This post was co-authored by Will Rinehart and Christopher Koopman
With the Facebook Oversight Board still in its infancy, the Board’s cases and its decisions could be seen by some as inconsequential. But contrary to this belief, the Board’s move to provide a decision on the Trump deplatforming case poses an existential risk of eliminating the Board’s “independence” and credibility.
Central to the Oversight Board’s scope laid out in Article 2 of its Charter is a focus on content. Beyond this clear authority to review content decisions, the enforceability of rulings like Facebook’s deplatforming decisions are left uncharted. It is against this backdrop that cases referred by Facebook itself pose the most difficult questions, especially where Facebook seeks review of action that falls plainly outside the scope of the Board’s Charter.
Comparing the Oversight Board to the Supreme Court, a decisional body thought to have inspired the Oversight Board, reveals the precedential importance of the Board’s next move in the deplatforming case. Within the pages of the Supreme Court’s history, key principles of limited authority guided the Court’s early outgrowth. Following these guiding principles, the Board should be vigilant in respecting the limits of its authority granted in its Charter as it preserves its independence and decision-making authority, especially in cases where Facebook invites the Board to exceed its authority. To that end, the only reasonable move the Board can make to protect its independence is rejecting the Trump deplatforming case.
The Specifics of the Case
The Trump deplatforming case began when Facebook placed a temporary suspension on then-President Trump’s Facebook and Instagram accounts, following the Capitol insurgence on January 6, 2021. The next day, as more account suspensions spread across other social media platforms, Facebook announced its decision to suspend then-President Trump’s accounts indefinitely. On January 21, Facebook referred the Trump deplatforming case to the Oversight Board, who accepted the referral shortly thereafter.
In its announcement, the Oversight Board clarified that it would be issuing a binding determination about the deplatforming decision and policy recommendations for future deplatforming when an account is owned by a political leader. The Board wrote, “The Oversight Board launched in late 2020 to address exactly the sort of highly consequential issues raised by this case.” However, a closer look at the Board’s Charter tells a different story.
The Oversight Board Does Not Have Authority to Review this Case.
The Oversight Board’s Charter does not grant the Board authority to decide on deplatforming decisions. Article 2 of the Board’s Charter, written and agreed to by both Facebook and the Board, explicitly limits the scope of the Board’s decision-making authority to the review of Facebook’s content-related moderation decisions. As written, Article 2 is not a recommendation or formality. It is a mechanism to ensure the Board’s independence and integrity that places a clear limit on the authority the Board can wield over Facebook. The Charter provides,
(1) “instances where people disagree with the outcome of Facebook’s decision and have exhausted appeals, a request for review can be submitted to the board by either the original poster of the content or a person who previously submitted the content to Facebook for review;” and (2) “Facebook can submit requests for review, including additional questions related to the treatment of content beyond whether the content should be allowed or removed completely.” (emphasis added).
Chief among each of these provisions is the emphasis on “content” to justify Board action. Beyond this explicit limitation, the Board has no authority to review non-content-related decisions made by Facebook except to offer recommendations in response to a content-related case.
In the deplatforming case involving former President Donald Trump, Facebook’s referral to the Board is an attempt to game the Board’s review process by exercising its authority to refer a case without also presenting the “content” element required in the Charter. However, the decision to indefinitely prohibit the former President’s access to Facebook and Instagram does not meet any definition of content that would warrant Board review, and Facebook makes no effort to suggest otherwise.
Moving forward with this case and ruling on Facebook’s deplatforming decision would disregard the clear scope of authority granted in the Charter. Worse still, moving forward with this case would erode the Board’s independence by pinning its case selection and decision-making authority to the requests of Facebook.
Providing an Opinion in this Case Ignores the Lessons of Decisional Bodies from the Past.
Although the analogy is imperfect, the Supreme Court’s early years provide a guidebook of principles on preserving and maintaining oversight power. The first principle to be gleaned from the Supreme Court’s history is that setting early limits on authority reinforces power rather than eroding it. Even though Facebook has presented the Oversight Board with the opportunity to expand its authority, the Board should probably decline.
One of the earliest questions of the Supreme Court’s Constitutional authority was presented in Hayburn’s Case in 1792, after Congress passed a law relying on the Courts’ recommendations but allowing the secretary of war to ignore them. In effect, the Court’s recommendations were merely advisory opinions. In a move that shaped the proper role of our Judicial branch for the next 230 years, the Court looked to the limited scope of Article III to hold the law unconstitutional. The Court warned against laws that would be “revised and controuled by the legislature, and by an officer in the executive department. . . [because it is] radically inconsistent with the independence of that judicial power which is vested in the courts.”
A similar outcome was reached in 1793, when then-Secretary of State Thomas Jefferson, who wrote to the Supreme Court, asked the Justices for their opinions on President Washington’s plan to supply arms to warring nations. The Justices declined to exercise extra-judicial decision-making authority. Instead, the Justices wrote to Secretary Jefferson and President Washington to make clear that the “three departments of the government” are “checks upon each other,” with the Supreme Court representing only a “court in the last resort.” Ultimately, the Justices made the intentional choice to defer to the President’s judgment to ‘discern what is right.’”
The second principle the Board should look to was set out in the famous Supreme Court case, Marbury v. Madison. Similar to the messaging at the center of the Oversight Board’s first case selections and decisions, the Supreme Court was highly in tune with public perception of its Constitutional authority when it decided the outcome in Marbury v. Madison.
In that case, the Court ruled in favor of the sitting administration merely because doing so protected the Judiciary’s power to review future actions of the executive and legislative branches. The fear among the Justices at the time was that a ruling to the contrary would result in the Executive branch rejecting the Court’s ruling out-of-hand, demonstrating the Judiciary’s powerlessness to enforce its decisions. However, in the lines of the majority opinion, masterfully written by the legendary Chief Justice Marshall, the Court released the tension while simultaneously establishing clear precedential authority in the Supreme Court that would later go uncontested by both the Executive and Legislative branches. Relying on the precedent set in Marbury v. Madison, the Marshall Court went on to expand the Court’s authority many times over.
Contrary to this narrative, some commentators mistakenly believe that the “Marbury v. Madison moment” was a bold expansion of authority. However, they fail to see the key point that was the lasting genius and legacy of Chief Justice Marshall. By no account was Marbury v. Madison a grand declaration of the Court’s new authority. Instead, consistent with the Court’s reluctance to exceed the scope of its jurisdiction, Marbury v. Madison merely restated the Court’s authority. The Court reserved its power in the face of insurmountable pressure so that it could expand that power when it mattered most.
In the present case, Facebook is asking the Oversight Board to review a decision Facebook made which falls well outside of the bounds of the Board’s scope of authority. If the Board obliges Facebook’s request, it runs the risk of hollowing itself and forfeiting what independent authority it had. This move would be a clear transgression of the principle carefully guarded by the Supreme Court as a method of preserving its power — that questions falling outside the scope of the Court’s authority are non-reviewable.
On the other hand, if the Oversight Board moves forward with this case, choosing to expand its scope in a so-called Marbury v. Madison moment, the Oversight Board risks usurping the Board of Directors. Doing so would rob decisional power from Facebook’s shareholders who have an interest in being represented by Facebook’s Board of Directors — especially in instances where content moderation practices have a substantial impact on business interests.
Rather than wrestling with these existential issues at play in the Trump deplaforming case, the Oversight Board should decline to reach a decision. This case offers the Board its first opportunity to clarify the boundaries of its Charter: to review specific content taken down by Facebook, make determinations about Facebook’s content-specific decision, and offer policy recommendations where applicable. Offering a decision for conduct that is not included in the Board’s Charter erodes the independence and credibility of the Board by positioning the Board as Facebook’s moderation subsidiary rather than Facebook’s Oversight authority.
The Board should follow the example of the early Supreme Court Justices and decline to reach a final determination in this matter. Doing so would ensure that the Board’s precedential foundation remains strong for future decision-making by clearly stating that cases outside of the Charter’s grant of authority are not only inappropriate for Board review, but inconsistent with the goals of independence that make up the Oversight Board.