It's Not Over. The Oversight Board's Trump Decision is Just the Start.

The long international nightmare is not over. By now, you will have read that on Wednesday the Facebook Oversight Board (FOB) upheld Facebook’s Jan. 7 restriction on former President Donald Trump’s account, largely on the basis of the ongoing violence at the time of the posts that led to the ban. But the FOB did not settle the matter for once and for all: It punted the question of what to do with the account now back to Facebook. It dinged Facebook’s “indefinite” ban as a “vague, standardless penalty”—“indefinite,” according to the FOB, is very much not synonymous with “permanent.” Now, Facebook has six months to conduct a review of what to do with Trump’s account. 

The decision is meaty and educational. It contains a number of recommendations which, if Facebook follows, will significantly improve the clarity and mitigate the arbitrariness of Facebook’s decision-making. It is also an attempt to split the baby—not letting Trump back on, but also not demanding a permanent ban of his account—and to avoid the inevitable controversy that would have attended any final decision. A Pew research poll released today found that Americans were essentially completely evenly split on whether Trump should be allowed back on social media. Any definitive decision would have made lots of people very unhappy. But in trying to preserve its own legitimacy, the FOB’s decision here has just deferred the controversy and doomed the public to more unending Trump-focused news cycles for up to another six months, and potentially longer.

There will be plenty of hot takes about the decision. This post is not another one. I focus on the details of the decision and what they reveal about Facebook’s rules, and the FOB’s role in reviewing them. There’s lots to like in the FOB’s decision, and it proves why the whole experiment shows promise. It also shows that the FOB continues to rely too heavily on a state-based conception of governance and to ignore the significant ways in which its role is different from that of a regular court. Its job was to constrain Facebook’s discretion, and it pretty comprehensively refused.

The Substance of the FOB’s Decision Regarding Trump’s Account

The central part of the FOB’s decision turned on what the FOB views as the completely arbitrary nature of Facebook’s punishment for Trump. Repeatedly throughout the decision, the FOB admonishes Facebook for lack of clarity in its rules. It writes that the case “highlights further deficiencies in Facebook’s policies.” In a sentence tucked right at the end of the decision, the FOB notes that this lack of transparency means that there is not “adequate guidance to regulate Facebook's exercise of discretion.” That tiny sentence gets to the core of why the FOB is important.

As I wrote at the time, the central problem with Facebook’s decision was not the substance of it, but that it appeared politically and strategically convenient in a moment where platforms all across the internet were taking action against Trump-related accounts. Mark Zuckerberg was the ultimate arbiter of the decision and he could have made it on the basis of little more than a coin toss given the lack of any “clear, published procedure” guiding him. 

The whole ambition of the FOB exercise is that it will constrain the completely unaccountable power that Facebook currently exercises over what the FOB calls, correctly, “a virtually indispensable medium for political discourse, and especially so in election periods.” The FOB’s decision calls for Facebook to do better, but it’s ultimately too cautious an intervention. 

The FOB’s focus in the opinion was on the “indefinite” nature of the suspension. In this case, the “indefinite” suspension was completely sui generis. As I wrote on Jan. 11 when I argued that Facebook should refer Trump’s suspension to the FOB, such a suspension is

an unusual remedy—I know of no case where Facebook has taken this approach of banning an account for an unspecified length of time before—and one that creates a great deal of uncertainty. Whether Trump will get his account back, in other words, appears t