Facebook’s Oversight Board and the Trump Account Ban

The Oversight Board, a body established by Facebook to review content decisions – often described as a ‘Supreme Court for Facebook’ despite lacking judicial personnel – faces scrutiny regarding its independence due to its funding source. Officially known as the Oversight Board (or FOB), it recently issued a significant ruling.

Decision on Former President Trump’s Account

Facebook’s independently appointed ‘oversight’ panel has determined that the reinstatement of former U.S. President Donald Trump’s Facebook account should not occur at this time.

However, the board challenged the company’s decision to implement an ‘indefinite’ ban, asserting that it deviated from standard penalty procedures outlined in Facebook’s existing policies, such as penalty strikes or permanent account closure.

Board’s Statement and Recommendations

In its official press release, the board stipulated that Facebook should revisit its decision regarding Trump’s account within a six-month timeframe.

The board seeks a determination of “the appropriate penalty,” effectively postponing a final resolution.

During a press conference, the FOB’s co-chairs, Michael McConnell and Helle Thorning-Schmidt, alongside director of administration Thomas Hughes, discussed the ruling and the deliberative process, which resulted in a majority decision with documented minority opinions.

Justification for Suspension vs. Penalty

The FOB acknowledged Facebook’s justification for suspending Trump’s account on January 7th, and for removing posts violating policies against supporting violent acts.

Nevertheless, the board concluded that the tech company imposed an inappropriate penalty, inconsistent with its established rules.

The board requires Facebook to re-evaluate the case, encouraging a six-month deliberation period before either restoring Trump’s account, enacting a permanent ban, or defining a suspension with a specific duration.

Clarity and Consistency in Content Moderation

McConnell emphasized that Facebook’s policies do not permit indefinite suspensions, stating that such restrictions lack the clarity and understandability expected in internationally recognized principles of freedom of expression.

He added that indefinite penalties “do not pass the international or American smell test for clarity, consistency and transparency.”

Facebook’s Responsibilities and Policy Recommendations

Thorning-Schmidt stated that the board’s role is to ensure Facebook’s rules and processes align with its content policies, values, and respect for human rights.

She criticized Facebook for “shirking its responsibilities” by applying an indeterminate penalty and deferring the case to the board.

The board insists that Facebook apply and justify a clear penalty.

Alongside the Trump decision, the FOB presented seven policy recommendations, including assessing the risk of inciting harm before a ban on an influential user expires, and refraining from reinstating users who still pose a risk.

Further Policy Recommendations

Additional recommendations include the development of a new policy to govern responses to crisis situations, and establishing limits on discretionary power, including a requirement for timely review of its own decisions.

The board also requested that Facebook conduct a review of its platform’s role in the spread of election fraud narratives and publish the findings.

Binding Decisions vs. Recommendations

While Facebook is not obligated to implement the FOB’s policy recommendations, it is bound by individual case decisions.

Facebook has seven days to implement the current decision, initiating a review of Trump’s suspension within that timeframe.

Transparency and Independent Oversight

Thorning-Schmidt highlighted that the policy recommendations build upon a “pattern of recommendations” issued in previous cases, addressing shortcomings in Facebook’s content policies and advocating for greater transparency.

She asserted that the Oversight Board’s decision underscores the importance of independent oversight, and that anyone concerned about Facebook’s power should support the board’s efforts to hold the company accountable.

Shifting Towards Fair Content Moderation

Thorning-Schmidt stated that the board aims to transition Facebook from an arbitrary approach to content moderation to one characterized by clear, transparent rules that treat all users equitably.

This is crucial not only for users in the United States but also for political leaders, campaigners, and dissidents worldwide who rely on Facebook for communication.

Addressing Concerns About Passing the Buck

During a Q&A session, the FOB addressed concerns about simply deferring the decision back to Facebook.

Thorning-Schmidt refuted this claim, arguing that the board has provided clarity on the necessary steps for Facebook to resolve the impasse.

She reiterated that Facebook’s initial suspension of Trump was justified, but the indefinite ban was unacceptable due to its inconsistency with the company’s own rules.

Equal Application of Rules

“What we’re basically saying is that it can’t be left up to Facebook to just choose their own penalty for users — they have to follow their own rules,” she explained.

“If users have to follow the community standards and the values of Facebook and Instagram, Facebook has to do the same. So we’re basically saying that all users are equal and that Facebook also has an obligation towards the community standards — and that is to follow their own rules.”

Potential for Future Appeals

McConnell confirmed that Facebook’s subsequent decision on Trump could be appealed or referred back to the board, potentially prolonging the uncertainty surrounding the former president’s Facebook deplatforming.

He expressed hope that Facebook will follow the board’s recommendations, leading to a more deliberate, rule-based, and transparent decision-making process.

Addressing a Pattern of Arbitrary Decisions

McConnell emphasized that Facebook has a history of “ad-hoc-ery,” citing the over 20,000 appeals received from users frustrated by unclear rules and inconsistent decisions.

He believes the Oversight Board’s existence is designed to foster a culture of clarity, transparency, consistency, and fairness in content moderation.

Facebook’s Response and Trump’s Reaction

Facebook briefly responded to the ruling, welcoming the board’s affirmation of the Trump ban.

The company stated it will now consider the requirement to re-examine the penalty and “determine an action that is clear and proportionate.”

Facebook confirmed that Trump’s accounts remain suspended.

Update: Trump responded to the ruling on his website, calling the continued suspension from mainstream social media platforms a “total disgrace and an embarrassment to our Country.”

He claimed that “free Speech has been taken away” and called for “corrupt social media companies” to “pay a political price.”

A Period of Quietude?

The past five months have been remarkably tranquil on prominent social media platforms following the suspension of Donald Trump’s accounts, a consequence of the events surrounding the Capitol’s breach by his supporters.

For a comprehensive understanding of the circumstances leading to Trump’s deplatforming, consider reviewing this insightful analysis from TechCrunch’s Taylor Hatmaker.

In essence, Trump seemingly exhausted his allowances for violating social media guidelines after allegedly inciting an insurrection on U.S. territory on January 6th. This occurred with the assistance of major social media companies, whose community guidelines generally do not endorse violent uprisings.

However, these platforms had previously tolerated Trump’s behavior for years, permitting instances of bullying, abusive language, the dissemination of hateful content, and the amplification of disinformation regarding viewpoints he opposed—including those of his political opponent, Joe Biden, and the subsequent election results (which, to reiterate, Trump lost and Biden won, a fact often obscured by Trump’s self-serving narratives).

The unrest and violence of January 6th should not have been unexpected, given Trump’s consistent pattern of openly expressing controversial opinions, often in emphatic, all-caps pronouncements on mainstream social media.

Tech companies, despite appearing surprised, swiftly responded by suspending Trump’s accounts across multiple platforms.

Twitter, long considered accommodating to Trump—and whose prominence was significantly boosted by his frequent use—announced a permanent ban. The platform recently surveyed users regarding its policies concerning world leaders, receiving nearly 49,000 responses, but has yet to announce any resulting policy adjustments.

Facebook also banned Trump, initially for a period of “at least two weeks,” then “indefinitely.” However, it introduced a complication by referring the indefinite ban to the Oversight Board (FOB), effectively outsourcing the decision regarding a potential return for Trump, contingent upon the recommendations of its selected ‘external experts,’ and thereby mitigating criticism of its initial ban.

The independent review body had only begun accepting cases in October 2020, issuing its first content review decisions in January.

This represented a substantial workload for Facebook’s content review teams (addressing issues such as nudity, extremist content, and hate speech), and arguably insufficient preparation for making a definitive ruling on Trump’s case.

Indeed, foreshadowing today’s indecisive ruling, board member Alan Rusbridger expressed reservations about the limited options available—to uphold or overturn the ban—suggesting a desire for an intermediate solution, akin to a “sin bin” in soccer, allowing for temporary suspensions for misconduct, during a House of Lords testimony in March. However, the Board’s rules were predetermined by Facebook.

As weeks passed, and following a surge of public feedback, the FOB opted to extend the deliberation period regarding Trump’s case, acknowledging the global significance of the decision.

Prominent voices advocating for Trump’s continued ban from Facebook include Alex Stamos, Facebook’s former CSO, and Nick Clegg, Facebook’s current VP of communications, a former deputy prime minister of the U.K.

“We believe our decision was necessary and right,” Clegg stated in January, adding with a touch of irony: “Given its significance, we think it is important for the board to review it and reach an independent judgment on whether it should be upheld.”

The list of civil society organizations urging that Trump not regain access to Facebook’s platform is as extensive as Trump’s vocal presence was when he was permitted to freely express himself on social media.

Following Trump’s deplatforming, several politicians outside the U.S. voiced concerns about the power of tech companies to silence a sitting president, while also advocating for platform regulation.

Critics argue that each high-stakes decision delegated to the FOB represents a further erosion of genuine accountability.

This is perceived as Facebook’s most sophisticated public relations maneuver yet—a performative display of democratic oversight, as its hand-picked ‘high court’ of experts opaquely and academically addresses a limited number of cases, in contrast to the billions of decisions its platform makes daily regarding individuals, communities, and societies worldwide.

https://twitter.com/sivavaid/status/1389922265693835268

It’s important to note that the FOB lacks policy-making authority; it can only issue rulings to provide Facebook with public relations material to counter criticism regarding its algorithmic control over global speech.

https://twitter.com/ZephyrTeachout/status/1389921215511400454

The current decision concerning Trump is arguably the FOB’s most significant to date.

Therefore, it is noteworthy that the board has demonstrated a degree of resistance. If Facebook anticipated creating a compliant, decision-outsourcing mechanism to deflect blame, it may be disappointed to find its self-created review body requesting a more thorough reassessment.

Even if this ultimately leads to Trump regaining his platform.

However, by requiring Facebook to revisit its Trump ban while simultaneously proposing a series of policy recommendations aimed at standardizing its rules and processes, the board is pressuring the tech giant to implement platform-wide changes under public scrutiny—changes that Facebook’s bylaws for the FOB do not explicitly authorize.

One could argue that this represents a strategic maneuver.

However, the board remains a self-regulatory entity, its membership selected by Facebook, with a prerequisite that recruits demonstrate a “commitment to free expression.”

The initial cohort (of 20 members) comprises law professors, former journalists, politicians, and advocates for free speech and digital rights—essentially, individuals aligned with Facebook’s values, providing external credibility and intellectual rigor to its self-regulatory efforts, while reinforcing its commitment to maximizing speech.

Thus, this arrangement continues to benefit Facebook.

If the ‘worst’ outcome for Facebook is not merely blame-deflection, but concrete recommendations for transforming its inconsistent rules into a globally acceptable speech moderation standard, it could leverage the FOB’s perceived consensus to enhance its reputation and potentially avoid unwanted regulatory oversight.

Conversely, the worst outcome for Facebook may be that it is fundamentally beyond reform, leading it to disregard the board’s recommendations and face a potential backlash. (Notably, the FOB indicated today that it is establishing a working group to monitor Facebook’s implementation of its decisions and its response to policy recommendations, signaling its continued oversight: ‘Facebook, we are watching you.’)

As for Trump, he has not reacted favorably to being removed from social media. Or, at least, that is our assumption, given his prior criticisms of big tech ‘censorship.’ However, we confess to not particularly missing his online presence.

Evidence of Trump’s discontent can be found in a recent report by Fox News, detailing the launch of his own “communications platform.”

“The space will allow Trump to post comments, images, and videos,” Fox reported, suggesting Trump may have recently discovered the existence of the Internet, months after being banned from Twitter and Facebook.

This personal blog—which, like the Oversight Board, bears a Trumpian blend of self-aggrandizement and simplicity (‘From the Desk of Donald J. Trump’)—appears to have been active since March 24th, based on the timestamps of its limited posts.

But is anyone actually reading Trump’s blog? Did any financial markets react to his online pronouncements? If a blog post is published without an audience, does it truly matter?

It is peculiar to consider Trump as merely a source of provocative social media content. Remove the platform for his voice, and—the unfortunate truth is—it is not the platforms that have fallen silent.

Whether Trump will regain access to Facebook remains uncertain. In the meantime, let us appreciate the quiet.