The Daily - A Major Ruling From Facebook’s ‘Supreme Court’

Episode Date: May 6, 2021

Was Facebook right to indefinitely bar former President Donald J. Trump from the platform after the Capitol riot?The company’s oversight board, which rules on some of the thorniest speech decisions on the platform, decided that, while the ban was justified at the time, the parameters of the suspension needed to be defined.What does the ruling tell us about Facebook’s “Supreme Court.”Guest: Cecilia Kang, a reporter covering technology and regulatory policy for The New York Times.Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: Facebook’s company-appointed panel ruled that Facebook should reassess the barring of Mr. Trump and make a final decision in six months.Lawmakers, both Republican and Democrat, have criticized the board’s decision.Here are some central facts to know about the oversight board.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. In the biggest ruling since its creation, Facebook's oversight board found that the company had no basis for indefinitely banning Donald Trump from the platform. I spoke with my colleague, technology reporter Cecilia Kang, about what that tells us about Facebook's Supreme Court.

It's Thursday, May 6th. Sasega, tell me about this oversight board that Facebook created and what it's designed to do. The Facebook oversight board was created about a year ago. The Facebook Oversight Board was created about a year ago, and it was an idea that Facebook's CEO, Mark Zuckerberg, had been kicking around for much longer. My goal here is to create a governance structure around the content in the community that reflects more what people in the community want. He talked about it in 2018 on the Vox podcast, The Ezra Klein Show. You can imagine even some sort of structure, almost like a Supreme Court or appeals board, that is made up of independent folks who don't work for Facebook, who ultimately get to make the final judgment call on what should be acceptable speech in a community.

And he described it as sort of a Supreme Court that would be an adjudicating body that makes decisions on the hardest and the thorniest and the most controversial speech decisions that Facebook made. And if we do that well, then I think that that could really break ground on governance for this kind of an internet community. And when you say speech decisions, you mean just the gnarliest, most contentious posts that get on Facebook and that people say shouldn't be there or that their posters shouldn't be allowed to post. Yes, and they make hundreds of these tough decisions every day with three billion users. These are decisions about political figures. These are decisions about neo-Nazis that take place every day on the website. And the sheer volume that Facebook

confronts of this kind of content is, for the company, overwhelming. And Zuckerberg has said that it's too much for one company and any set of individuals within a company and himself even to have to be the arbiter of these kinds of decisions. Got it. So this board is going to relieve the company in theory of this obligation to sort out the most difficult questions that it faces about what can be on its platform? That's the idea. The idea is that a user and Facebook itself can appeal decisions or refer decisions that are much too controversial or just too hard.

So a user, for example, who may have had a post taken down or their account suspended can go to this oversight board and appeal the right to get their content reinstated. So the idea is for Facebook to lessen its grip over the power it has on speech over its platform. And so what kind of person ends up being appointed to this panel, the Supreme Court of Facebook, which I must say sounds like a pretty prestigious job. So far, there have been 20 members appointed to the Facebook Oversight Board. And the 20 members are journalists, former politicians, including the former prime minister of Denmark, and human rights activists. They are international. They represent several countries. And it should be

noted that Facebook constructed this board, and they helped choose the several countries. And it should be noted that Facebook constructed this board and they helped choose the first members. And they had a say in the other following members who were chosen. They fund the board with a $130 million trust. The whole idea is to have this outside body, this third party court, if you will, be at arm's length from Facebook. So that description would seem to immediately raise questions about just how independent this oversight board really is. So how does the board talk about that? How does Facebook talk about that?

Yeah, the independence of the board has really haunted the company since its establishment a year ago. And they point to a few things. They say, number one, that once the board takes a case, there is zero communication between board members and the company. So there's a wall that's erected, essentially. Gotcha. Number two, they say that all decisions are binding. And what that means is that once the board decides on a case, that Facebook must implement its decision. And the third is they say that there is a trust that was established, a trust that pays the board members and that pays for the operations of the board and all of its employees. the board and all of its employees. And the reason why they point to that is they say that there is no financial commingling between the company and the board, that there is an outside body that

administers all the money that's paid to the employees of the board. So in other words, Mark Zuckerberg can't technically write the checks for the board members and that there is not influence potentially financially because the board is being paid by a third body, not Facebook. And once this quasi-independent board is set up, what kinds of rulings has it issued so far? Well, it's only issued a handful of rulings so far. The first came out starting in January. They all have to do with posts that Facebook took down because the post violated the company's own rules on speech. And they ran the gamut, really, from an Instagram post in Brazil that showed a photo of breast nipples. showed a photo of breast nipples.

And in that case, the board decided that Facebook was wrong to take down that post because the photo was meant to promote breast cancer awareness. In another case, a user quoted a Nazi propagandist, and Facebook took down that post saying that the post and the quote violated the company's rules against hate speech. But the Facebook Oversight Board overturned that decision and said that the user, in fact, had intended to use that quote, that Nazi propaganda quote, to compare Trump's own comments and speech to Nazi propaganda. And they said that it was not in violation, nor was it intended to be in violation of the company's hate speech rules. So in the vast majority of the decisions, the board has really erred more on the side of free expression

and has overruled the company's initial decisions. And in fact, that has been in some ways the best proof of its independence. So the way the board has proven its independence from Facebook is by directly contravening Facebook's original decision in almost all these cases to take down a post. Yeah, that's right. Though we should keep in mind that there really have only been a handful of decisions

made so far by the Facebook Oversight Board. And those decisions are really small compared to the big case that the Oversight Board agreed to take on four months ago, which was the indefinite ban of President Trump. And so what was the decision before the board on this case, Trump versus Facebook? So the decision before the board was whether Facebook was justified in its decision on January 7th to indefinitely ban Trump from Facebook and Instagram. And we have to remember that on Facebook, Trump had 35 million followers and on Instagram he had 24 million.

And on January 6th, on Facebook and Instagram, Trump said that the Capitol rioters were great patriots and that the election was stolen from us. Facebook said that his comments incited violence and violated their own internal rules on speech. And what the board was wrestling with was whether that decision was justified. Right. So it doesn't get much bigger than this. The board is being asked to rule whether a former commander-in-chief of the United States, the president of the country, can be permanently barred from ever posting anything on any Facebook site. It was a defining and the biggest decision that Facebook had before it. And it is incredibly important because Trump is banned permanently from Twitter and YouTube has indefinitely banned Trump, but has not said when they will allow him back on. So the decision by

the Facebook oversight board presented the first opportunity for Trump to regain one of those megaphones. And for the board, it is their Super Bowl of decisions, a board that's just a few months in effect. And this is the big one. And so how does the board go about making this kind of a decision? The board deliberated this particular case just like it does every other case before it. It chose five members to look specifically at the Trump case. And they looked at the particulars of what Trump said in his post and if Facebook was justified in taking those posts down as well as banning the president's account at the time. And those members, those five

members, went through 9,000 comments that were submitted from the public. Wow. There were public comments submitted that reflect anger that the company took down the site, as well as warnings that the company should not let Trump back on. One commenter said, power corrupts and absolute power corrupts absolutely. If you permanently block Trump for just being Trump, you've gone even further down the power corrupts absolutely. If you permanently block Trump for just being Trump, you've gone even further down the power corrupts rabbit hole with other mega rich oligarchs who are exercising their power muscles to show us who really runs America. On the other side, however, people were very

strongly in favor of keeping Trump's account down. One commenter said, Donald Trump is a toxic garbage person who peddles lies and conspiracy theories and hate. Facebook was right to ban him. So this board waded through 9,000 of those comments. That's right. Okay, so when do you get word that there's actually a ruling? I'm guessing this might or might not at all resemble what it's like when the Supreme Court alerts journalists that a decision is coming. You know, actually, it felt a lot like that, Michael.

In fact, the board gave 48 hours to the media to prepare for the announcement of their decision. They made their decision days before, and they actually had told Facebook about their decision, but this was all kept under lock and key. And unlike most news related to Facebook, there were no leaks on this. So on Wednesday morning, I woke up really going into the announcement blind. And at 9am, I opened up my email, and there's the decision and a note that the board is going

to get on the phone and explain their ruling. We'll be right back. Welcome to the webinar. Please stand by. The webinar will begin shortly. Please remain on the line. So, Cecilia, tell us about this call. The broadcast is now starting. All attendees are in listen-only mode. So we get on the phone, and members of the board are there, and they launch right into it. Thank you all for attending this morning. Our decision this morning is relatively simple and straightforward. And we hear from one of the co-chairs, Michael McConnell,

who is a constitutional law professor at Stanford Law School. First, we agree that Facebook had sufficient justification to remove Mr. Trump's January 6th posts for violation of the policy against praising or encouraging violent actors. He said, first, Facebook had sufficient justification to suspend Mr. Trump's account, at least for the duration of what the Department of Homeland Security called a, quote, heightened risk of violence. However, McConnell then said. improper, that is to say, in violation of Facebook's own rules, as well as generally accepted principles of freedom of expression, for Facebook to make that suspension indefinite. He said Facebook's own policies do not authorize an indefinite suspension. But users and their audiences must not be left in a state of uncertainty

as to time or reasons for restoration. So they're saying, in essence, Facebook, you were right to ban the president and to take down those posts on January 7th because there was an imminent threat of harm. Things were really heated during that time and the president was violating your own rules. But they said, Facebook, you were wrong in imposing an indefinite ban without any criteria or any guidelines on when or if there could be an end to this indefinite ban. Facebook must make its decision and be held accountable for whatever it decides. Ultimately, it is the public that will be the judge. That is as it should be in a democratic society.

So what Facebook's equivalent of a Supreme Court has said here is that an indefinite ban of the former president violates Facebook's own rules and the kind of corporate spirit of Facebook as a social media platform. And so what does the board then say Facebook is supposed to do with this objection to an indefinite ban? So the board effectively kicks the decision back to Facebook. The board says, you have six months to decide on your own whether you want to ban Trump permanently or not. We shouldn't do this. And one thing that really stuck out to me, Michael, is they said, in applying a vague, standardless penalty and then referring this case to the board to resolve,

Facebook seeks to avoid its responsibilities. So Facebook sends a decision to the oversight board on January 21st. The oversight board on May 5th sends it back to Facebook effectively. I suddenly feel like I'm talking to our colleague Adam Liptak about the Supreme Court. The Supreme Court was given a case from the Ninth Circuit. It didn't like the decision, so it kicked it back to the Ninth Circuit. But that's effectively what happened here, which is that Facebook's Supreme Court is kicking a case back down to a lower court, in this case to Facebook itself, and saying, you didn't do this correctly, and it's your problem to figure out how to do it correctly. Yes, and this may take a lot longer for a final decision as it weaves through these different decision-making processes. I want to linger for just a minute on the board's thinking

about why a permanent ban is inappropriate. It sounds like it's basing it, to keep going down this Supreme Court metaphor, on the kind of Facebook constitution, on Facebook's own rules. But I think on a practical level, there are plenty of people who would look at what former President Trump did on January 6th and say that's the ultimate reason to permanently ban someone from a social media platform. They helped incite a riot at the United States Capitol. media platform, they helped incite a riot at the United States Capitol.

Yeah, I was really struck by how the board's decision and their reasoning on a permanent ban was sort of procedural in the same way that you see that a lot with court rulings, like real court rulings in real life, where they really wanted to adhere to the letter of the law and the law in this case being Facebook's own laws. So it's this weird sort of parallel world, Michael, where a private company forms a oversight board, this third party that is trying to adjudicate these speech decisions according to laws created by a private company. It's all very similar and the parallels are striking to what court systems are like within the U.S. and around the world. So because this ruling seems to be based on technical language from the company rather than a giant principle of free speech, what implications does this ruling have? Does it

have any implications for free speech by government leaders like a Donald Trump? I think world leaders were hoping for clear guidance on what would kick them off of a site like Facebook. They wanted the Oversight Board's decision to clarify what has for a long time been a lot of ad hoc decision-making when it came to politicians and what politicians say on Facebook. But they didn't get that. And in fact, what they got was the board sending the decision back to

Facebook, which some world leaders have said is the problem to begin with. Angela Merkel of Germany had said after Facebook's ban of Trump on January 7th, that this points to really the power of a few big internet platforms over speech entirely. And it shows that these companies have too much power. And so by sending this decision back to Facebook, it again puts the power making and the decision making in the hands of the company that many political leaders feel are too powerful as gatekeepers of speech to begin with. Right. So a person like Angela Merkel would have been reassured to know that a quasi-independent board was going to be making a decision like this, saying, this is what will get you kicked off Facebook. But when the board decided not to really make that decision and to send it back to the company, it was reinforcing the idea that these enormously consequential

decisions about what can or can't be and who can or can't be on a platform like Facebook are ultimately going to be made by one or two people like Mark Zuckerberg. That's right, Michael. Essentially, Facebook is back to the drawing board and making its own decisions on Donald Trump. Instead of the Supreme Court of Facebook, which was the whole idea of creating a Supreme Court of Facebook. Yes, that's right. So do you think Mark Zuckerberg even likes this decision? I mean, if I'm the leader of Facebook, I would very much, I think, have hoped that this outside board would make this decision for me.

That's what he said all along, that he doesn't believe that he or Facebook should be making such consequential decisions. But ultimately, Facebook will still be confronted with the decision on what to do with Trump, which has been a problem for the company throughout the former president's tenure and continues to do so even with the president out of office. And what was former President Trump's response to this decision? Do we know? About two hours after the Oversight Board's decision, Trump issued a statement, and that statement landed in my inbox of my email. And in that statement, he said a lot of the predictable and usual things he says about social media, which is that it's run by radical leftists and that these companies are too

powerful. And he continues to deny the election results and the process. And as I was reading Trump's statement and the board's decision, I was thinking that the board was essentially saying, I think that there should at least be the possibility that Trump comes back onto the platform. The question, however, is how and under what circumstances? Because as we can see, Trump is still doing all the things that got him banned from social media, just on different platforms this time. So Facebook will be faced again with these same kinds of questions, and will need to solve those questions for itself.

Right. Not this board. Indeed. Thank you, Cecilia. We appreciate it. Thanks so much for having me. We'll be right back. Here's what else you need to know today. On Wednesday, the Biden administration said that it favored waiving patent protections for COVID-19 vaccines, a potential breakthrough in the global effort to speed up vaccinations. Suspending patent rights would allow companies in smaller countries to cheaply manufacture the vaccines by using the recipes developed by companies like Pfizer, Moderna, and Johnson & Johnson. But the move is opposed by the U.S. pharmaceutical industry,

which argues that giving away patent rights destroys the incentive for companies like Pfizer to invest in life-saving vaccines in the future. And the fate of the number three House Republican, Representative Liz Cheney of Wyoming, appeared to be in doubt on Wednesday as fellow Republican leaders, including Representatives Kevin McCarthy and Steve Scalise, moved to oust her for showing insufficient loyalty to former President Trump. Cheney, who voted to impeach Trump after the January 6th riot, survived a previous vote to oust her a few months ago, but has upset House Republicans anew

by continuing to call out Trump's lies about election fraud. Today's episode was produced by Eric Krupke, Nina Potok, and Austin Mitchell. It was edited by MJ Davis-Lynn and Lisa Chow, and engineered by Chris Wood. That's it for The Daily. I'm Michael Bavaro. See you tomorrow.