On Wednesday, Facebook’s independent Oversight Board upheld the company’s Jan. 7 decision to block former President Donald Trump from posting content to his Facebook and Instagram pages. At the same time, the board said that Facebook’s move to “impose the indeterminate and standardless penalty of indefinite suspension” was inappropriate and insisted that the company review the case to come up with a proportionate response. In effect, the board validated the initial decision to restrict Trump’s account but put the ball back into Facebook’s court for determining whether he should be permanently kept off the platform.
The board stated, “In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities. The Board declines Facebook’s request and insists that Facebook apply and justify a defined penalty.” It further demanded that Facebook come up with this clearer penalty within six months.
At the heart of the case are two posts that went up on Trump’s account on Jan. 6 while the Capitol was being overrun by a violent mob of his supporters. One was a video in which Trump told rioters in part, “We have to have peace. So go home. We love you. You’re very special.” The other was a post that read, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously viciously stripped away from great patriots who have been badly unfairly treated for so long. Go home with love in peace. Remember this day forever!” The American Center for Law and Justice, a Christian organization run by one of Trump’s lead lawyers in his first impeachment, and an unidentified “page administrator” submitted a statement to the board on the former president’s behalf arguing that it is “inconceivable that either of those two posts can be viewed as a threat to public safety, or an incitement to violence.” Trump’s representatives further claim that he was calling for peace and blamed the violence on “outside forces” like the Oath Keepers. (Some of the insurrectionists, though, claim they thought they were following Trump’s orders.)
The Oversight Board didn’t buy this argument and ruled that the two posts “severely violated” Facebook’s policies around dangerous individuals and organizations. It found that Trump “praised and supported people involved in a continuing riot where people died, lawmakers were put at serious risk of harm, and a key democratic process was disrupted.” The initial decision to restrict the account, according to the board, was appropriate to address the threat of violence at that moment. The board now wants Facebook to decide on a more clearly defined penalty, giving the examples of just removing the dangerous content, specifying a “time-bound” suspension period, or permanently banning Trump. In addition, while Facebook says it did not consult its vague exception for rule-breaking content that is “newsworthy” or “important for the public interest,” the board called on Facebook to be more transparent on how it applies this policy and ensure that it does not take priority over preventing “significant harm.”
Nick Clegg, Facebook’s vice president of global affairs and communications, responded to the board’s ruling in a blog post, writing in part, “We will now consider the board’s decision and determine an action that is clear and proportionate. In the meantime, Mr. Trump’s accounts remain suspended.”
Facebook first blocked Trump from posting for 24 hours on Jan. 6, after he spent the day sending out videos and status updates containing misinformation about the election being stolen while a riot was consuming the Capitol. The next day, Facebook announced it would suspend him indefinitely, or at least until after Inauguration Day. CEO Mark Zuckerberg argued at the time that Trump seemed intent on using the rest of his lame-duck period to “undermine the peaceful and lawful transition of power” and that the risks of allowing him to continue posting on the platform at that time were “simply too great.” On Jan. 21, a day after the inauguration, Clegg, revealed that the company would refer its decision to indefinitely suspend Trump to its independent Oversight Board. A number of other social-media companies like Snapchat, YouTube, and—perhaps most crucially—Twitter also suspended Trump from their platforms, where he remains banned. Facebook is alone in having a purportedly autonomous body make a final ruling. The board delayed the release of the ruling in mid-April to give itself more time to read through the more than 9,000 public comments it’s received about Trump’s ban.
Conservatives were predictably livid in the immediate wake of the ban, with many seeking out alternative “free speech” platforms like Parler and Gab. At the same time, other world leaders like German Chancellor Angela Merkel and Mexican President Andrés Manuel López Obrador also expressed their dismay at major social media companies exiling Trump because of the precedent it would seem to set.
Facebook launched its Oversight Board in October 2020 to hear cases from people who’d had their content removed by Facebook and exhausted their appeals with the company’s moderators. Before the Trump case, the board had ruled on seven others, reversing Facebook’s decision to take content down in five of them. A group of five unnamed individuals from the board’s approximately 20 members—which include journalists, academics, and activists—reviewed Trump’s suspension.
Academics and policy experts have been pushing for Facebook and other social media companies to permanently ban the former president. University of Virginia School of Law professor Danielle Keats Citron and University of California, Berkeley, computer science professor Hany Farid wrote in Slate in February:
The decision around Trump’s ban will be among the first the Facebook Oversight Board will make, but it is hard to imagine a more consequential case. The world is watching to see if the board is capable of speaking truth to power, to both Zuckerberg and Trump. In saying enough is enough, the board will show that certain lines cannot be crossed. It is a privilege to use these online platforms—they don’t owe us their service. Serial violations that cause lasting, widespread harm to public health and the body politic warrant the permanent revocation of that privilege.
For the time being, Trump still has a janky, makeshift Twitter clone that he launched on Tuesday, where he can post to his heart’s content.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.