Oversight Board achieving what government cannot

The Oversight Board upheld former President Donald Trump’s suspension from Facebook and Instagram on Wednesday, and social media are better for it.

While much of the news cycle and often fact-averse pundits and lawmakers will focus on the board’s decision not to immediately reinstate Trump, the bigger development is the review board, which continues to mature into a body that has the power to do something no other entity can, tell a social media firm what to do. 

In Trump’s case, the board upheld his suspension, but demanded Facebook reassess its decision and gave the company six months to revise and clarify its policies. In other words, the board demanded Facebook write clearer rules and follow them. No government entity could make that happen. 

For more than a decade, as social media firms have gained increasing power over the ideas and people Americans encounter, regulators have been halted at almost every turn in efforts to rein in the often-damaging byproducts of the companies’ services.

For every reconnection with an old friend or constructive conversation about an important issue that takes place on social media, there are dozens of false, dangerous and radicalizing messages posted on these spaces. The Capitol riot, for example, was planned on and performed for social media. The riot, which took place on Jan. 6, can be seen as the outcome of the toxicity of social media spaces.

The First Amendment halts the government from forcing social media companies to take down content. It also makes it unconstitutional to force social media firms to leave content and speakers on their spaces, even when it violates their community guidelines. Lawmakers in Florida and Texas haven’t gotten the memo on this one, since they’ve proposed laws that do exactly this, but the case law is clear and once millions of taxpayer dollars are spent defending these obviously unconstitutional laws, they will be struck down. 

The Oversight Board circumvents First Amendment concerns because it is appointed by the industry, in this case Facebook, and the firm voluntarily follows its rulings. Board members should always favor free expression but, at the same time, are not bound to what have become often dogmatic formulas regarding First Amendment precedent. Thus, in the board’s first major ruling Wednesday, it chastised the firm’s process and very likely left an opening for Trump to return to the space.

Regardless of the outcome in Trump’s case, the board has done what lawmakers cannot do. It made a binding decision that Facebook must follow. 

The board presents a potential model for how our information environment can be cleaned up without violating foundational freedoms.

It’s already taken an important step, establishing it has the power to make a binding decision. When the board was announced in 2018, many were skeptical it would have any power. It is, after all, appointed by Facebook, a company that has a long track record of saying one thing and doing another.

Now that we’ve established the board has power, it must be expanded to cover the entire social media ecosystem. As it stands, its jurisdiction includes only Facebook. If other social media firms agreed to follow the board’s content decisions, it would create a powerful form of industry self-regulation and preempt the need for laws, ill-advised or not, that seek to regulate the firms.

The board, which started its work in 2020 and made its first decisions in January, has already done much of the work needed to help regulate the entire industry. It has established a charter and created an appeals process. The board includes a diverse collection of scholars, policy-makers and nonprofit leaders. 

The Trump ruling, while the board did not overturn Facebook’s decision, reinforces the review board model as a functional tool for creating a legitimate, non-governmental way to regulate social media. 

The board started laying this foundation with its first decisions earlier this year, when it overturned Facebook’s moderation decisions in four of its initial five cases, seeming to support a wide-open space for discussion, rather than a protected, moderated one. 

Expanding the board concept to other social media firms would reinforce its legitimacy. The next step must be buy-in from other social media firms. Google, which owns YouTube, and Twitter should willingly put themselves under the Oversight Board’s guidance. Facebook should create a process that would allow these firms to take part in deciding who joins the board.

If done correctly, the Oversight Board model might provide the long-needed structure for tamping down on toxic, dangerous, and harmful expression without offending core First Amendment values.

Jared Schroeder is an associate professor of journalism at Southern Methodist University, where he specializes in the First Amendment and emerging technology. He is the author of “The Press Clause and Digital Technology’s Fourth Wave.”