Analysis: Facebook Oversight Board’s Decision Upholding Trump Suspension But Requiring Facebook to Reconsider “Indefinite” Suspension Is Good, But Doesn’t Go Far Enough in Requiring Trump to Abandon Claims of Stolen Election for Platform Restoration

Facebook’s Oversight Board has issued its long-anticipated decision on whether Facebook was correct in removing Trump from the platform given his statements supporting the Capitol insurrection on January 6, 2021. The Board determined that Facebook was correct: “In maintaining an unfounded narrative of electoral fraud and persistent calls to action, Mr. Trump created an environment where a serious risk of violence was possible.” But the Board also found that Facebook’s “indefinite” suspension of Trump was not supported by Facebook’s own rules. It requires Facebook within 6 months to explain what it rules are for indefinite suspension and apply them to Trump. It also suggests more broadly a set of criteria that will protect both freedom of expression and require the platform to take action against threats of political violence by political leaders.

The approach that the Oversight Board took is broadly consistent with the approach I and a group of scholars advocated in this letter we submitted to the Board in the case. The Board properly recognizes that Trump’s statements increased the danger of violence and democratic instability which overcomes the usual heavy thumb on the scale in favor of the rights of free expression on political issues. And, although not addressed in the letter, the Board is surely right that Facebook needs to have transparent and consistently applied standards for when content from influential leaders is to be removed. And it should apply that standard to Trump.

Where the Board fell short is in opining on what those standards should be and when someone suspended from the platform for “creating an environment where a serious risk of violence was possible” should be reinstated. The majority refused to opine on such a standard, but a minority of the Board did. “Facebook should, for example, be satisfied that Mr. Trump has ceased making unfounded claims about election fraud in the manner that justified suspension on January 6.” From the summary of the decision: “A minority of the Board emphasized that Facebook should take steps to prevent the repetition of adverse human rights impacts and ensure that users who seek reinstatement after suspension recognize their wrongdoing and commit to observing the rules in the future.”

This, at a minimum, should be the standard that Facebook applies in the future. Facebook is a private company that can include or exclude content as it sees fit. As a responsible corporate citizen, Facebook, like Twitter, can decide it does not need to give a platform to someone who encouraged violence and who continues to insist, against all reliable evidence, that the election was stolen. Until Trump backs off such claims (and he never will), he should not be reinstated. As we explained in the letter to the Oversight Board:

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.

Let’s be perfectly clear about this: if the Board required Trump’s reinstatement, he’d be writing TODAY about how the fake Arizona “audit” will prove the election was stolen, further undermining confidence in the American electoral process. (Indeed, here’s what Trump just released; it would be on Facebook if allowed.)

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