Facebook's independent Oversight Board on Wednesday is expected to announce its biggest decision yet: whether to uphold or reverse Facebook's indefinite ban on former President Donald Trump.
The decision to ban Trump from both Facebook and Instagram, which the company owns, came after the Jan. 6 attack on the U.S. Capitol. But it was precipitated by the months that Trump spent on social media both amplifying disinformation and casting doubt on his loss in the presidential election in violation of Facebook's rules.
"We believe the risks of allowing the President to continue to use our service during this period are simply too great," Facebook CEO Mark Zuckerberg wrote at the time.
"We believe we took the right decision. We think it was entirely justified by the unprecedented circumstances on that day," the company's vice president for global affairs and communications, Nick Clegg, later told NPR.
And yet both Zuckerberg and Clegg have expressed concerns about any one company having so much power over online speech — especially when it comes to whether or not an elected leader can reach the social network's billions of users — which is why Facebook has asked the board to weigh in.
Facebook created the Oversight Board a year ago to make final calls on the most difficult decisions the social network makes about what users can post. Each case is decided by five members of the 20-person board. They consider Facebook's rules and international human rights principles and seek out the views of outside experts and members of the public.
In the Trump case, the board received more than 9,000 public comments. The final decision must be approved by a majority of the full board, and Facebook has agreed to abide by its ruling.
The Trump case is the biggest test so far of the board's legitimacy: whether it's seen as independent from the company that created and funds it, or whether it's seen as a cover to let Facebook duck responsibility.
The decision is also expected to set a precedent for how Facebook will treat the accounts of other world leaders and politicians. And it could be a model for other tech platforms grappling with the question of control over free speech.
"We know that they care a lot about international human rights law, and we know that they care a lot about freedom of expression," says Kate Klonick, an assistant professor of law at St. John's University, of the Oversight Board members. "But we don't know how that's going to impact when you have special circumstances like the one that they're dealing with in the Trump case."
Klonick is an expert in internet law and the author of a recent New Yorker article about the making of the Facebook Oversight Board. In an interview that aired Tuesday on NPR's Morning Edition, she said it's hard to know if the board will simply vote up or down to reinstate Trump, or whether it will consider letting him back on the site with some sort of restrictions. But either way, Klonick says, it will be "setting the tone here for what they're going to do going forward — how much power they're going to have."
The independent Oversight Board, this was created through this $130 million investment from Facebook. Who's on the board? How much weight do the board's decisions carry?
The board is comprised right now of 20 people. They are a wide range of experts in freedom of expression and international human rights. And they're everyone from [the] former prime minister of Denmark to the former editor-in-chief of The Guardian to a Nobel Peace Prize winner to former circuit court judges. So it's a really kind of blue-ribbon panel.
So the board has so far reviewed only a handful of cases, overturning four of five Facebook decisions. What do those decisions tell you about the board's potential ruling in a Trump case, if anything?
Yeah, that's a great question. It's pretty much the only thing that we have to go on as to what the decision is going to be [Wednesday] in Trump's suspension. So far, we know that the board cares a lot about what we call in the law proportionality — the proportion of kind of the underlying offense to the punishment that they're going to have from Facebook, from censorship. And we know that they care a lot about international human rights law, and we know that they care a lot about freedom of expression. But we don't know how that's going to impact when you have special circumstances like the one that they're dealing with in the Trump case.
Is the choice just to reinstate or keep the ban? Or does the board have leeway to choose letting Trump back on Facebook, but with some kind of restrictions?
Yeah, that's a really interesting question. And we have no idea. I know it's a very unsatisfying answer, but basically the board is setting the tone here for what they're going to do going forward — how much power they're going to have, how much power they're not going to have, whether they're even going to be constrained by how the question was posed to them with Facebook. And Facebook just spent one $130 million and a year and a half, two years, constructing this board to deal with questions like this independently and reliably and with transparency. And so if they don't pay attention to what the board has to say, it's going to be a very difficult position that they're going to be in.
How might Wednesday's decision create some kind of precedent that other social media platforms would follow?
Yeah, I think that's going to be the most interesting thing, honestly, because you have Twitter, who has decided also to take Trump off the platform, and [Twitter CEO] Jack Dorsey saying that it's going to be a permanent suspension. You have Facebook with their indefinite suspension, and then sending it to the board. But Twitter obviously doesn't have something like the Oversight Board. They've gone a different way. They're working on Birdwatch and other types of ... modifications to their platform to deal with the content moderation problem. And it'll be really interesting to see if Twitter decides to use this as basically a differentiation from Facebook in the marketplace and to basically make a pitch like, "We won't let him back on our platform," or "We will let him back on our platform. We're not going to be like Facebook."
You have spent a lot of time investigating Facebook and the Oversight Board. What's your gut tell you on the decision?
I think that if they decide to go with what I think everyone's expecting, which is an up-or-down decision, they're going to reinstate him. But if they decide to go a little bit bigger, I think this could be a very important procedural case from a legal perspective and one that sets a longer-term tone.
Editor's note: Facebook is among NPR's financial supporters.