

No such luck. The oversight board, which started accepting cases only six months ago, is about to face its defining moment: the case of one Donald Trump.

Facebook asked the board to rule on whether it was right to de-platform the former president “indefinitely” for his alleged role in inciting the US Capitol riot on January 6. The verdict is expected in days. Given the board’s willingness to overturn other Facebook decisions — it has reversed the majority of cases it has ruled on so far — and the vagaries of Facebook’s own policies, there is a good chance that it will allow him back.

The board said this weekend: “This case raises exactly the kinds of issues the oversight board was set up to address, and we recognise there will be intense global interest in our decision.”

The implications reach far beyond Trump and his 35 million Facebook followers. When Facebook, Snapchat, Twitter and YouTube kicked Trump off their sites in the wake of the attack on Congress, conservative politicians screamed censorship. Even industry supporters were unsettled by the awesome display of power: a handful of west coast executives had, in effect, banished a sitting president from the web. Trump’s de-platforming crystallised regulators’ concerns over how to govern the web, and the limits of free speech and who sets them.

Mark Zuckerberg, Facebook chief executive, hopes that his corporate tribunal will dampen the zeal for a Big Tech crackdown. The company spent almost two years setting up the oversight board — writing its charter, putting it under a separate trust with $US130 million in backing from Facebook, and assembling a 20-strong panel of men and women, from Nobel prize winners to the former prime minister of Denmark, and Alan Rusbridger, former editor of The Guardian.

Its decisions are binding. Zuckerberg’s hope is that other platforms will join, creating a global social media court.

He said: “Over time we hope it will expand its scope and potentially include more companies across the industry.”

The idea of a Facebook-funded supranational judiciary becoming the web’s governing body has raised hackles. Chris Riley, an internet governance expert at Washington-based policy firm R Street, which submitted a written argument supporting Trump’s ban, said: “I am deeply uncomfortable with the privatisation of government function.”

The Trump decision will be the biggest test of the oversight board’s legitimacy. The idea for such a board goes back to 2018 when Noah Feldman, a Harvard law professor who helped craft the Iraqi constitution, handed a memo outlining the idea to his friend Sheryl Sandberg, Facebook’s operations chief. Zuckerberg had long been clear about his discomfort with Facebook’s role as “arbiter of truth” online. Yet he had not alighted on a way to solve this.

When Feldman pitched the idea to the board in November 2018, some directors objected. But Zuckerberg, with his super-voting shares, gave it the green light and announced it in January 2019, pledging “a new way for people to appeal content decisions to an independent body, whose decisions would be transparent and binding … even if I, or anyone at Facebook, disagrees with it”.

He added: “I’ve increasingly come to believe that Facebook should not make so many important decisions about free expression and safety on our own.”

Facebook’s policy and government teams crafted the board’s charter, at one point using pens with feathers in a nod to the quills used by the US founding fathers when writing the constitution.

The first 20 members of up to 40 were announced last May. Each takes a six-figure salary for 15 hours’ work a week.

They range from Tawakkol Karman, a Nobel prize-winning human rights activist in Yemen, to Endy Bayuni, an Indonesian journalist at The Jakarta Post, to Michael McConnell, a retired judge who once argued at the US Supreme Court that the Boy Scouts should be allowed to prohibit membership for gay people.

The board announced on October 22 that it was open for business — and the floodgates were opened. It has received more than 300,000 appeals, which can be made by Facebook users or by the company itself, equating to about 1700 a day. The board has so far chosen to look into only 12, with each case assigned to a group of five board members for review.

They make their recommendation, which is subject to a majority vote before it is passed. The board has ruled on seven, overturning five Facebook decisions and upholding two. Those overturned included a case in France where Facebook took down a post promoting unproven COVID-19 treatments. It ruled against the removal of another that misattributed a quote to Joseph Goebbels, claiming that it did not violate Facebook’s “dangerous individuals” policy.

The path to Trump’s reinstatement, a case that has generated more than 9000 public submissions, may lie in Facebook’s patchy enforcement. For years, the site had allowed him to make wild claims, promote violence and spread lies. The decision to ban him on January 7 appeared to be a reaction not to what he said, which was similar to the message he had been delivering for months, but to the insurrection it catalysed.

The members chosen to review this, or any case, are not revealed, the board said, “to avoid individuals being lobbied or targeted for their role in these cases”.

The case is fraught not just for Facebook but potentially for social media companies and governments seeking to rein them in. However, it is important to remember, Riley at R Street said, that “this is fundamentally a self-regulatory process. The board is a very valuable piece, but frankly it is a small piece in the grand scheme of things”.

Zuckerberg has pledged to abide by the board’s rulings, but there would be no legal fallout if he didn’t. It can’t levy fines or sue management.

The experiment continues to evolve and last week the board made a crucial change to its mandate. Until then, it had considered cases only about posts removed from Facebook or Instagram. Now it will accept appeals about content that has perhaps wrongly been left up. Should Trump be reinstated, those new powers might come in handy against the former president, who has not toned down his rhetoric. “Happy Easter to ALL,” he recently posted on his website, “including the Radical Left CRAZIES who rigged our Presidential Election, and want to destroy our Country!”

THE SUNDAY TIMES, LONDON