Facebook Oversight Board Punts on Trump Ban Decision

Ban will remain in place for six months while Facebook reworks policy

Getty Images
May 5, 2021

In a landmark decision, Facebook’s Oversight Board Wednesday upheld a temporary ban on former president Donald Trump but said the social media giant cannot impose an indefinite suspension. Facebook has six months to come up with a policy that will apply to President Trump and other users equally.

In the ruling, the Oversight Board said that by applying a "vague, standardless penalty and then referring this case to the board to resolve, Facebook seeks to avoid its responsibilities." Facebook banned Trump indefinitely on January 7, after the then-president made comments praising rioters at the Capitol.

The independent body's decision will likely frustrate defenders of free speech, who were concerned that banning a major political figure from social media platforms could endanger free expression. The ban on Trump has supercharged conservative criticism of big tech and drawn criticism from world leaders including German chancellor Angela Merkel.

The board did not disclose how members voted. But the decision noted that a minority of board members suggested that banned users who seek reinstatement should "recognize their wrongdoing" and commit to observing rules in the future. The minority suggested that in this case, Trump should be required to stop making "unfounded claims about election fraud" and "withdraw praise and support" for rioters before being restored to Facebook.

The Oversight Board also suggested that speech from public political figures should not receive special protection, explaining that their speech can have a "greater power to cause harm" than the speech of other people. It recommended Facebook hire special content moderators "insulated from political and economic interference" to make snap decisions about speech by influential politicians.

The board also dinged Facebook for inconsistent application of standards. It said Facebook had allowed Trump to post content that violated its "Community Standards" without a clear justification. Although Facebook maintains a "newsworthiness" exception for some otherwise bannable content, it told the board it had not invoked that exception for any Trump content.

Facebook also refused to answer a variety of questions from the board, ranging from how Facebook decides which content to promote to whether politicians had been in touch with Facebook regarding Trump’s suspension.

In an email, Trump called Facebook "a total disgrace" and warned "the Radical Left Lunatics are afraid of the truth." The Trump campaign relied heavily on Facebook for fundraising and outreach in 2016 and 2020, and Facebook’s eventual decision will likely shape a possible 2024 presidential bid.

Facebook publicly recognized the seriousness of its decision to ban Trump. Vice President of Global Affairs Nick Clegg called it "perhaps the most dramatic example of the power of technology in public discourse." The board extended its deadline for a decision after receiving over 9,000 public comments.

In a recent conversation with the Washington Free Beacon, Oversight Board co-chair Michael McConnell stressed the difficulty of writing broad rules on misinformation and political speech. With this decision, the board has passed that responsibility back to Facebook. One board member suggested Facebook could even ask the board to weigh in again at the end of the six-month period.

Facebook has the ability to limit political speech without banning users outright. Notably, the platform can "downrank" content it doesn’t want users to see. In its decision, the board appeared to endorse the use of those tools for regulating speech, saying Facebook must "develop effective mechanisms" to "avoid amplifying" speech that violates its standards.

In recent years, Facebook has responded to criticism that it is bad for democracy by promoting more personal content and limiting the reach of political content. The move has come with more ad content on Facebook-owned platforms like Instagram. Social media theorist Rob Horning describes Facebook as asking to "replace your divisive politics with inclusive consumerism!"

The Oversight Board grew out of a 2018 suggestion by Facebook COO Sheryl Sandberg that the company create a "Supreme Court" to make tough moderation decisions. The board is empowered to make decisions on whether content should be kept on the platform. These rulings are binding on Facebook. In previous rulings, the Oversight Board has tended to rule in favor of free speech, overturning Facebook bans of content in a majority of its cases.

The board has 20 members, although Facebook hopes to double its membership in the near future. The current board members were chosen by Facebook, which has caused some critics to question the board’s true independence.

It remains to be seen whether other social media platforms, like Twitter or Snapchat, will reverse their bans on Trump.

On Tuesday, Trump announced the launch of a new communications platform, although it appears to be more akin to a blog than a social media network. Users can’t share their own content, but they can share the former president’s post to other social media platforms, including Twitter and Facebook.

This piece has been updated to include additional context.