The US supreme court is defined by Marbury vs Madison, an 1803 case in which the court ruled that it had the power to strike down laws. It was a pivotal moment for the court, less than 15 years old – and one the oversight board clearly had in mind as it made its own pivotal ruling, turning a simple yes/no question about the US president into a firm demand for the independence of a nascent legal institution. Here are five takeaways from the weighty ruling.
Donald Trump was never actually banned from Facebook – but he’s still not back
The key point of fact in the entire case is that, although everyone has spent four months describing Trump’s removal from the platform as a “ban”, it wasn’t. He was instead “indefinitely suspended”, and the oversight board was supposed to rule on whether that suspension should be permanent.
In the short term, the board has made one clear choice, ruling that Trump should indeed stay off the platform for the foreseeable future. But in the long term, the board says, that “indefinite suspension” needs to be resolved into a ban, or lifted entirely – and it isn’t the body that’s supposed to do it.
Facebook’s rules matter
The oversight board was presented with a binary choice: should it uphold the suspension of Trump from Facebook, or should it overturn it, and force the social network to reinstate the former president to its platform.
It picked a third option: refuse to make the choice. Rather than accepting, or rejecting, the suspension, the oversight board referred the decision back to Facebook. Its rationale is well-argued: Facebook doesn’t have anything in its rulebook about “indefinite suspensions”, and so it clearly has not applied its rules to Trump at all.
So, the board has told Facebook it needs to make the decision again, but properly. If Trump has broken Facebook’s rules, then Facebook needs to declare which rules he has broken, and apply the penalties that are written into its guidelines. That may be a ban, it may be a temporary suspension or it may simply be deletion of the offending posts. But it cannot make up special rules for Donald Trump.
The board wants Facebook to know who’s in charge
The oversight board was created to take the responsibility for controversial decisions out of Facebook’s hands. The company went to admirable lengths to create an independent body, but may now be regretting doing so. This isn’t the first time the board has asserted its independence: twice now, it has ruled on cases which Facebook attempted to render moot.
In the first, the company restored a post from a woman with breast cancer after her case was taken up by the board; in the second, it restored a post alleging hate speech against Sikhs after it was taken up by the board. In both cases, the board’s response was firm: Facebook cannot prevent the board from criticising it simply by guessing what its answer would be and pre-emptively doing it anyway.
This time, the board has taken a similar posture of independence in the opposite direction. Facebook, it says in its ruling, cannot demand that the board make decisions against its will. It can refer cases to the board, but if the board decides that the company needs to do more, it will simply refuse to act.
Heads of state should be held to greater standards, not lesser ones
“Heads of state and other high officials of government can have a greater power to cause harm than other people,” the board says. The social network can have exceptions for “newsworthiness”, but they need to be clearly explained. And while powerful political players can be given special treatment when it comes to moderation, ensuring that only “specialised staff who are familiar with the linguistic and political context” make calls on their posts, ultimately they must follow the same rules as everyone else.
Mark Zuckerberg is going to have a bad week
The entire point of the oversight board was to insulate Facebook from the consequences of its power – and the entire point of that was to insulate Mark Zuckerberg from the consequences of his power. By creating the board, Zuckerberg ensured that the most controversial calls would be out of his hands, allowing him to wield sole control over the most important communications network in the world without taking sides on questions of what should be on that network.
Now, for a second time, Zuckerberg will find himself chairing a meeting to decide whether or not to ban Donald Trump from Facebook. For a second time, half of America will never forget his decision, whichever choice he makes. And for a second time, he runs the risk of whatever choice being overturned down the line by the independent body he set up to overrule him.