Facebook asks its new Supreme Court to rule on banning Trump

Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer

More than three years after the idea was first floated by Mark Zuckerberg, Facebook’s chief executive, the company’s arms-length “Oversight Board” finally started hearing its first cases last month, a selection that some found underwhelming for a body that has been in development for so long. Whatever their merits, those cases have all been overshadowed by Thursday’s announcement that Facebook has asked its version of the Supreme Court to rule on whether the company was right to ban president Donald Trump from the platform. That ban came on January 7, a day after a mob stormed the Capitol building, following a rally in which Trump argued that the election was stolen from him. “We believe the risks of allowing the President to continue to use our service during this period are simply too great,” Zuckerberg wrote. “We are extending the block we have placed on his Facebook and Instagram accounts indefinitely and for at least the next two weeks until the peaceful transition of power is complete.”

In announcing that the Oversight Board would review this decision, Facebook made it clear that it still believes banning Trump’s account permanently was the right move, but said that if the board disagrees, then the company will reverse the ban. “We believe our decision was necessary and right,” wrote Nick Clegg, the former British deputy prime minister who is now Facebook’s vice-president of global communications. However, Clegg added that, “given its significance, we think it is important for the board to review it and reach an independent judgment on whether it should be upheld.” While the company waits for the board’s decision, Clegg said that Trump’s account will remain suspended. As outlined in the documents that govern the Oversight Board, the former president is entitled to submit a response arguing why the ban on his account is unreasonable and/or should be overturned. Some have argued that what Facebook really wants is for the board to order it to reinstate Trump, so that it can deflect responsibility for getting him back on the platform, where he drives a lot of engagement, which in turn translates into revenue for Facebook.

The Oversight Board is a controversial entity — not surprising, given that nothing like it really exists anywhere, and the fact that Facebook’s decisions on content affect not only the former president but billions of users around the world. In his blog post about the Trump decision, Clegg said that the board is “an independent body and its decisions are binding — they can’t be overruled by CEO Mark Zuckerberg or anyone else at Facebook.” This is true to a certain extent: i.e, it’s what the charter and the other official documents that created the board say, that it is supposed to be an independent body, that Facebook can’t overrule its decisions, etc. (unless doing so would be a breach of the law in any of the countries or jurisdictions where the company operates). Facebook does provide the board’s funding, however. And the charter isn’t a legally binding document, which means Facebook could choose to ignore its ruling, although it would obviously suffer some loss of trust if it were to do that.

Another critical view of the Oversight Board is that it is a kind of elaborate Potemkin village designed to distract people — including regulators — from the company’s virtual monopoly on social networking, and how it controls speech on its platform. This particular two-dimensional village is very well appointed, in that the board is filled with respected academics, judges, and others who have impeccable pedigrees, such as former Guardian editor Alan Rusbridger. And the charter makes it sound as though the board will have a significant amount of power over what Facebook does. But the details are less inspiring: for example, the board can hear cases about things that were taken down or blocked, but it can’t currently hear cases about content that stayed up but should have been removed. And it can’t deal with any cases that have to do with Facebook Messenger, or Instagram, or WhatsApp. These and other limitations led some critics — including former Facebook investor Roger MacNamee and Rappler founder Maria Ressa — to create what they call The Real Oversight Board, to review the decisions made by the, er… real Oversight Board.

Whether the board is a fig leaf designed to obscure or distract from Facebook’s other content decisions, or a way of deflecting responsibility for a decision it has already made but doesn’t want to be criticized for, it is still going to be interesting to see how the new Supreme Court of Facebook handles the case. And it will also be interesting to see what the board says on the second thing Facebook asked it to consider: in addition to Trump’s ban, the company asked the board for “any observations or recommendations around suspensions when the user is a political leader.” This is a particularly contentious topic, since as Jillian York of the Electronic Frontier Foundation has pointed out, the company has banned generals from Myanmar and politicians from Turkey in the past without saying much about why those decisions were made. At least the Oversight Board might add some transparency to the process.

Here’s more on the platforms and speech:

The process: Steven Levy explains in Wired how the Oversight Board will proceed in the Trump case: “Facebook had the option of asking the board to make an expedited decision for a quick turnaround, but considering the gravity of the case, it chose to allow the board to take its usual 90 days to process the case. (Of course, it could issue its judgement sooner.) One of the four co-chairs of the 20-person board will assign the case to a panel, which typically consists of five people (one must be in the North American region), and they will consider whether, as a major political player, Trump will be welcomed back.”

Ripple effects: Harvard Law lecturer and SJD candidate Evelyn Douek, who has been studying the Oversight Board since it was first announced, writes on the Lawfare blog that the Facebook decision could have global ripple effects “for politicians in other countries who have overseen or incited violence, but whose social media accounts remain alive and well.” Right now, she says, there’s “an apparent inconsistency in how Facebook treated Trump’s account as opposed to how it treats accounts of other leaders: Philippine President Rodrigo Duterte, for example, is still on Facebook.”

Must carry: Jeff Jarvis, a journalism professor at City University of New York (whose school has accepted donations from Facebook in the past) wrote that he is afraid Facebook reconsidering its decision might encourage governments that want to restrict the platforms’ ability to choose what content they carry. “I do not want a society in which a government can outlaw the ability of platforms to choose what they do and do not carry,” says Jarvis, noting that Poland and some other countries are considering laws that do exactly that. “Compelled speech is not free speech!” he adds.

Twitter’s ban: Following the Capitol riot, Twitter initially chose to block Trump’s account for just 12 hours until he deleted some tweets following the Capitol riot that it said had the potential to incite violence, but when he repeated some of the claims, the company decided to ban his account permanently. The company said accounts belonging to politicians are given leeway to bend some of the rules because “the people have a right to hold power to account in the open,” but they are not above any repercussions. Jack Dorsey, Twitter’s chief executive, said he was troubled by the decision to ban Trump, which he said could be “destructive to the noble purpose and ideals of the open internet. A company making a business decision to moderate itself is different from a government removing access, yet can feel much the same.”

Other notable stories:

Google has announced a deal to pay French news publishers for access to their content, more than a decade after news outlets in that country first started trying to get the search giant to pay them. France recently enacted a law that forces aggregators to pay for even small excerpts from published content, a local version of a new EU copyright law. The company says it will pay publishers who meet a variety of tests based on the size of their news operation, their coverage, and whether they belong to a French media association. And the search company will also include content from these publishers in its recently announced News Showcase. Meanwhile, Google has threatened to remove its search engine from Australia if a new law forces it to pay media companies for their content, something it also tried in France.

The first press conference of the Biden era was “so normal that you could be forgiven for thinking that you had mistakenly put on an old episode of ‘The West Wing.'” writes Washington Post media columnist Margaret Sullivan. But this return to norms, as comforting as it might seem, is also potentially dangerous if it encourages reporters to fall into old bad habits like false equivalency, she says. Sullivan writes that she hopes reporters will “think twice before they put a reality-denying senator like Ted Cruz or Josh Hawley on the air to promote false claims about election fraud simply because they feel they need to ‘balance’ all the (truthful) Democratic voices.”

For the first time ever, fewer than half of all Americans have trust in traditional media, according to data from Edelman’s annual Trust Barometer ranking, as reported by Axios. The public-relations company’s survey found that fifty-six percent of Americans agreed with the statement that “journalists and reporters are purposely trying to mislead people by saying things they know are false or gross exaggerations.” Fifty-eight percent of those surveyed think that “most news organizations are more concerned with supporting an ideology or political position than with informing the public.”

Between the hours of 6 AM on Thursday and 6 AM this morning, the union representing New Yorker magazine staff was on strike, refusing to participate in the production or the promotion of material for either the print magazine or the website. “We are withholding our labor to demand fair wages and a transparent, equitable salary structure,” the union said in a statement. After two years of negotiations that included a proposed salary floor of $65,000 a year, the union says the magazine came back with an “egregious response” that included a salary floor of just $45,000.

Robert Baird writes for CJR about Laurene Powell Jobs and her Emerson Collective investment vehicle, which controls The Atlantic and Pop Up magazines, both of which have seen staff reductions and cutbacks, despite the fact that Jobs is a billionaire. “It’s not hard, especially in cold theory, to appreciate the difference between a nonprofit and for-profit enterprise. At the same time, it seems fair to ask the gut-level question that news like the Atlantic layoffs and the Pop Up separation inevitably prompts: What’s the point of having a billionaire owner if they insist on enforcing financial discipline even in the midst of a global catastrophe?

Michael Peck, the chief executive of the United States Agency for Global Media, which controls Voice of America and a number of other government-owned outlets, resigned yesterday after being informed by the Biden Administration that he was going to be removed. Biden designated Kelu Chao, a longtime USAGM journalist, as acting chief executive, and Brian Conniff, the former president of Middle East Broadcasting, as deputy director. Robert Reilly has also been removed as director of Voice of America, and Yolanda López, who was recently demoted, has been named as acting director. The deputy director of Voice of America was relieved of her duties.

The Financial Times writes about the efforts by local newspapers like the Hartford Courant — the oldest continuously published newspaper in the United States — to find local owners who can take control of the publication and get it away from Tribune Publishing, which is being pressured to cut costs by a large hedge fund called Alden Global Capital. The fund’s modus operandi is “get rid of the newsroom and sell the real estate, helping recoup the purchase price of the newspaper, then go through every line item in the paper’s expense sheet and cut. Lay-offs are typical. The result? ‘Ghost’ papers unable to produce much in the way of original local journalism.”

Penske Media announced Thursday that Bonnie Fuller, founder of Hollywood Life magazine, has bought out Penske’s stake after more than a decade of being partnered with the company, and has assumed full ownership of the magazine and all its operations. Fuller is a former editor of Us Weekly and Marie Claire, and replaced Helen Gurley Brown as editor-in-chief of Cosmopolitan magazine in 1996.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s