Trump faces a narrow path to victory against Facebook suspension

The key factors, these people said, will be whether the board thinks Facebook has clear enough rules and given Trump a fair shake. Another case will be what type of case the Board deems to be balancing – a narrow, “legalistic” debate about a person’s freedom of expression or a broader one about the public’s right to safety.

Often compared to Facebook’s Supreme Court, the board has the power to override decisions made by even top managers like CEO Mark Zuckerberg. The Trump decision will be the group’s best-known to date, with significant implications for US politics and possibly the company’s treatment of other world leaders.

Here are the make-or-break factors that could determine Trump’s fate on Facebook:

One point for Trump: the board’s early decisions bode well for his fall

The decisions of the supervisory board so far seem to bode well for Trump: it has ruled against Facebook and has ordered the restoration of content in almost all cases it has reviewed since its launch before the 2020 US elections.

Two aspects of these decisions could work particularly well for the former president: the board’s commitment to freedom of expression and a huge focus on whether Facebook has made its policies clear enough for users.

The first decisions showed that the board of directors values ​​freedom of expression “very highly,” said Evelyn Douek, a lecturer at Harvard Law School who has closely followed the work of the board of directors.

“They place great value on the importance of the voice and the importance of free expression and speech, and a duty on Facebook to strongly justify the restrictions they want,” she said.

The board could decide that Facebook’s policy against incitement to violence is not clear enough. That policy was that of the company Main Justification for Trump booting after the US Capitol attack, in which he repeated his false claims of a stolen election and attacked Vice President Mike Pence for confirming Joe Biden’s victory.

“One thing that really impressed me in their initial decisions was how much their analysis focused on the lack of clarity in Facebook’s policies and that this is really a reason to say that content needs to be restored on the platform “said Emma Llansó from the nonprofit Center for Democracy and Technology, which is funded by Facebook and other technology companies.

When Facebook announced Trump’s suspension on Jan. 7, Zuckerberg said the risk of further violence if the platform allowed him to remain active was “just too great”. Company rules state that Facebook “can remove language that incites or encourages violence” or “if we believe there is a real risk of physical harm or direct threats to public safety”. The policy also states that in such cases, Facebook may consider additional context, e.g. B. whether the awareness of a user increases the risk.

The board’s decision, however, may depend on whether those guidelines provided Trump with sufficient information about what behavior would violate the rules – in other words, whether he received due process.

Under “the narrowest kind of legalistic interpretation,” said Llansó, “they might well conclude that Trump’s account should be reopened.”

One point for Facebook: Trump has received many warnings

On the flip side, due process concerns may be much less important when it comes to Trump, a public figure who has repeatedly clashed with the site’s rules.

“When it comes to [Facebook’s] In general, when making a decision, users weren’t really clear about where the lines were to be drawn, ”said David Kaye, professor at the University of California at Irvine and former United Nations Special Rapporteur. “But I don’t think any of that really applies to Trump. I mean, for months now, all platforms have been basically signaling Trump pretty clearly that your turn will come if you don’t break them on our rules. “

Trump spent years arguing with Facebook about its standards, including pre- and post-election posts that the company either adorned with warning signs or that were scrapped entirely over unsubstantiated claims about the election or the coronavirus pandemic.

That should have made it clear to him and those responsible for his accounts that he was at risk for more forceful action, Douek said.

“There has been years of fighting between Facebook and years of fighting over Trump’s presence on the platform, and it absolutely cannot be said that he had no idea he was breaking Facebook’s guidelines,” she said.

Facebook removed more Trump posts immediately after the January 6th Capitol riots. declare it an “emergency” and warns that his online rhetoric “tends to reduce rather than reduce the risk of persistent violence”. It suspended him the next day.

One point for Trump: Critics say Facebook enforcement has been inconsistent

However, Facebook’s well-researched track record of monitoring Trump’s posts could turn out to be in its favor.

Daniel Kreiss, a media professor at the University of North Carolina, argued that the social media giant spent years essentially ignoring Trump’s violations of his rules because the company adhered to “too narrow an interpretation” of those rules.

This could hurt the company’s case, he said, if the board of directors believes the company suddenly adopted a broader interpretation of its guidelines for handling Trump’s positions on and after Jan. 6.

“Much of this is due to Facebook’s own mistakes last year,” said Kreiss.

In his January 7 post, Zuckerberg said Facebook let Trump use the platform “in accordance with our own rules,” but storming the Capitol changed the dynamic dramatically. “The current context is now fundamentally different and includes the use of our platform to instigate violent uprisings against a democratically elected government,” said the CEO.

However, critics have impaled the company for not acting more aggressively against Trump’s repeated, unfounded allegations of widespread election fraud in the 2020 election, as well as previous posts such as his warning to racial justice protesters last May: “When the looting begins Filming begins. “Zuckerberg turned down such criticism almost a year ago, saying,” Our position is that we should allow as much expression as possible unless there is an imminent risk of specific harm or hazards set out in clear guidelines. “

The perceived inconsistency associated with the board’s initial decisions could mean Trump is about to make a comeback, argued Kreiss.

“If I were a bettor, I’d say the early decisions made me expect the board to overturn Facebook’s decisions,” he said.

One point for Facebook: Trump’s case defies precedent

Perhaps the biggest factor for Facebook is the fact that Trump’s case breaks any semblance of precedent that the board could have established in its early decisions, said the folks following his deliberations.

None of the previous cases directly involved a head of government – let alone the leader of the free world or someone accused of instigating a fatal attack on the seat of his own democracy. Also, all of the disputes in the past have centered on Facebook’s decision to remove certain content rather than blocking someone’s entire account.

“The thing about the Trump case is that it is so sui generis and extraordinary,” Douek said.

“This just seems like a case that is different in some ways … because of its size in terms of who that person is,” said Shannon McGregor, University of North Carolina media professor who co-wrote a piece with Kreiss urge regulators to uphold Trump’s suspension.

Facebook indeed relied on the unprecedented nature of the case when it referred Trump’s suspension at the regulator on January 21st, beginning of the 90-day maximum review period.

“Our decision to suspend then-President Trump’s access was made under exceptional circumstances: A US President actively fomented a violent uprising to thwart the peaceful transfer of power. Killed five people; Legislators fleeing the seat of democracy,” said Nick Clegg, former UK Deputy Prime Minister, Facebook chief for global affairs.

He added, “This has never happened before – and we hope it will never happen again. It was an unprecedented series of events that required unprecedented action. “

This could mean that even if the board has problems with how Facebook reached its decision, it can agree with its conclusion.

“I’d probably fall on my side: you’re not going to order his account restored, but with an opinion that explains a lot of things Facebook needs to change about its policies to make that outcome clearer and more predictable in the future,” said Llansó.

One point for Facebook: The board is very human rights oriented

Trump and his conservative allies have long accused Facebook and other social media sites of trampling on free speech by unevenly restricting its content, an accusation the companies deny. The criticism borrows from the American tradition of largely unrestricted self-expression, a tradition that Zuckerberg himself proclaimed as a core value for Facebook.

However, the researchers said they expect the regulator to look at Trump’s suspension through a broader human rights lens, which would put more emphasis on how Trump’s speech could harm others.

“The human rights law deals with freedom of expression not only with the freedom to provide information, but also with the freedom to seek and receive it, and provides a kind of framework for reflecting on the implications of language can have on others, ”said Kaye.

That’s not a good sign for Trump, Kaye said, because it would mean Trump’s right to freedom of expression on Facebook wouldn’t necessarily be a determining factor in the board’s decision.

However, some are not convinced that the Board will take such a comprehensive approach to the case.

Paul Barrett, associate director at NYU Stern Center for Business and Human Rights and former Bloomberg columnist, argued in an article that the board’s previous decisions “Tended to narrow the actual context of the controversial posts, an approach that can minimize the potential harm that the speech in question could cause.”

He added, “If those biases were carried over to the Trump decision, they would help him.”

However, viewers should be careful not to read too much into the board’s original decisions, Douek said.

“Predicting the future is always a bad idea, and it’s kind of stupid to do so on such a small sample,” she said.

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