The Trump Decision Shows Facebook Can’t Hide Behind Its Fake Court

Back in May 2019, Mark Zuckerberg thought he had cracked it.

Facing increasing calls to censor voices like Donald Trump while simultaneously being accused of shadow-banning conservative voices, Zuckerberg decided to punt.

“Maybe there are some calls that just aren’t good for the company to make by itself,” Zuckerberg told Kate Klonick, an assistant professor of law at St. John's University, at a secret meeting of lawyers, academics, and media experts in New York to discuss the establishment of the Oversight Board.

But on Wednesday, Zuckerberg’s carefully laid plans came crumbling down.

Not only did the Oversight Board fail to make a decision in its highest-profile case to date—whether former President Donald Trump should be permanently banned—but it punted the decision straight back to the desk of the Facebook CEO. 

The Oversight Board has been criticized from all sides for being an overly self-important, quasi-independent arm of one of the most powerful companies in the world. Facebook has tried to say the board is not Facebook's "Supreme Court," but in form and function it is very similar to a court, with a group of unelected experts issuing quasi-legal decrees with docket numbers and legal-ish reasoning for its decisions that cite its inscrutable and completely invented charter. For a company that’s spent the last few years halfheartedly arguing that it needs to be regulated, the Oversight Board looks very much like an effort to preempt actual regulation by showing it is effectively regulating itself with a kangaroo court.

While the Board agreed that Trump’s posts on Jan. 6 increased the risk of violence and his account should have been suspended, it said Facebook was wrong to make the ban indefinite. 

So instead, it sent the decision about banning Trump permanently back to Zuckerberg.

“The Board insists that Facebook review this matter to determine and justify a proportionate response that is consistent with the rules that are applied to other users of its platform,” the board’s report says. “Facebook must complete its review of this matter within six months of the date of this decision. The Board also made policy recommendations for Facebook to implement in developing clear, necessary, and proportionate policies that promote public safety and respect freedom of expression.”

The board says that Facebook simply did not consider its own rules sufficiently, and in a call with reporters following the announcement, Helle Thorning-Schmidt, co-chair of the board, went even further: “We are saying that Facebook can’t just invent unwritten rules.”

Michael McConnell, another co-chair of the board, said he expects Facebook to take its time, and that coming to a decision about Trump should be a “deliberative process, it should not be a rushed and hurried decision. It ought to be one made up fully on the basis of all the considerations and evidence.”

But this is exactly what Zuckerberg was hoping the Oversight Board would do for him. In a brief statement after the decision was announced, Nick Clegg, Facebook’s head of global affairs, said the company “will now consider the board’s decision and determine an action that is clear and proportionate.”

But McConnell admitted that it was “a substantial possibility” that the Oversight Board will be back looking at Facebook’s decision again in six months time.

Facebook is among the most powerful companies in the world today, with an unprecedented reach to almost all corners of the earth. Despite this continued rapid growth, Zuckerberg has maintained an iron grip on the company, thanks to Facebook’s “dual class” share structure. 

As a result, Zuckerberg basically has veto power to override any shareholder proposal, something he has done on multiple occasions.

Given his almost complete power over everything Facebook does, it means the buck stops with him when the shit hits the fan. And in recent years, there’s been a lot of that.

And so, Zuckerberg decided that rather than divest power, he would create the Oversight Board.

Four months after that private meeting in New York, the Oversight Board was announced with a pledge of $130 million in funding to pay for the 20 experts who would populate the board. 

From the beginning, the group has faced strong criticism.

Many criticized the fact it took the group took over 14 months to convene its first meeting—which it blamed on the COVID-19 pandemic and a lack of laptops. The delay meant the board was not in a position to deal with any election-related issues, and critics contended the board was nothing more than a smokescreen, a PR stunt by Facebook to deflect criticism of its ongoing failures to police its platforms.

And Wednesday’s decision will only fuel more criticism.

“This decision does nothing to root out the deep, systemic content issues plaguing Facebook,” a spokesperson for the activist group called the Real Facebook Oversight Board, said in an emailed statement, adding that “the Facebook Oversight Board has been touted as Facebook’s “Supreme Court,” and a grand experiment in online content moderation. This muddled ruling, however, reveals the Oversight Board as an empty suit.”

The content moderation issues that Facebook is dealing with are serious and have real impacts on people. And yet it's hard to read the Facebook Oversight Board's decisions and not feel that this is both very serious and very dumb. The Oversight Board's true purpose is to give Zuckerberg and Facebook a group to hide behind when it makes controversial decisions, and to use thousands of words of Facebook-specific legalese to avoid taking responsibility for difficult decisions and to avoid having to explain them in basic English. In that sense, the Oversight Board is a complete abdication of Facebook's responsibility to make decisions, explain them clearly, and stand behind them.

Others note that the outsize attention to the Trump decision overshadows the thousands of other decisions made every day about content issues on Facebook.

“Facebook is desperately hoping we’ll all pay attention to its shiny Oversight Board and ignore the real issue: Content moderation on Facebook is totally broken. It’s mostly done not by this Board but in digital sweatshops, and they don’t want to spend the money to fix it,” Cori Crider, the director of Foxglove, a U.K.-based group that advocates for moderators, told VICE News. 

Facebook’s “Supreme Court” has been operating for just over six months and its shortcomings are already exposed, both to critics of Facebook and now, to Zuckerberg himself.