Facebook’s Kangaroo Court

Conservatives shouldn’t legitimize today’s “ruling” regarding Donald Trump.

Facebook’s so-called “Oversight Board” will announce this morning whether or not Donald Trump will be allowed back on the company’s platform, or whether his ban will be made permanent. The decision will almost assuredly dominate today’s news cycle. Journalists, pundits and activists of all stripes will treat this ruling with the same seriousness as if it were being handed down by the Supreme Court.

This is all, for lack of a better word, extremely stupid. No one should care what the Oversight Board says or does. The point of the Oversight Board is to provide a faux veneer of expertise and legitimacy to a process that is entirely subjective and illegitimate. It’s not Facebook making an arbitrary and capricious decision, we are supposed to believe, it’s the Oversight Board, which is wholly independent! Except that the Board is selected by Facebook, paid by Facebook, subject to Facebook’s rules, and accountable only to Facebook.

Many conservatives, especially at think tanks in Washington, D.C., treated the Oversight Board as if it were an actual governmental body, submitting comments and briefs lobbying for Donald Trump’s reinstatement. Perhaps there’s merit to that, but let’s be honest about what it was: privately lobbying Facebook to reconsider an internal decision to ban the then-leader of the free world. The Oversight Board is Facebook. Facebook is the Oversight Board. They are one in the same.

And even if one wanted to pretend that the Oversight Board were independent and not subject to Mark Zuckerberg’s whims, it should concern conservatives that few if any of the members meet the definition of “conservative” in any meaningful way, and only five of its 20 members are American. Why would we concern ourselves with an international body’s opinion on American values like free speech and free expression?

Rather than going along with Facebook’s kangaroo court, my organization, American Principles Project, attacked the Board’s legitimacy in a statement back in February:

“We do not recognize the Facebook Oversight Board as having any sort of authority over what speech should or should not be allowed in the public square. Our position is that market-dominant digital platforms based in the US should generally commit to upholding First Amendment principles with regard to content moderation, as affirmed by Supreme Court jurisprudence, while providing users with as many personalized content moderation options as possible.

“We therefore refrained from submitting comments to the Oversight Board regarding President Trump’s recent suspension from the Facebook platform. Additionally, we believe that the outcome to this ‘case’ has already been determined, and we have no interest in lending credibility to a show trial. It’s bad enough one is already taking place in the halls of Congress.”

This still remains true today. Market-dominant social media platforms like Facebook are the digital public square. They should be required to carry speech that would be otherwise constitutionally protected on a public sidewalk. Allowing near-trillion dollar companies like Facebook to act as political partisans, censoring one side while amplifying the other, is tantamount to election interference and represents an existential threat to our democracy. It simply cannot be allowed to go on. We all know what happened in 2020. By censoring advertisements, banning conservative influencers, and falsely fact checking verifiably true content, Facebook and other social media companies swung the election to Joe Biden.

That’s why conservatives need to rally around Section 230 reform. My organization has endorsed H.R. 285, the CASE-IT Act, introduced by Rep. Greg Steube (R-Florida). The bill is beautiful in its simplicity: no Section 230 immunity for websites that engage in illegal conduct, and conditional Section 230 immunity for the largest platforms — they get the special government protection if they commit to First Amendment principles in their content moderation standards. And as an enforcement mechanism, the legislation creates a private right of action, letting users who have had their speech wrongly suppressed sue the platform that suppressed it.

Republicans in Congress are currently all over the place on Section 230 — there are literally dozens of bills that amend the 26-year-old statute. Given that Republicans are likely to take back the House and may very well take back the Senate, it’s important over the next several months that they coalesce behind one or two proposals so they are prepared to move reform forward in 2023.

It’s possible that Facebook will reinstate Donald Trump’s account today. I’m not betting on it. But if the company decides to let him return, hey, that’s great! But it shouldn’t matter. The problem isn’t that Facebook removed Donald Trump. The problem is that the company’s power to suppress speech, coupled with its willingness to exert that power, as it did in January, and as it did repeatedly in the months leading up to the election, is a threat to democracy that conservatives can no longer ignore. Protecting free speech, free expression, and free and fair elections is of the utmost importance. Republicans must act. The future of America depends on it.