Letter to Facebook’s Oversight Board Supporting Trump Deplatforming As a Necessary Last Resort

New letter I spearheaded from Julia Azari, Associate Professor of Political Science, Marquette University; David Kaye, Clinical Professor of Law, UC Irvine; Jack Lerner, Clinical Professor of Law, UC Irvine; Janai Nelson, Associate Director-Counsel, NAACP-LDF; Cailin O’Connor, Associate Professor of Logic and Philosophy of Science, UC Irvine; Norm Ornstein, Emeritus Scholar, American Enterprise Institute; Bertrall Ross, Chancellor’s Professor of Law, UC Berkeley; Alex Stamos, Director, Stanford Internet Observatory; James Owen Weatherall, Professor of Logic and Philosophy of Science, UC Irvine, and me, as scooped by Politico.

Text of the letter:

Dear Oversight Board:

We write in our individual capacities to offer comments on the indefinite deplatforming of former U.S. President Donald J. Trump from Facebook and Instagram following his remarks during the January 6 insurrection at the U.S. Capitol. This letter also addresses related questions raised in the Board’s call for public comments.

As scholars and leaders who have long studied election laws, democratic theory, the United States Constitution’s First Amendment, American politics, and the rule of law, we believe that removing Donald Trump from Facebook platforms for an indefinite period of time was the correct decision. Removal of a political leader from the platforms should be strongly disfavored, and it should be a last resort given the great benefits of robust political debate and protection for political and election-related speech. But Trump’s actions justified the step of indefinitely deplatforming him. Over many months, Trump consistently undermined public confidence in the fairness of the 2020 U.S. election results based upon false and discredited theories of voter fraud, and he encouraged violent insurrection on January 6, 2021, as Congress engaged in the formal process of counting the electoral college votes and declaring Joe Biden the winner over Trump of the presidential election. Had the platforms granted Trump continued, broad unmediated access, he could have provoked additional violence and potentially further undermined the peaceful transition of power which is essential to a working democracy.

As a private actor governed by U.S. law in the United States, Facebook has the right to include or exclude content as it sees fit, consistent with U.S. law. As a responsible corporate citizen, Facebook should ensure that its fora allow for robust, political debate. It should have general policies of non-discrimination across candidates and political views. The platforms should not be in the business of favoring one candidate or party over another, and instead allow readers and viewers access to a variety of political viewpoints and expressions of political speech. The platforms should be especially wary of removing the speech of political leaders, whose comments are both newsworthy and likely helpful to voters as they decide which candidates and parties to support or oppose.

Thus, platform rules should begin with the strong presumption to include political speech, especially from political leaders, that can inform debate, share information, and allow voters to make decisions consistent with their interests and values. Allowing a platform for political speech generally promotes democratic governance and merits inclusion on the platforms.

The strong presumption in favor of inclusive political speech should be overcome only upon a clear showing that the speech threatens to undermine, rather than support democratic governance. Just as the right to free speech does not justify falsely yelling “Fire!” in a crowded movie theater, political speech which raises a serious and imminent danger of undermining democratic governance should be removed from the platforms and serial offenders, even political leaders, should be deplatformed, at least on a temporary basis. Facebook should have clear rules embodying these principles.

The easiest case justifying removal of posts and potential deplatforming is political speech which calls for political violence against a democratically elected government or against people. Such speech has no place in a democratic discourse, and Facebook has a moral obligation not to spread such speech. Such speech need not rise to the level of calling for imminent lawless action (under the First Amendment Brandenberg standard applicable to government suppression of speech) to merit removal from a private platform like Facebook; instead, speech that consistently justifies or supports violence deserves no amplification over social media. Such posts should be removed whether or not they lead to eventual deplatforming. A repeated pattern of conduct justifies more severe repercussions.

In addition, speech that consistently spreads misinformation about the democratic process—speech about when, where, and how people vote, and speech that makes demonstrably false claims about elections being “stolen,” “rigged,” or “fraudulent”—is similarly dangerous to democratic governance and justifies sanctions from the platforms. Again, repetition of such statements is more blameworthy.

Under these standards, President Trump’s statements and course of conduct culminating on January 6, 2021 justified his deplatforming from social media. Before January 6 the President had made over 400 comments falsely calling the election into question. He encouraged his supporters to come to the Capitol on January 6 for “wild” protests. He gave a speech shared on social media that encouraged his supporters to march to the Capitol and interfere with the vote counting, and in the post that led to his deplatforming, he praised those engaged in insurrection with “love” and repeated false claims of a “fraudulent” and “stolen” election as the violence in the Capitol was ongoing.

Anyone who doubts the risks of such speech need only look at the events of January 6, 2021 in the U.S. Capitol. Not only did such speech lead to the deaths of five people and injuries to countless others, including police officers guarding the Vice President of the United States and Members of Congress; those political leaders came within moments of being kidnapped or killed but for the bravery of law enforcement. Without social media spreading Trump’s statements, it seems extremely unlikely these events would have occurred. The eventual deplatforming of Trump’s accounts helped defuse a dangerous and antidemocratic situation.

There no doubt will be close calls under a policy that allows the deplatforming of political leaders in extreme circumstances. This was not one of them.

Thank you for your consideration.

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