In a move that might postpone the day when the federal government moves in to try to stop abuses of America’s social media, Facebook’s internal review board ruled on Wednesday that its management properly blacked out President Trump, but the board said that the ban should not have been made indefinite.
The decision, a historic act of self-regulation by one of the world’s most influential private communications companies, does open the prospect that the former President could use the platform again – provided that Facebook, within six months, comes up with new standards to prevent misuses and abuses by him and potentially millions of others.
The Board’s action could be understood as (1) an attempt to do the right thing, in a cultural sense, (2) a self-protective gesture to preserve the platform’s editorial freedom, (3) a message to government to keep hands off, or (4) some combination of these.
Because this was done from within the company, it could help bolster the argument by Facebook’s Mark Zuckerberg that his company is not like a government-monitored public utility, but rather is as capable of regulating itself and thus should remain as free as a newspaper or magazine, with editorial choices fully protected by the Free Press Clause of the Constitution’s First Amendment.
For years, some in Congress have been pondering the immense power that social media have gained to communicate to the world, with no restraint beyond self-restraint. The realization of that power has led to thoughts on Capitol Hill about some form of government control on the users and the content of Facebook and other giant operators of Digital Age platforms.
Demands for official action have been rising since Facebook, in particular, played such a prominent role as the conveyor of misinformation during the presidential election campaign that resulted in President Trump’s 2016 victory, and during the campaign in 2020 that resulted in his defeat.
In self-defense, Facebook’s executives from time to time have taken selective though limited action to police how their platform has been used, but it has been reluctant to make itself an intrusive regulator of what it considers “political speech,” meaning the messages sent out by elected officials, in the U.S. and abroad.
It was in policing abuses of its policy that led the management on January 7 to suspend indefinitely Trump’s Facebook page and his account on Facebook’s Instagram. It did so after concluding that his entries contributed to the violent attack on the Capitol in Washington on January 6. (Note that the suspension was indefinite, not permanent. The management of Twitter did permanently ban Trump.) Facebook’s suspension was then submitted for review by the semi-independent Oversight Board, a 20-member panel set up for just such second-guessing of management.
In some ways, the Board’s report could be read as a rebuke of hasty action by management. Its report called the suspension “indeterminate and standardless.” But its report also appeared to be a genuine effort to initiate a process of self-examination that within six months might make Facebook considerably more sensitive to how access is used.
However, a major political question will remain, while that internal process moves forward, and that is whether this will go far enough to protect the platform’s continued independence from government.
In fact, there are several ways to approach official regulation of a medium of expression without violating the First Amendment. If a medium uses something owned by the public – like the electromagnetic broadcast spectrum – it can be subjected to some controls, as network TV and radio have long been. The digital networks that make up the Internet, like Facebook, are not government or public property.
If a medium uses its singular power to stifle the rise of competitors, it potentially could be challenged under the antitrust laws. And if its influence becomes so powerful that it can threaten society’s peace and good order, it can be treated like a public utility, somewhat akin to providers of essential services such as a telephone or gas company. (Europe now does some regulation of social media platforms, by such things as requiring them to respect people’s demands to remove personal data about them from databanks – enforcing a so-called “right to be forgotten.”)
Those in America who pay attention to the conduct of giant media companies like Facebook have been waiting, eagerly, for the Oversight Board to make up its mind about former President Trump’s access.
It was widely known on Tuesday night that the Board would be issuing its conclusions on Wednesday. Unfortunately, America woke up to some seriously flawed published reports on what the Board had decided.
For example, rushing into print, the nation’s largest wire service, the Associated Press, began its story this morning with this paragraph:
“Former President Donald Trump won’t return to Facebook. The social network’s quasi-independent Oversight Board voted to permanently ban his account after it was suspended four months ago for inciting violence that led to the deadly Jan. 6 Capitol riot.”
That is wrong. Trump may yet get to return. The Board did not permanently ban him. Indeed, it did not ban him at all; it simply ratified, in part, what management had done. And it made clear that it does not favor using bans that are permanent. (NOTE: The AP promptly corrected its account.)
For those who wish to read the Board’s own news release describing what it did, it is at this site: https://www.oversightboard.com/news/ The actual, much longer report, can be found at this site: https://www.oversightboard.com/decision/FB-691QAMHJ
Some of former President Trump’s followers immediately took to social media to lambaste the report. One such message urged the Supreme Court to overrule the Oversight Board. Of course, since this was a decision made by a private entity, managing its own resources, it is not subject to review by any court. There was no law compelling it to act.
