“So shines a good deed in a weary world,” said Willy Wonka when confronted with an unexpected kindness. The candy master may have had similar words about today’s decision by Facebook’s new 20-person “Oversight Board.” For the time being at least, the silence will continue to reign, and a weary world sighs in palpable relief.
“The Board has upheld Facebook’s decision on January 7, 2021, to restrict then-President Donald Trump’s access to posting content on his Facebook page and Instagram account,” the board said in a much-anticipated statement this morning.
The decision surprised many, given Facebook’s rightward turn under the influence of Joel Kaplan, a former George W. Bush White House official who currently runs the social media giant’s powerful Washington, D.C. office. Time and again during the Trump administration, Facebook scrambled like a frog on a hot plate to rewire its rules in a way that made Trump’s gruesomely unacceptable proclamations palatable to the algorithms that run the site. Color me among the surprised; I would have lost a bet on this one.
“Facebook has constrained its efforts against false and misleading news, adopted a policy explicitly allowing politicians to lie, and even altered its news feed algorithm to neutralize claims that it was biased against conservative publishers,” reports The Washington Post. “And as Trump grew in power, the fear of his wrath pushed Facebook into more deferential behavior toward its growing number of right-leaning users, tilting the balance of news people see on the network, according to the current and former employees.”
Ultimately, Trump ran out of running room on January 6 of this year, when he went wild on Facebook as his supporters smashed their way into the Capitol building in Washington, D.C. The ban was handed down the next day.
The board’s decision seemed to include a not-so-subtle scold aimed directly at Facebook owner Mark Zuckerberg:
However, it was not appropriate for Facebook to impose the indeterminate and standardless penalty of indefinite suspension. Facebook’s normal penalties include removing the violating content, imposing a time-bound period of suspension, or permanently disabling the page and account.
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. 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.
For the Trump camp, at least in the six-month short term, the board’s decision is a bigly expensive deal. Beyond the immediate contact with the public provided by social media platforms, Facebook has been a dual engine for Trump: The spreading of the kind of incendiary propaganda and misinformation that is devoured by his base, combined with a massive fundraising pool.
“And while GOP operatives are gaming out just what it would mean to give back the former president a powerful media bullhorn, the real impact, they say, will be seen in dollar signs,” Politico reported a day before the decision was handed down. “A return to Facebook would open major fundraising spigots that further cement Trump’s hold on the Republican Party, protecting his massive grassroots donor network from potential rivals.”
Perhaps in anticipation of the board’s decision — or maybe just to stick a nyah-nyah-I-don’t-need-you thumb in Facebook’s eye — Trump has launched what he calls a “communications platform” that will be “a place to speak freely and safely.” In fact, it’s just a basic training-wheels blog, and a pretty shabby one at that. Trump is allowed to natter on at any length he wishes; the only way for readers to speak “freely and safely” is by clicking any of the ubiquitous donation buttons. If the thing had come with the ancient AOL login sound, I would not be surprised.
Reaction from the Trump camp was swift. “If you’re surprised by Facebook banning President Trump, you haven’t been paying attention,” whined former White House Chief of Staff Mark Meadows. “It’s just the latest page in the book of big tech coming after conservatives. And they won’t stop. Which means it’s past time to hold them accountable. Break them up.”
The Facebook Board’s decision/non-decision adds another layer of complexity to the debate over free speech in the age of social media and the massive corporations that control them. Trump deserved to be banned for his January 6 comments, which cheered on the violent sacking of the Capitol building that resulted in multiple deaths and injuries. The issues of where to draw that line and who gets to draw it remain unresolved. The board has punted to Zuckerberg, and the possible future of online free speech now sits in his hands. This is an uncomfortable thought, to put it lightly.
The limits of free speech remain among the most complicated issues in American jurisprudence, especially in the technological wonderland of the 21st century. The search for some form of standardized rules and strictures has been ongoing since the founding of the nation.
In 1919, Supreme Court Justice Oliver Wendell Holmes coined the famous free speech metric, “falsely shouting fire in a crowded theater.” For decades, that has served as a simple yardstick for the limits of speech.
As with all issues of speech, however, the matter is not as straightforward as it seems. The case that inspired Holmes’s iconic line, Schneck vs. United States, actually stands as one of the most viciously anti-speech decisions the court has ever handed down. Charles Schneck, a socialist, was charged with violating the 1917 Espionage Act for handing out pamphlets condemning the draft during World War I. Holmes’s “fire,” in short, was an activist protesting a war. This garbage anti-speech standard stood until it was partially overturned by the landmark Brandenberg v. Ohio decision in 1969, some 50 years later and in the middle of yet another war.
Remember this the next time you see that “fire in a crowded theater” line. It sounds entirely straightforward, pithy even, yet its history is one of suppression and militaristic fearmongering. It will serve no use for the social media giants trying to figure out where to draw the line. Fire in a theater, indeed.
Moreover, what we have here in the Facebook Board’s decision is a matter of ethics, and not an actual legal statement. Bluntly, nobody has a “right” to a Facebook account, and free speech laws apply as protections from state and federal actions, not corporate decisions. The board has no inherent legal power, and these questions of legality will remain in place until a court has a flesh-and-blood case it can rule on, which would set the legal precedent going forward.
As corporate titans, politicians, the media and the rest of us wrestle with the concept of free speech in the immediacy of a wired world, Donald Trump will remain mostly muzzled down in Florida for the time being. This is nothing but a stupendous public good, as he has not backed off one inch from his championing of the Capitol attackers and his ruinous lies about a stolen election.
Trump still largely controls the Republican Party, and has a massive civilian following at his back. Were he at the bottom of a well, he would still retain the power to blow up the news cycle if he so chose, and could raise a million dollars an hour while he was at it. The board’s decision changes none of this, and answers no larger questions. It will remain quieter around here, though, and for now that will have to do.