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Facebook’s Oversight Board upholds Trump ban — but for how long?

The board called on Facebook to further review its decision and return a new decision within six months.

President Trump in front of American flags

Former President Trump was suspended from Facebook following the Jan. 6 riot.

Photo: Brian Blanco/Getty Images

The Facebook Oversight Board voted against reinstating the account of former President Donald Trump Wednesday, upholding Facebook's decision to suspend him in the aftermath of the Jan. 6 riot at the U.S. Capitol.

The board also instructed Facebook, however, to review the decision "to determine and justify a proportionate response and deliver a new decision within six months."

"It was not appropriate for Facebook to impose the indeterminate and standardless penalty of indefinite suspension," the decision reads. "Facebook's normal penalties include removing the violating content, imposing a time-bound period of suspension, or permanently disabling the page and account."

The board said it found that two of Trump's posts on Jan. 6 "severely violated" Facebook's rules. In one post, he expressed his love for the people storming the Capitol, saying they are "very special." In another, he called them "great patriots" and said he would "remember this day forever." Both comments, the board found, violate Facebook's rules against glorification of violence.

"At the time of Mr. Trump's posts, there was a clear, immediate risk of harm and his words of support for those involved in the riots legitimized their violent actions," the board wrote.

But the board chastised Facebook over its decision to issue an "indefinite" suspension, something the board said is not written into Facebook's rules. "In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities," the board wrote, echoing Facebook's critics, who have argued much the same.

In a call with reporters following the announcement, board chair Michael McConnell, who serves as Director of the Constitutional Law Center at Stanford Law School, criticized Facebook for "apparently hoping that the board would do if it had not done."

"We are not cops, ranging over the realm of social media and solving the world's ills," McConnell said. "Our sole job is to hold this extremely powerful corporation, Facebook, accountable for making clear, consistent and transparent decisions, showing neither fear nor favor towards persons of political influence."

McConnell noted that there is a "substantial possibility" that the board is asked to revisit Facebook's decision six months from now.

"As we stated in January, we believe our decision was necessary and right, and we're pleased the board has recognized that the unprecedented circumstances justified the exceptional measure we took." Facebook VP of global affairs and communications Nick Clegg said in a written statement. "We will now consider the board's decision and determine an action that is clear and proportionate. In the meantime, Mr. Trump's accounts remain suspended."

The board in its decision included several recommendations for Facebook, urging more transparency in similar decisions. First, the board suggested, political speech from "highly influential users" should be rapidly escalated to expert, qualified, human content reviewers who are familiar with the language and context of the post. Those staffers should be "insulated from political and economic interference, as well as undue influence," the board suggests.

The board also calls on Facebook to make clear in its written policies how it makes these decisions, how it preserves and shares information, what its strikes and penalties procedures are, and include more information in its regular transparency reporting. Facebook should also "undertake a comprehensive review" of how its very existence and design may have contributed to the spread of electoral fraud misinformation, the board said: "This should be an open reflection on the design and policy choices that Facebook has made that may allow its platform to be abused."

Ultimately, the board emphasized that this decision was never just about Trump, but about all users who find themselves subject to the "ad-hockery" of Facebook's rules, as McConnell put it.

"Anyone who's concerned about Facebook's excessive concentration of power should welcome the Oversight Board clearly telling Facebook that they cannot invent new unwritten rules when it suits them," board chair Helle Thorning-Schmidt, former Danish Prime Minister, told reporters.

Still, the decision does have considerable implications for Trump. Since his sudden ouster from Facebook, Twitter and YouTube, Trump has lost access to arguably his most powerful weapon — social media. While he's still a regular on Fox News and has given high-profile speeches at Republican events, his visibility has waned significantly since leaving office. The board's decision to bar him from the platform, at least for the time being, calls into question the viability of Trump's ambitions to run for president in 2024 and opens the possibility that Facebook may take action against other global strongmen who violate its policies.

While some have dismissed the Oversight Board as a Facebook PR stunt, there's no mistaking the significance a permanent suspension could have on upcoming elections in the U.S. and abroad. If polls are to be believed, Trump is still the favorite to become the Republican nominee four years from now. Facebook, which has tried and failed to prove its political neutrality for most of its existence, could soon be in the position of prohibiting a leading candidate for the American presidency from using the platform, while the rest of the field gets access to Facebook's 3 billion users and hyper-targeted advertising tools. Even if Trump doesn't run, his continued deplatforming could diminish his ability to play kingmaker in Republican politics writ large.

The backlash to the board's decision — or lack thereof — was resounding. "Instead of addressing the core problems in its platform, the company exploited this fragile moment in our society in order to sell us the fiction of this oversight group. Don't buy it. Now, they're kicking the can down the road again," said Media Matters for America president Angelo Carusone.

"Unless Facebook permanently bans Trump immediately, we will be having this same dramatic sideshow in 6 months from now."

The decision to uphold the ban also feeds into the unsubstantiated narrative propagated in circles on the right that Facebook has been biased against conservatives all along. "Facebook's decision to uphold its ban on President Donald Trump is extremely disappointing. It's clear that Mark Zuckerberg views himself as the arbiter of free speech," Republican Sen. Marsha Blackburn said in a statement.

But the board's choice hews closely to guidance from a wide cross-section of law professors, civil rights advocates and even some former Facebook employees who argued against letting Trump return to Facebook in comments submitted to the board. "There no doubt will be close calls under a policy that allows the deplatforming of political leaders in extreme circumstances," read one letter signed by a slew of academics, including Alex Stamos, Facebook's former head of security and current director of the Stanford Internet Observatory. "This was not one of them."

Now, the decision moves back to Facebook to determine whether or not they agree.

This story is developing and will be updated.

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