Instead of making a call as to whether Donald J. Trump should be permanently banned from Facebook and Instagram, Facebook’s Oversight Board has decided that Facebook should review the situation and make its own decision within six months.
The ruling states that Facebook was right to block Trump’s ability to post on his Facebook and Instagram accounts following the Jan. 6, 2021 insurrection at the U.S. Capitol by Trump supporters, but wrong to implement an "indefinite" suspension, because that did not follow its own rules.
“We are not cops, reigning over the realm of social media," declared Thomas Hughes, director of Oversight Board Administration, during an online press conference announcing the ruling on Wednesday morning.
“Our sole job is to hold Facebook responsible for making clear decisions” and applying the same rules and standards to all, Hughes said. "Facebook did not meet these standards,” he added. “Facebook must make its decision and be held accountable for whatever that decision is.”
The board found that Facebook was right to suspend Trump’s access after two of his posts during the insurrection “severely violated” Facebook’s Community Standards and Instagram’s Community Guidelines, and their ruling leaves the suspension in effect for at least the time being.
“’We love you. You’re very special’ in the first post and ‘great patriots’ and ‘remember this day forever’ in the second post violated Facebook’s rules prohibiting praise or support of people engaged in violence,” the board states. “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. 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. As president, Mr. Trump had a high level of influence. The reach of his posts was large, with 35 million followers on Facebook and 24 million on Instagram.”
However, Facebook “shirked its responsibilities” by declaring an indefinite suspension and then passing the buck to the board, co-chair Helle Thorning-Schmidt said during the press briefing. “They did get [the Trump suspension] right, but they can’t have a penalty that’s indeterminate because that’s not in their own rules,” she said.
It “was not appropriate for Facebook to impose the indeterminate and standardless penalty of indefinite suspension,” states the decision. “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 “insists” that Facebook review the matter again and make a decision within six months that “is consistent with the rules that are applied to other users of its platform,” the ruling states.
In short, the board said, Facebook should review its own rules and amend them for clarity and fairness if necessary, review Trump’s behavior and the overall situation, and make a decision consistent with its own rules as to whether Trump should be allowed back on the platform, suspended for a specific period of time, or permanently banned.
The Board also made policy recommendations for Facebook to implement in developing “clear, necessary, and proportionate policies that promote public safety and respect freedom of expression.”
And it criticized Facebook for essentially ad-libbing policies when it suits its purpose — such as its much-criticized and little understood policy of allowing otherwise clearly banned content under a “newsworthiness” exception.
Although Facebook has denied it, the “newsworthiness” standard appeared to be used to allow Trump to repeatedly violate Facebook’s rules against speech that could incite violence or otherwise cause harm to others.
The board said that it cannot force Facebook to adhere to its policy recommendations, although rulings on specific cases are supposed to be binding on Facebook. It also acknowledged that any decision made by Facebook could end up being appealed again to the board.
However, by that time, the board’s decision should be "easier" because Facebook will presumably have conducted a review of the Jan. 6 circumstances, issued a report per the board's recommendation, clarified its rules and made a decision that falls under those rules, said board co-chair Michael McConnell.
Some of the board’s recommendations include clarifying its suspension rules and overall penalty system, creating a new policy for dealing with crisis situations, and clarifying restrictions on speech so as to ensure that Facebook “stands up for free expression” without allowing account holders to harm or threaten others.
"Facebook should publicly explain the rules that it uses when it imposes account-level sanctions against influential users," the ruling states. The board "believes that it is not always useful to draw a firm distinction between political leaders and other influential users. It is important to recognize that other users with large audiences can also contribute to serious risks of harm. The same rules should apply to all users of the platform; but context matters when assessing issues of causality and the probability and imminence of harm. What is important is the degree of influence that a user has over other users... time is of the essence in such situations; taking action before influential users can cause significant harm should take priority over newsworthiness and other values of political communication."
Facebook normally has seven days to the board's individual case decisions; in this case, it can obviously only make a start on the recommended review process in that timeframe. The board's rules state that Facebook has 30 days to respond to any of the board's decision.
Update: In a statement issued after the board's decision was released, Nick Clegg, Facebook's VP of global affairs and communications, said that Facebook would consider the board’s decision and determine a policy position regarding indefinite bans, as the board requested. He also confirmed that Trump's account will remain suspended in the meantime.
Trump issued a statement on his new "communications" site asserting that "What Facebook, Twitter, and Google have done is a total disgrace and an embarrassment to our Country. Free Speech has been taken away from the President of the United States because the Radical Left Lunatics are afraid of the truth..." Many Republicans, including House Minority Leader Kevin McCarthy, immediately made public statements vowing to break up Facebook.