Trump, the Facebook Ban, and Who Decides

May 14, 2021, 8:01 AM

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 Trump’s future on Facebook, but the future for speech on social media.

Back on January 7, Facebook restricted Trump’s access to his Facebook page and Instagram accounts, issuing an “indefinite suspension” on the ground that Trump’s 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 Facebook’s suspension of Trump was justified, the platform could not “indefinitely” suspend him; under Facebook’s 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 Trump’s 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 Right and Left

Critics on the Right who are protesting as unconstitutional the oversight board’s decision to continue letting Facebook ban Trump should either know better, or are relying on the fact that their constituents don’t. 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 user’s post or account.

But commenters on the Left and Right have have expressed concern over what they view as Facebook’s 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 board’s decision. If they do, they will find much to feel good about.

Those who criticize Facebook’s content moderation decisions as secretive, tyrannical, or biased should be praising the board’s 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 penalties—the primary flaw in Facebook’s ban was that it had never previously imposed a penalty of “indefinite suspension.”

Punting on the Ban Length

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 Trump’s penalty would actually be. But the board did not accept Facebook’s 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 Board’s Trump decision as the point where that problem became worse. The board’s 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” harm—i.e., harm that is about to occur close to immediately—a user’s 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.

The Difference Between Facebook and Twitter Decisions

It’s worth reflecting on the difference between the oversight board’s back-and-forth with Facebook and Trump‘s permanent boot from Twitter. There, Twitter announced that Trump’s tweets the week of the insurrection violated its policies against glorification of violence, which merited permanent suspension from the platform.

Twitter’s approach—if you continue to violate our rules as we interpret them, then we can ban you permanently—gives it greater ability to take action against misinformation than the more nuanced approach that Facebook’s 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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