The decision by Facebook’s Oversight Board to uphold the company’s restrictions on former president Donald Trump’s social media accounts in the wake of the Jan. 6 Capitol riot was the right call — not because Trump should be banned from the social media platform, but because in making its decision, the board has pushed the decision back to the company to set actual standards for suspending accounts. The company should use that opportunity to create a robust, pro-free speech policy that expressly incorporates First Amendment principles.
The board’s decision covered two issues. The first was whether Facebook’s initial suspension of Trump’s Facebook and Instagram accounts was proper; the second was the propriety of its decision to impose an indefinite ban on Trump’s use of his accounts. On the first, the board held squarely in Facebook’s favor. But it also held that the second, indefinite ban was improper because Facebook had not promulgated clear standards to govern its ability to take down access to accounts or clear penalties in cases where those standards were violated.
Instead of setting those standards itself, the board kicked the problem back to Facebook. It told the company that it had six months to “determine and justify a proportionate response that is consistent with the rules applied to other users of its platform.” The board went on to provide a long list of “policy recommendations” to help Facebook craft such a response, but those words have no binding power because they were not issued as part of the decision itself. Thus, Facebook is free to establish whatever policy it wants, subject only to the board’s subsequent ability to decide appeals of that policy.
Facebook chief executive Mark Zuckerberg thus has to make a series of fateful decisions that could change the future of his company. He will have to decide what penalty he imposes on Trump, and he will have to do so in the context of formulating a set of clear rules that govern all similar behavior by world leaders or others who have “influential accounts.” He will not relish this decision.
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Zuckerberg should take this opportunity to expressly adopt the U.S. Supreme Court’s decisions regarding when speech loses its First Amendment protections. The court held in Brandenburg v. Ohio that speech loses its constitutional protection only when “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The facts in the case are useful: Clarence Brandenburg, a Ku Klux Klan leader, spoke at a rally in 1964 of the possibility of “revengeance” against Black people and Jews and announced that the Klan would march on Washington on July 4. He was convicted for making threats of violence to promote political change, which the court unanimously overturned. The court rightly believed that even reprehensible comments by reprehensible actors were constitutionally protected if they did not directly cause of immediate violence.
Applying the Brandenburg standard would allow Facebook to act immediately, if necessary, when someone acts as Trump did on Jan. 6. His posts that day, made while rioters were in the Capitol building, could clearly be interpreted as supporting their violent behavior. Modern technology means that someone such as Trump can incite or stoke violence as it is occurring even as they sit safely in their homes. A policy that allows for the immediate removal of such statements, coupled with barring the person who made those statements from accessing their account while the violence continued, protects public safety.
The Brandenburg standard also allows most political speech, even those statements with arguably violent connotations or undemocratic implications, to remain undisturbed. That, too, is appropriate for a free and democratic country. Political speech is often designed to incite the passions. Franklin D. Roosevelt, for example, regularly used martial imagery in his 1932 campaign, referring to “battles” and “crusades.” He even ended his convention acceptance speech with: “This is more than a political campaign; it is a call to arms.” This was not merely an idle statement. His first inaugural address ominously stated that if Congress would not act as he asked to combat the Great Depression, he would request “broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” Reasonable people could think these were not so veiled threats against constitutional democracy, but had social media existed then, the Brandenburg standard would allow them to remain undisturbed.
Facebook and other social media giants are private companies that control access to widespread public speech. Zuckerberg should grab the baton the board has handed him and unambiguously commit his private power to a standard that promotes vigorous public discourse.
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