Facebook’s “Supreme Court” might have upheld Donald Trump’s suspension, but that doesn’t make it a real court.
Back to you, Zuck. Facebook’s oversight board earlier today declined to act as a human shield for the social network. Asked to rule on the suspension of Donald Trump
’s account in the wake of the January 6 Capitol riot, it passed the ultimate decision back to Facebook.
For now, Trump’s suspension stays in place. But the board has given Facebook six months to “reexamine the arbitrary penalty it imposed on January 7 and decide the appropriate penalty.” No hiding behind the judgment of outsiders when Republican politicians complain about “anti-conservative bias,” or when other world leaders such as German Chancellor Angela Merkel
worry about the precedent of a corporation pulling the plug on an elected politician—Facebook will have to tell us what its own red lines are.
The oversight board has been called Facebook’s “Supreme Court,” and the sad fact is that its judgments matter far more than those of the highest courts in many sovereign nations. Yet the board also tacitly acknowledged today that it is a Potemkin court—nothing more than an advisory service to a company that doesn’t have to take any notice of anything it says. It can try to solve Facebook’s problems, but it can’t solve the problem of Facebook.
Which is this: Lives depend on what unnamed, unelected people in a single corporation decide is acceptable speech, based on rules that were drawn up in secret and in response to situations no one could have envisaged in a dorm room in Cambridge, Massachusetts, in February 2004. With more than 2 billion users, Facebook is setting speech standards around the world. What applies to Trump will have to apply to Narendra Modi of India, and Rodrigo Duterte of the Philippines, and any other leader inclined to use this powerful platform for their own ends. American lawmakers have consistently failed to grapple with the unprecedented challenges posed by regulating Facebook, and sometimes they barely seem to understand what it does. For now, the board is the best restraint we have—but that isn’t saying much.
Facebook set up the oversight board in 2018, in response to a rash of bad headlines, and the board began operation a month before the 2020 U.S. election. It is funded (through an arm’s-length trust) by Facebook. The cases it considers are referred to it by Facebook, and it relies on Facebook for the information needed to investigate them. Of the 46 questions the board asked Facebook about Trump’s suspension, the company declined to answer seven entirely and two partially—including whether its design decisions contributed to the events of January 6. The board is not supposed to offer unsolicited advice like “Hey, have you guys ever thought that the way the News Feed functions might be bad for democracy?” or “Is it possible that Facebook is too big and too dominant to exist?” The oversight board cannot make laws, or set broader policies. And unlike a real court, it has no powers to compel Facebook to testify, or to disclose evidence, or indeed to do anything at all.
Yet this is the forum in which the next U.S. election may be decided. Trump believes that getting back on Facebook is “the linchpin to his fundraising and online political strategy,” according to Jonathan Swan and Sara Fischer of Axios. The former president spent $160 million on Facebook ads in 2020, compared with $117 million by Joe Biden
, and submitted a lengthy appeal to the board, arguing that his suspension was unfair. He misses being on social media so much that his team created a weird blog encouraging readers to reshare its posts on services from which he is banned.
The political historian David Runciman closes his book How Democracy Ends with a provocative thought: He argues that Facebook’s drive to maximize profits above other considerations, the way it rewards populist politicians, and its nourishment of conspiracy theories makes “Mark Zuckerberg
a bigger threat to American democracy than Donald Trump
.” The latest ruling does nothing to dispel the idea of Zuckerberg—Facebook’s founder, CEO, and effectively its controlling shareholder—wielding huge, arbitrary power over billions of users. The ostensible reason for Trump’s suspension was, bizarrely, his telling the rioters, “We love you” and “You’re very special” as he urged them to go home. These statements “violated Facebook’s rules prohibiting praise or support of people engaged in violence.” Okay, sure, but that was the red line? Not Trump’s earlier posts urging protesters to converge on Washington, D.C., to “Stop the Steal”? Compared with the pantheon of Trump’s offenses, this is like getting Al Capone for his taxes.
The impression you get from the ruling is that Facebook had no agreed-upon procedures in place to deal with the possibility of a sitting president congratulating rioters who were challenging an election that the same president had told them was rigged. When the sitting president in question was Donald Trump
, this seems like something Facebook might have planned for. But also, in a sane world, why should it have to—and why should the actions of a single corporation matter so much to American democracy? Instead, you imagine a scenario straight out of a James Bond movie: Mark Zuckerberg
nervously sitting in front of a big red button, waiting until the political and commercial pressure became unbearable, then finally zapping Trump’s account.
The oversight board represents a heroic attempt to solve an unsolvable problem: concentrated, unaccountable power. That doesn’t mean it shouldn’t try, and today’s ruling is a welcome attempt to find a constructive way forward. The judgment concludes by urging Facebook to undertake a “comprehensive review” of whether its policies contributed to the narrative of a stolen election, the violence at the Capitol on January 6, and “the design and policy choices that Facebook has made that may enable its platform to be abused.” That is entirely correct. There’s just one tiny problem: If Facebook refuses, there is absolutely nothing the board can do about it.