Facebook’s Oversight Board leaves the final ruling on Trump up to Facebook

Facebook’s Oversight Board announced on Wednesday it would uphold Facebook’s decision to restrict former President Donald Trump from posting on Facebook or Instagram immediately following the Capitol Hill riots, but went on to claim Facebook had violated its own rules by suspending Trump’s account indefinitely. The Board maintains Facebook "did not follow a clear, published procedure," and accused it of seeking to avoid responsibility. For context, the Oversight Board is billed as an independent panel of lawyers, academics, human rights activists, and former political leaders picked and funded by Facebook to adjudicate the company’s content moderation decisions.

Facebook has six months to review the suspension and make a final decision on Trump’s status on the platform. In an interview with Protocol, Oversight Board director Thomas Hughes said Facebook's indefinite suspension was not consistent with international principles of human rights and free expression and claimed that "vague and arbitrary rule" could have a chilling effect on speech. In the end, the Board’s choice to leave the long-term fate of Trump’s account up to Facebook will likely leave both critics and Facebook itself unsatisfied. Facebook will likely have to adjust its own policies to act as the final word on speech within its platform, a duty it was hoping to offload onto the Oversight Board.

The Oversight Board is attempting to make the case for "private governance." Often referred to as Facebook’s Supreme Court, the board is trying to strike a middle ground between self-regulation and direct government intervention. Earlier this year, Oversight Board co-chair Helle Thorning-Schmidt suggested platforms and tech companies outside of the Facebook ecosystem may one day partner with the Oversight Board to adjudicate content decisions for their own platforms. However, Hughes drew some distance from that claim and said the Board’s immediate focus was on Facebook and Instagram, affirming that “there is no objective for the board to become a sort of ‘über-board’ covering all platforms online.''

By punting its most consequential decision back to Facebook, the Oversight Board risks losing its air of legitimacy. A 2020 survey conducted by Gallup and the Knight Foundation found that more than 8 out of 10 US adults said they favored content oversight boards. Further, respondents tended to favor oversight boards above both social media companies and governments for making decisions about what can appear on social platforms. For that reason, however, the Oversight Board’s recent indecision on the Trump case risks deflating its sense of legitimacy in the public eye. Though the Board’s ruling admonishes Facebook, it ultimately leaves the final enforcement decision squarely in the hands of Facebook, which is exactly where the matter stood prior to the Board’s involvement.