On May 5, the internet was aflutter with tweets, posts, and headlines announcing that Facebook had banned former President Donald Trump. The real story is more interesting and complicated. Understanding it is critical to predicting not just Trumps future on Facebook, but the future for speech on social media.
Back on January 7, Facebook restricted Trumps access to his Facebook page and Instagram accounts, issuing an indefinite suspension on the ground that Trumps posts during the Capitol insurrection the day before had violated the platforms standards on praising or supporting individuals engaged in terrorism or other public safety threats. It then referred the decision to its oversight board, a group of experts established by Facebook in October 2020 with the power to review its content moderation decisions.
Though the board found that Facebooks suspension of Trump was justified, the platform could not indefinitely suspend him; under Facebooks rules, user suspensions were either specifically time-limited or permanent.
The board also said that Facebook must explain how its punishment is proportional to the harm Trumps posts caused, and gave it six months to offer such an explanation. Though Facebook may decide at that point to reinstate him, the net result is that for now, Trump is still off Facebook and Instagram.
Critics on the Right who are protesting as unconstitutional the oversight boards decision to continue letting Facebook ban Trump should either know better, or are relying on the fact that their constituents dont. Facebook is a private company, and the First Amendment, which applies only to the government, has nothing to say about how or whether it can remove a users post or account.
But commenters on the Left and Right have have expressed concern over what they view as Facebooks unchecked power to ban users or take down posts generally, and world leaders like Trump more specifically. Indeed, the oversight board itself was a response to these concerns; as Mark Zuckerberg said in 2019, the goal of the board was to relieve Facebook from making so many decisions about speech on [its] own.
So those who expressed concerns about the scope of that power should meaningfully engage with the boards decision. If they do, they will find much to feel good about.
Those who criticize Facebooks content moderation decisions as secretive, tyrannical, or biased should be praising the boards decision. It did keep the initial ban in place, but imposed onto Facebook what decision-making literature calls a burden of explanation when making content moderation decisions, the company must choose pre-established procedures and articulated reasoning over vagueness, uncertainty, and ad hoc decisions.
The board also pushed Facebook to be more consistent with its penaltiesthe primary flaw in Facebooks ban was that it had never previously imposed a penalty of indefinite suspension.
One might cynically say that the whole reason Facebook suspended Trump indefinitely in the first place was that it had planned for the board, not it, to define how long Trumps penalty would actually be. But the board did not accept Facebooks invitation to make that decision for it.
On the other hand, those who are concerned about disinformation online and think social media platforms should do more about it might also someday point to the Boards Trump decision as the point where that problem became worse. The boards mandate to Facebook was for its decisions to demonstrate a close connection between its bans of users and the harms those users speech have caused.
With that in mind, Facebook may be much more likely to find that in the absence of user speech calling for what First Amendment law terms imminent harmi.e., harm that is about to occur close to immediatelya users access should be left undisturbed.
This is a good rule when a Stop the Steal riot is ongoing or about to happen. It is less useful when users take to Facebook for weeks or years later to falsely claim that the steal has already occurred.
Its worth reflecting on the difference between the oversight boards back-and-forth with Facebook and Trumps permanent boot from Twitter. There, Twitter announced that Trumps tweets the week of the insurrection violated its policies against glorification of violence, which merited permanent suspension from the platform.
Twitters approachif you continue to violate our rules as we interpret them, then we can ban you permanentlygives it greater ability to take action against misinformation than the more nuanced approach that Facebooks Oversight Board seems to contemplate. Ironically, it has also seemed to permit Twitter to dodge some of the blowback that Facebook has received for the same action.
Policing speech in the absence of procedure and transparency is deeply problematic. But giving Covid-19 deniers, insurrectionists, and inciters of violence the right to disseminate disinformation on social media unless the platforms hosting them can show their speech has caused an identifiable and immediate harm to another person can come at the expense of the truth.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Enrique Armijo is a law professor at Elon University School of Law and an affiliated fellow of the Yale Law School Information Society Project and the University of North Carolina-Chapel Hill Center for Information, Technology, and Public Life. He teaches and researches in the areas of law and technology and the First Amendment, and is a regular contributor to the Bloomberg Law radio program. Follow him on Twitter: @e_armijo.
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Trump, the Facebook Ban, and Who Decides - Bloomberg Law
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