The New Yorker Radio Hour - The Supreme Court of Facebook

Episode Date: February 12, 2021

Facebook is at the center of the hottest controversies over freedom of speech, and its opaque, unaccountable decisions have angered people across the political spectrum. Mark Zuckerberg’s answer to this mess is to outsource: Facebook recently created and endowed a permanent body it calls the Oversight Board—like a Supreme Court whose decisions will be binding for the company. And Facebook immediately referred to the board a crucial question: whether to reinstate Donald Trump on the platform, after he was banned for inciting the January 6th riot at the Capitol. In this collaboration between the New Yorker Radio Hour and Radiolab, the producer Simon Adler explores the creation of the Oversight Board with Kate Klonick, whose reporting appears in The New Yorker. What they learn calls into question whether Zuckerberg’s fundamentally American-style view of free speech can be exported around the world without resulting in sometimes dire consequences.  New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is the New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Hey, Jed, how are you? I'm doing well. How are you? Thanks for doing this. It is very cool to be here in the host chair next to you, David. Should we just do it? Sure. Let's go. Okay, three, two, one. I'm Chad, Abumrad. This is the New Yorker Radio Hour. And I'm David Remnick.

Jad, of course, is the host of Radio Lab, and he's joining me because today's episode is something special. So Radio Lab has been reporting about Facebook for a couple of years now. We've been looking specifically at the rules around what you can post on Facebook and what you can't and how Facebook decides. With that hugely bureaucratic name, wait for it, content moderation. Right, which essentially refers to 15,000-ish content moderators working 24-7, moderating all of the posts coming in from all the different countries around the world, moment by moment, according ideally to one set of rules, which in reality results in a giant mess. A huge mess, but in real life, hugely important, with big global implications.

Think about Donald Trump, if you have to. Facebook kept bending the rules and allowing posts that would be banned because he was a president after all. He was special. But Trump was finally banned by Facebook after he used the platform to incite the riot on January 6th at the Capitol. Now, Republicans tend to see the Facebook ban as some enormous liberal plot to silence Trump. And others say that the Facebook move was way too little and far too late. And so with pressure coming in from both sides, what does Facebook now do with Trump? Is he banned for life because of those past posts or should he be allowed to rejoin?

And who gets to this side? Mark Zuckerberg recently announced that he was going to refer the problem to a new group known as the oversight. board. Again, very technocratic name. But the oversight board of Facebook is less like something you would see in a big corporation and more like a government body. In fact, since they announced it, the nickname of the oversight board is the Supreme Court of Facebook. The Supreme Court of Facebook. Well, Simon Adler from the radio lab team has been reporting on how this is all going to work. And at the same time, at the New Yorker, we just published a big piece by Kate Clonick. and Kate is a law professor and a journalist,

and she had an extraordinary degree of access to the inner workings of Facebook while all this was going on. Hi. Hello, Kate. How are you? Are you rolling on your end? There we go.

Now I am rolling. So this is a Radio Lab, New Yorker Radio Hour mutant hybrid production with Simon Adler from the radio lab team and Kate Clonick of the New Yorker. So a couple months back, I called up Kate Clonick to talk about this shift and this research project she's been working on documenting it.

I want to be done with this project so fucking badly. Just like, yeah. This has been your life. Yeah, it has like a little bit too much so. I'm ready to like, you know, I'm ready to kind of do something different. Kate is a professor of law at St. John's University. She's studied Facebook off and on for years. And she was added again because back in 2018, Mark Zuckerberg, the company's CEO was

considering this strange proposal. Yes, like this crazy project, to solve this crisis about content management. I think you know that I've been kind of inside Facebook for the last couple of year. Kate actually sat down with Mark to talk about all this. She did it over the computer, so you'll hear some clacking of keys.

But anyway, as he told her, I said it much times that I just think that it sounds sustainable over time for one person or even kind of one company's operations to be making so many decisions balancing free expression and safety at the scale. Like, I recognize that this is a huge responsibility. And I'm not going to be here forever. Yeah, I'd like, I plan to be running the company for a while. But one day I'm not going to be running the company. And I think at that point, it would be good to have built up.

a separate set of independent structures that ensure that the values around free expression and balancing these equities can exist. Oh, interesting. Like, I trust me, but I don't necessarily trust the next guy. Right. And so, like, a benevolent dictator, he wants to devolve power away from Facebook and himself. And what he landed on as a model for how to do this. Was a Supreme Court for Facebook. And...

Sorry. What exactly? Like, what? Yeah. So the proposal was pretty simple. It was creating a group of people from all over the world that would basically be this oversight on Facebook and its speech policies. Essentially, think of it as like the Supreme Court of the United States. But instead of overruling lower court's decisions, this Supreme Court of Facebook would be able to overrule Facebook's own decisions.

It's a hard pitch to make, isn't it? Oh, my God. 100%. You can imagine how that went over. Yeah, they're like, wait, what? You want us to do what? That's how I imagine that going. Yeah, but Mark wanted this to happen, and so it happened. It's part of like a larger sense, I think, that he sees Facebook becoming more and more, like, the government isn't even the best term, but like a system of government. I hope over time to use the fact that I have control to basically help. implement some different forms of governance.

Like a long-term legacy that he knows will not make terrible decisions. This seems to be them catching up and being like, yeah. Like if you've got 3 billion users, you're bigger than any company at that point, any country, your rules can be as impactful as any government's laws. And so you really need to start thinking of yourself in a new way. Yeah, I think that's right. Has any company ever done anything like this before? I mean, honestly, there's nothing that even kind of comes close.

And I don't want to be grandiose about this. But there is a sense in which it feels like you're watching. I felt like I was watching an experiment that would, even if it completely and utterly failed, would be remembered and be a lesson for however the world ends up sorting out this problem of online speech. And so once Facebook decided to build this court, they suddenly needed to figure out like, what cases would go to the court? Who would be on it? How would they make these decisions? And it became clear that it's not appropriate to have a single person answer these questions on behalf of society for this institution. This is Brent Harris, who led Facebook's effort to build this board, this court.

And as one of his first decisions, he said, We need to go out and actually listen to a wide array of people about what the problems are and the challenges are that they are finding and ask them, what do they want this to be? What can we create? And so they held dozens of listening sessions all over the world talking to lay people. But the cornerstone of this process was really six global workshops where they invited experts to come and weigh in. Kate was one of 40 or so people that attended the U.S. workshop. It was held in the basement of the Nomad Hotel in downtown Manhattan. And when she walked in...

It was like walking into a technologist's wedding. You come in, every table is decorated with succulents and bottles of Voss water. And an iPad. The iPad is not for you to keep. And in fact, someone joked, one of the Facebook people joked to me, It was like, yeah, we used a couple generations old iPad to make sure no one walked away with any of them. That's spectacular. So you have an iPad.

And ultimately, this moderator came out and tried to get the room's attention. And of course, like, everyone's half listening and most people are on their phones and, like, whatever else. In part because, like, a lot of people in that room were just very skeptical of what Facebook was doing here. I mean, Kate herself remained somewhat skeptical of this court. This is just something Facebook can scapegoat. It's really crappy decisions, too. That was my main skeptical point in all of this. But anyhow, the moderator explained what they were up to

that they brought these experts here to, in essence, design this institution. So what do you think this should be? Like, what does it look like? And some of it was like an answer to question. Some of those things people brought up. Case selection questions. board selection, who picks the board. And I would say a solid third of it was people standing up and holding forth on topics that had nothing to do with why we were there that day.

Less of a question and more of a comment. Exactly. Holy cow. So many of those. Eventually, though, they got to the heart of the matter. Like, how should a global board think about these cases that are right on the edge? What we wanted to do was really put people in the shoes that Facebook is in right now and taking these decisions. So they told them like, hey, you are going to play mock court.

As a group, you're going to have to decide whether a piece of content should stay up on Facebook or come down. And so everyone was asked to open their iPad. So you were asked to like, we're going to go over the first simulation. And what popped up on those iPads was this grainy photo of a little girl running towards the camera. with a speech bubble photoshopped in that read, quote, kill all men. And so the moderator asked, Is that hate speech?

What does that mean? And should that be up on Facebook or not? Leave it up or take it down. And so people started to discuss. People were like, well, this wasn't funny. And someone else was like, Does it matter whether it's funny or not? Back and forth and back and forth.

And even so, like, should men be protected? Like, men are more protected than other groups. Eventually, though, the room pretty much came to an agreement. Kill all men is clearly humor or social commentary. That should be up on Facebook. And it's inappropriate for Facebook to take that down. Like this is a harmless joke, right?

And Facebook should be a place where harmless jokes can get made. Because in this case, the joke only works because men are the power structure. If they weren't, it wouldn't be funny. Yeah, it's punching up. There you go. It's punching up, right. But here's what? where things get interesting.

Because, as we said, they did six of these expert global workshops. Berlin, Singapore, New Delhi, Mexico City, Nairobi. And at each of them, they ran through this kill-all-men scenario. We ran that case across the world. And something that's very, very striking is we got really different viewpoints about, should that be up on Facebook or not. Like, not just at the New York Workshop, but in Berlin, another Western liberal democracy,

and even Singapore, folks supported leaving it up. And, you know, you'd think that folks who'd experienced more authoritarian governments and restrictions on their speech would also be for leaving it up. But it didn't go that way. The sound too bad. Go for it.

But I understand that, like, I understand the, like, of course, like, kill all men. You know, that's the most feminist radical joke that you can make. This is Burhan Taiye. She works for an NGO called Access Now. We defend an expenditure rights of users at risk around the world. And when she was shown this photo at the global workshop in Nairobi, which had attendees from all across the African continent, her thought was... It's very funny.

And, you know, many of them. us that our feminist might have said that once and a, you know, once, twice in our life, right? Where you're just like, you know, could we, yeah, you know, and I, like, I understand that to be a joke. So I'm like, yeah, of course, there should be space for humor. And then I know why satire is so important. But, but, but, what is it? So, you know, it's a, how do I put it? So for me right now, you know, it's funny, but, you know, humor is a luxury. And we're not, we're not, We're not, none of us are laughing right now. So, yes, we've seen content like that.

It's unfortunately quite prevalent. And, you know, we've lived through it. So it's not something that we joke about, right? What is she, what events in the world is she thinking of when she says that? Well, some very recent history. And so we're going to take a little bit of a detour here. To understand why Burhan would want that Kill Omen joke take it down. And along the way, we're going to see close up, really, the life and death decisions this global court will have to make.

We'll get to that right after a quick break. Producer Simon Adler, he's been covering Facebook's newly created oversight board, which will address some of the most difficult questions about what can and can't be posted on the world's largest social media platform. This is the New Yorker Radio Hour, and we'll be back with. with this special collaboration with Radio Lab in just a moment. This is the New Yorker Radio Hour. I'm Chad Aboumrod, normally of Radio Lab. And I'm David Remnick,

and we're doing this special presentation with Radio Lab about the Supreme Court of Facebook. That's not its official name. It's officially called the Oversight Board, but it's supposed to function just like a Supreme Court. A body that would make decisions on what can and cannot be posted rules that even the CEO of Facebook, even Mark Zuckerberg can overrule.

So we've got a story on this in The New Yorker from a journalist named Kate Klonick. And producer Simon Adler on the radio lab side has been reporting on the Supreme Court as well. So to rejoin that piece, we met a moment ago a digital rights activist named Burhan Taiye. She attended one of the workshops Facebook held in the process of creating the oversight board.

And she was opposed to leaving up a comedian's goofy photo caption that read Kill All Men. Tai A is a feminist. She gets the joke. So why does it need to come down? What was she thinking? Yeah, well, I mean, it comes down to what's been going on in her home country.

This absurdity in Ethiopia right now. Ethiopia. There's a lot of animosity between different, you know, groups, a lot of tension. And looking at just the past four or five years there, you see how these questions of who's, punching up and who's punching down can get flipped on their head with the click of a mouse. So to set things up, Ethiopia sits right on the horn of Africa. It's the second most populous country on the continent. And for a long time, it was considered one of the world's leading

jailers of journalists. Politically, the country used to be very authoritarian, very repressive. This is online activist turned academic and Alc Chala. Assistant professor at Hamlin University. And yes, I can say that me and some of my colleagues were like the first people logging to the Ethiopian public. He was actually forced into exile because of this activism. And the way he tells it, late 2015. The worst unrest in a decade. The demonstration started as a small-scale student protest.

Student protests break out. And they start spreading across the country. Thousands took to Ethiopia streets over the weekend. And watching this on Friday. fold from the United States, Dr. Chala noticed that at the center of these protests was this guy Jawar Muhammad. Jowar himself is a very tech-savvy guy. He's articulated in English. Descenting voice are allowed. There is going to be sufficient pressure on the government to break

its will. And, you know, he had about 1.4 million followers on Facebook. Making him as powerful as just about any news organization in Ethiopia. Now, a couple quick things about Jawar. Number one, he is from the Aromo ethnicity, the largest ethnic group in the country. And we'll get more into that in a moment. But first, the other notable thing about Jawar is that at the time that these protests were getting underway, he was actually living in Minnesota. He was in exile there, thousands of miles away from the action.

But as these protests intensified, including clashes with the government... They die! Two people are killed in clashes with the police. They die to liberate their people. He was able to galvanize folks and direct things because of Facebook. Whether you live in America, Canada or Kenya or Kenya, you have the obligation to take up. The arms of these young men. So that, sort of amazingly, when these protests succeeded...

Haile Mariam de Selen has resigned amid deadly anti-government protest there. He was lionized as, well, a hero. One who'd helped usher in a new prime minister... Ethiopia has a new leader. Abiy Ahmed. Abiy Ahmed, 160%. And a new era in Ethiopia. Since coming to power, Prime Minister Abiy Ahmed was engaged in listening to what people of the country have to say.

For the first time in our entire maybe 3,000 years of history. Again, Burhan Taye. We actually thought we could be a cohesive united country. The government freed thousands of political prisoners and journalists. The latest of sweeping measures. Invited those in exile. To come back home. Even ended a decades-long conflict with neighboring Eric.

A promise delivered. I mean, these changes were so profound that Ethiopia's new prime minister, Abiyah Ahmed, thanks in no small part to Jowar Muhammad, went on to win. The Nobel Committee has decided to award the Nobel Peace Prize to Ethiopian Prime Minister, Abiyah Ahmed Ali. That's right, the Nobel Peace Prize. So what you've got here is really the promise

of Facebook realized, right? Like, man from thousands of miles away leverages Facebook's power to bring down an authoritarian government and elevate a peace-loving leader. I mean, this is David and Goliath level shit. And as part of all of these reforms... I will be traveling back to the country. We have now established our office in Aghaga.

Jawar Muhammad returned to Ethiopia and was welcomed with open arms. However, while Abi Ahmed's reform ambitions have increased his popularity, analysts fear that ethnic rival race in Ethiopia will undermine his reforms. The very forces that brought this change about began pulling in the opposite direction. Yes, the first violence that happened was in 2018. The first, it was gruesome pictures circulating on Facebook, along with different anti-ethnic minority sentiment.

What were the ethnic tensions and what was being said? Yeah, so how complicated to get, or how in the weeds to get here. Get complicated. Well, okay. So as I mentioned, Jawar is part of the Aromo ethnicity, the largest ethnicity in the country. And well, the Aromo are the largest. They've also long felt politically and culturally marginalized. And this feeling of marginalization, this resentment,

this was really at the heart of the revolutionary protests that Jawar had helped lead. Jowar, I'm just curious, are you a Romo first or Ethiopian first? I am on a Romo first. I mean, many of his posts pointed directly at it. He would say how Romo were oppressed and how Romos were marginalized, and that is absolutely okay with me, because there is some historical truth to it.

But he's a guy who heat up the temperature, ramp up some emotions. As I said, we are forced to fight back, to coalesce together, to come together and fight back. But now, even with the old government out of power and a new Aromo prime minister in power, Jawar Muhammad did not let up. He kept stoking this resentment. To be honest with you,

I think there is a risk of not civil war, but catastrophic communal violence across the country. I think people have to be very careful from that one. And with this inversion of power, statements he was making during the protest sounded very different in 2018. Like even just the line, this is our land, this is our homeland,

went from being about Ethiopians getting a corrupt government out of power to Romo's getting minorities out of their territory. And quickly, the language began to escalate. He will ramp up with, like, protect your land. Minorities, they are aliens. They are going to loot you.

You know, they are evil. Until eventually. October 2019. The riots began on the 23rd of October 2019 and lasted for several days. A mob took to the streets, burnt cars, and killed several people

they thought were their opponents. 86 people died across the country. What caused this horrific outbreak of violence? The Facebook post by opposition leader Jawar Muhammad. One evening from his home in Addis Ababa, Jouar Muhammad, posted an unsupported claim. Insuminating that he is going to be killed by minorities.

In his post, he called on his supporters for help. In response, some of his followers called for war. And while Jawar denies that he was intentionally inciting violence, hate flooded onto Facebook. Content calling for the killing of all minority groups. Again, Burhan Tai. Content actually telling people, like, if your neighbor is from a different ethnic group, go and kill them.

Literally, that was what we were seeing. And then everyone started to take things on their own hand and kill minorities. Everything that could go wrong went wrong. Minorities were brutally murdered, like brutally, brutal, brutal, gruesome violence. Minority communities being brutally targeted by the Oromo, the country's large. ethnic group. When they tried to cut my granddaughter's breast, I took out mine and I begged them to cut mine instead. Then they stopped.

But they took her father instead. And since then, the government just has not been able to get back to any sort of peace. At least five people were shot dead by police on Monday. At least, the fatal shooting of her shal-luck. And so every couple weeks, there's just another outbreak of this sort of violence. Facebook brought this change, this political change. And that is for me. I'm sorry for my fridge.

But that is what happened. And so, back in Nairobi, in an air-conditioned conference room where this Supreme Court of Facebook training session was underway, As Burhan was sitting there, staring down at this iPad with a photo on it that says, kill all men. She's like, yeah, this has to come down. You know, I'm not an easy space to even give space to having a conversation about content, governance, and moderation when it's about humor.

And Burhan was not alone in this. Many people felt that as an incitement to violence. That could result in actual harm. Again, Facebook's Brent Harris. And that is something that should not be on Facebook. And so I think around 4 p.m. To be honest with, I left. She walked out of the session.

Because I was just like, no, this does not address the issues that we're talking about today. Damn, what do we do? Because it really is a we. What do we do if the very thing that people in New York, in an ironic way, say, must stay up, is the various thing that makes her walk out because it's just utterly privileged and completely ignorant of the real-life consequences of hate speech.

That's wow. And keep in mind, these are just mock trials, training sessions, really. Like, they ran into this as they were trying to answer how to answer these sorts of questions. And now,

we will get to some of their actual rulings and the Supreme Court itself. Yes. But first, like, I think that the tension we're seeing here goes deeper than this one example. I mean, at the core of Facebook is this very American understanding of freedom of expression. And you hear this even in the way Facebook executives just talk about the company. You know, more people being able to share their experiences, that's how we make progress together. You know, how many times has Mark Zuckerberg said some version of this?

Most progress in our lives actually comes from individuals having more of a voice. But when you talk to people from different parts of the world, like, there's not universal agreement on this. I will definitely tell you that I found myself, oh my goodness, I was not as liberal as I taught. Again, Professor Endalc Chala. In Ethiopia, Facebook came and overwhelmed us with information. We didn't have a well-established factory-taking system. We didn't have journalism institutions. We Ethiopia have only imported Facebook.

We haven't imported the rest of the institutions and democratic foundations, the economic security around which such untrammeled freedom of expression is beneficial. And so Wales 10 years ago, 8 years ago. I saw that freedom of expression and technology will help us liberate us and get us out of authoritarian system. Now, I have seen people will get angry and they will take matters on their own hand. So it's about like a choice between coexistence or saying whatever you want to say. And as I have seen the violence that those speech has made, I think I would prefer coexistence.

And so the approach Facebook is taking to try and reconcile these global differences is this Supreme Court. after those global workshops, they took all that feedback and created this independent structure. It's going to have 40 members. It currently has 19. The members represent every continent other than Antarctica, and they're from just a wide array of backgrounds. Some are lawyers, others are free speech scholars, activists, journalists, even a former Prime Minister of Denmark. and among the first decisions they're going to have to make is whether or not former President Trump will be banned from the platform indefinitely. Facebook has currently banned him,

but it will be up to the board to rule on whether that ban should remain or be lifted. And, I mean, this decision won't just impact Trump. It could very well have implications for how Facebook will deal with, political figures, not just in the United States, but in places like Ethiopia. Hello, hello. Hey, Simon.

Myna, very nice to meet you virtually here. What are you doing? I'm good. How are you, sir? All right. And while making the right decisions for the entire planet seems in many ways impossible, when I sat down and talked to several members of this court, of this board, I have to say they did make me a little bit hopeful. Thanks so much for being willing to do this.

I hope we can have a little bit of fun here today. I hope so. Yes, I think we should make as much controversy as possible. Oh, wow. Okay. This is Mynakiye. He's a member of the board, former special rapporteur to the United Nations. And he's basically spent his entire life fighting for human rights.

I haven't used Facebook or Twitter myself. Really? I'm old school. I try to keep my private life private. Why the hell were you chosen to be on? the oversight board of a product that you don't even use. Why? Yeah.

Because all kinds of people are being chosen for it. I mean, that's the beauty of it, isn't it? We have all kinds of people on the board, all kinds. And that he sees the solution here in the incremental progress we've made in the past. You know, look, I see this work as human rights work. I mean, I have gone through in my life through different things around hate speech, using radio, first of all, in Rwanda, then in Kenya as well. So the tools and the problems is basically the same.

The differences that media, mainstream media, before social media, has been regulated over time, decades and years that then informed and guided, how the information is put out. He said, just look at the five-second delay that live television runs on now. I'm sure when it started with live television and live radio, it was on the go. So I think that's the questions we have to now deal with on Facebook. But I think, I mean, I have confidence that there is enough experience in the world that's dealt with these phenomena.

And this feeling resonates with most of the people I spoke to at Facebook. I mean, I spent about 15 years working on climate before I came to Facebook. And I think the issues here are deeply analogous. Again, Brent Harris. They are human generated. There are major regulatory actions that are needed. There's a serious responsibility by industry to step up and think about with a, responsibility that they hold. And the solutions that will come forward as we start to figure out

how to address these types of challenges will inherently be incremental. And at times I worry we will kill off incremental good progress that start to address these issues because they don't solve everything. You know, is the Paris Agreement enough? No. Is it a lot better than what we had before? Yes. Is the Montreal Protocol enough? No. Is it a a substantial step forward against this challenge. Yes. And building this board is only one step in a wide array of many other steps that need to be taken on. It sounds to me the way you're saying is this is the first piece in this global governance body Facebook is imagining. Well, if it really works and people end up believing in it and thinking it's a step forward, then further steps can be

taken. There are nothing that's ever perfect. They're always going to be a issues. People will criticize the specific people who are on it. They'll criticize the process. And I mean, when Kate Klonick, who turned us on to this story to begin with, when she interviewed Mark Zuckerberg, he said as much. It's not like the oversight board is the end. It is one institution that needs to get built as part of the eventual community governance

that I think we will end up having 10 years from now or however long it takes to build all this out, it just felt like a kind of a good concrete step that we could go take. And what they're thinking of in terms of next steps. One would be something like regional circuits or, you know, a level of adjudication that are more regional or more localized that sits below this board as a means of taking these decisions. You mean like seven continental courts or, I don't know, 52 sub-regional courts that feed up to the one Supreme Court.

Yeah, that's right. And so what we're watching Spring Up here is not just a solution to what is truly one of the problems of our moment, but also this wholly new way to organize ourselves and sort of adjudicate our behavior. Look, look, what we're trying to do is an experiment.

I cannot tell you it will work. but I can tell you we'll try to make it work as much as possible. And will we make mistakes, Simon? Absolutely. I have got no doubt in my mind that being the humans we are, not yet evolved into saints and angels, we will make mistakes. That's part of the process.

The Oversight Board started officially hearing cases in October. They've already ruled on matters ranging from whether nude photos advocating breast cancer awareness should stand to whether a policy. host about churches in Azerbaijan constitutes hate speech. The board will render their decision on President Trump in the next few months. That story was produced and reported by Simon Adler, with original music by Simon. And our episode is a collaboration between the New Yorker and Radio Lab.

Head over to RadioLab.org for more or look forward in your podcast app. We've got more to come on the question of whether Donald Trump will be allowed back on Facebook, our reporter Kate Klonick joins me in a moment. This is the New Yorker Radio Hour. Stick around. Welcome back to the New Yorker Radio Hour. I'm David Remnick. Now, we've been talking this hour

about the Supreme Court of Facebook, a nickname for the body known as the Oversight Board. Facebook created this oversight board to rule on some of the most controversial issues on its platform, and its rulings are supposed to be binding on the company. Their biggest case so far, is about whether Donald Trump should remain banned indefinitely from Facebook

after his posts leading up to the Capitol riot. Kate Klonick is an assistant professor of law at St. John's University, and Kate was given an unusual degree of access to the company during the creation of Facebook's oversight board. And her reporting is at New Yorker.com. Kate, welcome. Thank you for having me. I'm delighted to be talking to you.

How eager is the oversight board to take on the Trump question? I think that the Oversight Board sees this Trump question as something that they absolutely have to weigh in on. Just its mere existence put the question to the board that if they didn't take this Trump case and it didn't come to them, what were they there for? And if they did take it, you know, everyone is potentially going to be upset with them anyways, but they had to at least say something. And so I think that people on the board are very excited about the potential to really weigh in and set the tone of, of exactly how impactful the board can be. And this is the most idealized case, like the platonic ideal of a case,

to make that case for the board. So Alexei Navalny, who's the Russian opposition leader, now in jail, he was critical of Facebook's ban on Trump, and Angela Merkel in Germany called it problematic. It's not a simple question, and the voices being raised on one side or another are not entirely predictable. How do you think this will go?

Personally, and this is not based on conversations with the board, but just on reading their decisions from their first couple of cases, I think that they're very free speech centered. And I think that they're very concerned about proportionality of punishment. And so I think there's a very high likelihood that they reinstate Trump's account eventually, maybe under certain conditions, or they kind of give examples of ways in which the account should be limited or should be on a watch list or something to that extent. I have no idea how creative they're going to get with their policy recommendations. But I think that the idea of a permanent ban of a world leader is something that even the Trump hating freedom expression experts that I've talked to about this makes all of them nervous for a democratically elected leader, even if he's inciting violence. Now, you discovered in your reporting something pretty astonishing, and that's that Trump called Mark Zuckerberg personally about the Oversight Board last. May. Why did Trump do that? What did he want? So that call took place after Facebook had announced

who the board members were going to be. And one of the people that was on that list, and she's since left the board, but she was initially one of the founding members, was Pamela Carlin, who's a Stanford law professor, and who had testified passionately at Trump's first impeachment hearing against Trump. And he was very upset. And I think that there was a sense that was growing at the time, and he saw it with his executive order a few weeks later, was that he was getting ready to strike on this anti-conservative bias that he and his administration and people in his campaign were pinning on big tech. Now, you have the Trump problem, but on the other hand, you also have a much more amorphous problem. And that's one of misinformation. Just the giant,

slurry of conspiracy theory and misinformation that's propagated on Facebook and you can see its effect on the way we think, the way we read, the way our politics are conducted. What can Facebook do about this and what should it do? I think misinformation is a great, great topic to send to the board. I think that what you're seeing is the gatekeeping function that journalism provided for so long is in place for journalism, but that does a lot. It's in place for journalism, but that does a lot. necessarily mean that's in place for user-generated content that people are posting on sites. And at the scale that people are posting, you're simply not going to be able to do that kind of fact-checking in a meaningful way. As I'm sure, like you know, as years of fact-checking, that facts are not quite as black and white as people make them out to be.

And so I think that the board is going to start weighing in more significantly and flagging this as an issue and that maybe that will have a public education role. There's definitely subtleties, and there are all kinds of ways to argue fact. But I think we can agree that there really is no such thing as a Jewish space laser that ignites forest fires from out of space or all the other theories that we've heard taking hold even in the halls of Congress. Will Facebook just say, well, you know, fact is a funny thing, throw up its hands, and not adjudicate any of this? Well, it's so interesting. Let's use the Jewish Space Laser because I think that this is kind of an amazing example. I just want you to know that I have one at home. I really tell people that.

So one of the things that you'll hear a lot when you do content moderation for any significant amount of time is that you have to understand things in context. What would it look like to decide that you were going to ban Jewish Space Laser? Are you going to ban that phrase? Are you going to set up an automated process that takes down every post that people use the term Jewish Space Laser? What happens then if people want to be creative and make a short play that they post on Facebook that involves the Jewish Space Laser? Mel Brooks already did it. Right, exactly. And so what I'm trying to say is like this is part of the context and intentionality that you is completely lost when you just have.

words or thoughts or photos or videos going from one person straight out into the world without any type of curation, you are going to have misunderstanding. It's going to be very hard to decide when someone is intentionally trying to spread misinformation and harm other people versus when someone is mocking that someone is trying to harm other people. Totally understood, but you also don't want to throw up your hands. I mean, Facebook says that it's not a publisher. Isn't there a fair amount of hubris, though, to the idea that Facebook can create an international mechanism for adjudicating free speech disputes? Is this just a kind of cosmetic thing? Oh, I don't think it's a fair amount of hubris. I think that it's actually, it only would strike

one as hubris if you were in denial about how many decisions they're already making. And so that it's already making around these types of things without any transparency or any accountability or any thoughtfulness on behalf of people who use its platform. And so I think that, of course, there's a chance that it ends up being a cosmetic thing. In fact, there were a couple of scenarios about a year ago about what I thought that this was going to be, that I was running through my head. And one of them was that it just dies when it first launches. Never hears anything.

Its decisions are simple and short. and it's not a serious thinker and it doesn't tell us anything about freedom of expression or anything else. But I think that there is, you know, there's that phrase that, you know, when you start an institution, it's 20% the documents and the founding document. It's 80% the people, as you can kind of see from the list of people. Nobel laureates, the former prime minister of Denmark, UN officials, directors of human rights organizations. law professors. And I think that they have picked people who are just incredibly serious and have very big reputations, and they are not willing to put their reputations in play here for something that is going to be half-assed. I don't know if I can say it. What are the stakes in this

for the economic future of Facebook for the bottom line of Mark Zuckerberg? Yeah. So this is an interesting question, and it's a little counterintuitive, because I think that it's a mistake. to think of this delegation of power, this kind of decision to hand over part of the keys of the kingdom to another outside body as a bad business decision. I think it's actually a very smart business decision because I think it takes a giant pile of controversy and headache and everything else and says, you know, if this is really a hard decision, just like the Trump decision, we're going to give this to this body of international experts that are going to kind of weigh in and tell us what to think, and then we'll follow their directive,

and it's no longer just us sitting in Menlo Park. Kate Klonick, her work on Facebook's oversight board can be found at new yorker.com. That's our program for today. Thanks for joining us and be well. See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Arts,

with additional music by Alexis Quadrato. This episode was produced by Alex Barron, Emily Boutin, Ave Carrillo, Riannon Corby, Calalia, David Krasnow, Gauphin and Putubuele, Louis Mitchell, Michelle Moses, and Stephen Valentino, with help from Alison McAdam, Meng Faye Chen, and Emily Mann. Our collaboration with radio lab happened with help from Susie Lechtenberg, Soren Wheeler, Dylan Keefe, Sarah Sandbach, and the whole team from Radio Lab. The New Yorker Radio Hour is supported in part by the Cherie Reuters. Endowment Fund.