Facebook ban on Trump upheld by Facebook Oversight Board, but decision opens door to his possible return

Four months after his ouster from Facebook and Instagram, the Facebook Oversight Board upheld the suspension of former President Donald Trump.

But the company-funded tribunal of outside experts ruled that it was not appropriate for Facebook to impose an indefinite suspension and instructed the company to review the matter within six months, possibly opening the door to Trump's return.

"It is not permissible for Facebook to keep a user off the platform for an undefined period, with no criteria for when or whether the account will be restored," the Oversight Board ruled. "In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities. The board declines Facebook’s request and insists that Facebook apply and justify a defined penalty."

Members of the Oversight Board also made recommendations to guide Facebook’s policies when it comes to "serious risks of harm" from heads of state and other highly influential figures.

The recommendations include rapidly escalating political posts from highly influential users to specialists inside the company who are "insulated from political and economic interference, as well as undue influence."

Nick Clegg, Facebook's vice president of global affairs and communications, said Facebook would consider the board's decision and "determine an action that is clear and proportionate."

"In the meantime, Mr. Trump’s accounts remain suspended," Clegg said in a statement.

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Trump called Facebook, Twitter and Google's YouTube, all of which suspended him after his supporters attacked the Capitol on Jan. 6, "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, but the truth will come out anyway, bigger and stronger than ever before," he said in a statement. "These corrupt social media companies must pay a political price, and must never again be allowed to destroy and decimate our Electoral Process."

The Biden White House said it would not comment on a decision by an independent board or on "the former president's social media platform.”

"The president's view is that the major platforms have a responsibility, related to the health and safety of all Americans, to stop amplifying untrustworthy content, disinformation and misinformation, especially related to COVID-19 vaccinations and elections," White House press secretary Jen Psaki said during Wednesday’s briefing.

In the ruling, the Facebook Oversight Board said Trump’s comments on the day of the Capitol siege “created an environment where a serious risk of violence was possible.”

Laurence Tribe, a professor of constitutional law at Harvard Law School and a liberal stalwart, said no one has a First Amendment right to speak on Facebook.

“No citizen has a right to foment violence, no citizen has a right to engage in insurrection. But in particular, no citizen, private or public, has a right to use any particular private platform like Facebook as a privileged place from which to launch attacks,” he said. “The First Amendment limits the government. It does not limit Facebook.”

Facebook Oversight Board denies it 'passed the buck'

Wednesday, Michael McConnell, co-chair of the Oversight Board, said Facebook properly suspended Trump “at least for the duration of what the Department of Homeland Security called a ‘heightened risk of violence.’”

But Facebook’s policies did not authorize the company to impose an indefinite suspension, and its actions did not pass “the international or American smell test for clarity, consistency and transparency,” he said.

"We hold that it was improper, that is to say in violation of Facebook’s own rules, as well as generally accepted principles of freedom of expression, for Facebook to make that suspension indefinite,” McConnell said. “The board is holding today that Facebook’s treatment of Mr. Trump’s future posting privileges did not meet these standards and cannot continue without a sober and comprehensive review, applying the same rules to Mr. Trump, neither better nor worse, as applied to everyone else.”

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Oversight Board co-chair and former Danish Prime Minister Helle Thorning-Schmidt denied the board was punting the decision to Facebook.

"I don't think we are just passing the buck back to Facebook here," she said.

Evelyn Douek, a lecturer and doctoral candidate at Harvard law school who has closely followed the Oversight board's decisions, said the ruling on Trump's Facebook ban was "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," she wrote on the Lawfare blog. "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."

Conservatives, liberals pan Facebook Trump ban ruling

The decision underscored the outsize influence tech companies have over the nation's conversation and who is allowed to share their views, sparking outrage among conservatives who said Facebook and other major social media platforms routinely censor their speech.

"The Oversight Board’s decision to uphold the suspension is the wrong one, and one that all Americans, regardless of political affiliation, should be concerned about," Heritage Foundation President Kay James said in a statement. "However, it was entirely appropriate to admonish Facebook's vague and standardless penalty. Big Tech companies should not be allowed to play by a set of rules that give them undue influence over American society while also avoiding any accountability for how they use that influence."

House Minority Leader Kevin McCarthy accused Facebook of acting more like a “Democrat Super PAC” than a platform for open debate.

“If they can ban President Trump, all conservative voices could be next,” he tweeted.

The political left was equally aggrieved. Madihha Ahussain, Muslim Advocates’ special counsel for anti-Muslim bigotry, said Wednesday's ruling was “not something to celebrate."

"It is a shameful indictment of Facebook and the Facebook Oversight Board that we just spent several months waiting to see if a man directly responsible for one of the darkest days in modern American history would be allowed to once again spread hate and lies online," Ahussain said in a statement. "Further, we are extremely concerned that the Board’s decision leaves the door open for Facebook to let Trump back on the platform in six months – an unacceptable and dangerous outcome."

The Pew Research Center released data Wednesday showing Americans are divided about whether Trump should be permanently banned from social media: 49% of U.S. adults say he should, and 50% say he shouldn't.

Only 11% of Republicans and Republican-leaning independents say Trump should not be allowed to return to social media, and 81% of Democrats and Democratic "leaners" say he should.

Asked whether Facebook acts in a partisan manner, McConnell said, “The problem is that, when you don’t have clarity, consistency and transparency, there’s no way to know.

"And certainly many people in the United States and around the world strongly suspect that Facebook is behaving in a partisan manner," no matter their political views, he said.

In testimony before Congress, CEO Mark Zuckerberg repeatedly denied that Facebook is biased against conservatives.

Trump still suspended from Facebook and Instagram

Trump lost his direct link to supporters when he was booted from the nation's top social media platforms after the Capitol siege.

An immediate return to Facebook would have been a boon for outreach and fundraising should Trump run for president again in 2024. In 2016 and in 2020, Trump tapped Facebook to energize his base and raise campaign cash.

Without his social media bullhorns, he has relied on a patchwork of news releases, television interviews, emails and robocalls to get his message out.

Tuesday, he launched a web page, "From the Desk of Donald J. Trump," which allows him to be in direct touch with his supporters. He has talked of starting his own social media platform.

Why was Trump banned from Facebook?

Two posts by the president on the Capitol attack violated the company’s rules, Facebook said.

Zuckerberg accused Trump of trying "to undermine the peaceful and lawful transition of power to his elected successor, Joe Biden" and said the indefinite suspension the day after Trump supporters stormed the Capitol was necessary to reduce the risk of violence at least up until Biden's inauguration.

The company referred the final decision on Trump's suspension to its Oversight Board. Saying Trump's suspension had drawn "intense global interest," the board accepted the case in January and pledged to conduct "a thorough and independent assessment of the company’s decision.”

Facebook asked the board: Did it correctly decide Jan. 7 to indefinitely block Trump's access to Facebook and Instagram? It also asked for recommendations on how to handle suspensions of political leaders.

A decision was expected by April 20, but the board extended the 90-day deadline, citing the high volume of public comments. The board received thousands of comments during the public input period and an appeal from the former president himself.

The Oversight Board found that the two Trump posts on Jan. 6 "severely violated Facebook’s Community Standards and Instagram’s Community Guidelines" prohibiting praise or support of people engaged in violence.

Specifically, Trump crossed the line when he wrote “We love you. You’re very special” and when he called the rioters “great patriots” and told them to “remember this day forever.”

"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 found. "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."

Should Facebook, Twitter censor Trump, world leaders?

Zuckerberg and others have grown increasingly uneasy with Facebook wielding the power to silence world leaders and reshape the nation’s online conversation. Even Sen. Bernie Sanders, a virulent critic of the former president, said he was not comfortable with Big Tech blocking Trump's access to his accounts after the Capitol attack.

"Yesterday, it was Donald Trump who was banned, and tomorrow, it could be somebody else who has a very different point of view," Sanders said.

Facebook's Clegg wrote in a statement in January that the decision was made in "extraordinary circumstances" in which a sitting president was "actively fomenting a violent insurrection."

YouTube and other social media companies also indefinitely suspended Trump’s account. Snapchat and Twitter permanently banned Trump.

“We faced an extraordinary and untenable circumstance, forcing us to focus all of our actions on public safety,” Twitter CEO Jack Dorsey said of the decision. “Offline harm as a result of online speech is demonstrably real, and what drives our policy and enforcement above all.”

Trump had more than 88 million followers on Twitter when his account was taken down.

Twitter was Trump's favorite platform to promote his agenda and attack critics, but he also made prolific use of Facebook.

During his suspension, Facebook even removed content from other users featuring Trump, including an interview with daughter-in-law Lara Trump for her show "The Right View."

His account on YouTube is still up, but he cannot upload videos. YouTube CEO Susan Wojcicki said in March that the Trump ban will be lifted “when we determine the risk of violence has decreased.”

Trump tested rules on election fraud, misinformation and COVID-19

Throughout Trump's presidency, social media companies wrestled with how to moderate one of their most popular and volatile users.

Time and again, Trump tested the boundaries of what he could say, violating prohibitions against election misinformation, glorifying violence and falsehoods about COVID-19.

In 2015, when Trump was a presidential candidate, he posted a video calling for a ban on Muslims entering the USA. Facebook decided to leave it up.

Facebook came under fire from the civil rights community and its own employees in 2020 for leaving up a post in which Trump referred to protesters as “thugs” and wrote, “when the looting starts, the shooting starts.”

Zuckerberg announced last June that the company would label posts that violated its rules on hate speech and would remove posts that attempted to incite violence or suppress voting, even from politicians.

The decision to label Trump's social media posts sparked a backlash from conservatives who accused Facebook of censorship. Last week, the Florida Legislature passed a bill that would prevent social media companies Facebook, Twitter and Google’s YouTube from “deplatforming” politicians such as Trump.

When Facebook cut off Trump’s access to its platforms, Trump critics praised the move, which had the support of most Americans, though it was condemned by Trump supporters. Free speech advocates warned it set a dangerous precedent.

"The practical effect of this decision will be that Facebook – and possibly other platforms that might have been watching the Oversight Board for unofficial guidance – will have to continue to grapple themselves with the problem of what to do about political leaders who abuse social media to spread lies and incite violence," Paul Barrett, deputy director of the NYU Stern Center for Business and Human Rights, said in a statement.

Ruling renews calls for Section 230 liability shield changes

Already the ruling from the Facebook Oversight Board has renewed calls for reforming or revoking Section 230 of the Communications Decency Act, the legal shield that protects social media companies such as Facebook from liability for what their users post.

Rashad Robinson, president of Color of Change, told USA TODAY that his racial justice organization and others would fight for increased regulation.

“We would not allow GM or any car company to deliberate for months about whether or not our seat belts worked. We would not allow a meat company to deliberate whether or not the meat that was coming into our kitchen was safe. That’s essentially what we have done with this technology, and that’s why government action is so important," he said. "Until the company is fully accountable and liable in a really clear way, they will continue to put their profit above our safety."

The Oversight Board said it asked Facebook 46 questions. Facebook declined to answer seven entirely, including "whether account suspension or deletion impacts the ability of advertisers to target the accounts of followers."

Bipartisan support to restrain the vast power held by a handful of massive tech companies grew during the Trump administration and has not ebbed after Democrats retook the White House and narrow control of Congress. Scrutiny has intensified on multiple fronts, from privacy to antitrust.

Trump and Republican allies have long assailed the actions of tech companies and Section 230 protections. The Heritage Foundation's James reiterated the conservative call for change Wednesday.

"It is time for Congress to act and reform Section 230 in a way that respects the rights of those engaged in private enterprise but also ensures companies like Facebook and Instagram take responsibility for the choices they make, especially when it comes to censoring individuals and opinions they don’t like," she said.

Mark Meadows, former White House chief of staff under Trump, told Fox News discussion about breaking up Big Tech would begin "within hours" on Capitol Hill.

"It is a sad day for America. It’s a sad day for Facebook because, I can tell you, a number of members of Congress are now looking at: Do they break up Facebook, do they make sure that they don't have a monopoly? And I can tell you that it is two different standards, one for Donald Trump and one for a number of other people that are on their sites," he said.

Both parties judged social media platforms harshly for how they policed content over the past year, from the COVID-19 pandemic to election-related misinformation and disinformation.

Democrats, including Biden, say the platforms don’t restrict or remove enough harmful content, particularly hate speech, extremism, hoaxes and falsehoods.

Those on the right say these platforms have too much latitude to restrict and remove content and target conservatives based on their political beliefs.

Those grievances boiled over when Facebook, Twitter and YouTube suspended Trump’s accounts, citing the risk that he would use his social media megaphone to incite more violence before the end of his term.

“This decision makes clear that no single company and no single unelected person should have so much power. So let us hope that we will move from a decision today that really just kicks the can down the road,” said Jonathan Greenblatt, CEO of the anti-hate group ADL (Anti-Defamation League). “The game of pingpong must end, and now we need the real game, the game of oversight and monitoring that only government can do.”

Sen. Mark Warner, D-Va., chairman of the Senate Select Committee on Intelligence, said the Facebook Oversight Board's decision did not change the fact that "bad actors still have the ability to exploit and weaponize the platform."

"Policymakers ultimately must address the root of these issues, which includes pushing for oversight and effective moderation mechanisms to hold platforms accountable for a business model that spreads real-world harm," he said in a statement.

How does the Facebook Oversight Board work?

The Trump ban is the most consequential case yet for Facebook's Oversight Board.

Launched last year to review the toughest calls the company makes, the board is supposed to function as an independent entity but gets financial backing and technical support from Facebook.

A case has to be referred to the board either by Facebook or by users who disagree with content moderation decisions the company makes. The Oversight Board taps five of its 20 members to consider whether Facebook correctly applied its own rules by taking down or leaving up a piece of content.

The members of the panel are not named publicly, but Politico reported Tuesday that one of the board’s five U.S. members was deeply involved and helped write the initial recommendation. Taking part were McConnell, a conservative former federal judge; John Samples, vice president of the libertarian Cato Institute; and two lawyers conversant in debates about online speech, Columbia Law professor Jamal Greene and University of Oklahoma law professor Evelyn Aswad.

The panel tries to reach a unanimous decision, but only a simple majority is required. The ruling is presented to the entire Oversight Board, which must vote to approve it. If the majority rejects the ruling, the process begins again with another panel.

The Oversight Board, which has the authority to review and overturn the company’s content moderation decisions, showed its willingness to challenge Facebook in the first cases it took on.

In addition to the content moderation rulings, the Oversight Board makes policy suggestions. Facebook is not required to follow those suggestions but has been open to them.

The board's decisions cannot be overturned by Zuckerberg or any other Facebook executive.

Contributing: Maureen Groppe

This article originally appeared on USA TODAY: Facebook Trump ban upheld by Facebook Oversight Board