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Trump's Facebook ban upheld by Oversight Board

NBC News logo NBC News 5/5/2021 David Ingram
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Facebook was justified in banning then-President Donald Trump from its platform the day after the Jan. 6 riot at the U.S. Capitol, but it needs to reassess how long the ban will remain in effect, the social network’s quasi-independent Oversight Board said Wednesday.

The decision to uphold the ban is a blow to Trump's hopes to post again to Facebook or Instagram anytime soon, but it opens the door to him eventually returning to the platforms. Facebook must complete a review of the length of the suspension within six months, the board said.

“Given the seriousness of the violations and the ongoing risk of violence, Facebook was justified in suspending Mr. Trump’s accounts on January 6 and extending that suspension on January 7,” the board said in its decision.

The board said that Trump “created an environment where a serious risk of violence was possible” by maintaining a narrative that the 2020 presidential election was fraudulent.

The oversight board said, however, that it was not appropriate for Facebook to vary from its normal penalties when it made the ban indefinite. Facebook’s normal penalties include removing posts, imposing a limited suspension or permanently disabling an account, the board said.

“As Facebook suspended Mr. Trump’s accounts ‘indefinitely,’ the company must reassess this penalty,” the board said. “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 ruling pushes Facebook to more clearly define what the penalties are for world leaders who violate its rules, a topic that sparked worldwide debate even before Trump and that hangs over the company as Trump considers his own future.

“The Oversight Board is clearly telling Facebook they can’t invent new, unwritten rules when it suits them,” said Helle Thorning-Schmidt, a co-chair of the Oversight Board and a former prime minister of Denmark, on a call with reporters.

Nick Clegg, Facebook's vice president of global affairs and communications, said in a blog post responding to the board’s criticism that the company will "now consider the board’s decision and determine an action that is clear and proportionate."

"In the meantime, Mr. Trump’s accounts remain suspended," Clegg wrote.

Facebook created the Oversight Board last year as a kind of "supreme court" to hear appeals from users like Trump who have had their posts removed or who want to challenge other sensitive or contentious moderation decisions. The decisions of the board, made up of 20 members from around the globe, are not binding, but Facebook CEO Mark Zuckerberg has pledged to abide by what it says.

Its decision focused on two Trump posts from Jan. 6, both praising people involved in the Capitol attack: one post telling the rioters, “We love you. You’re very special,” and the other calling them “great patriots,” and saying “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 said.

The opinion reflected some dissent from within the board. A minority of the board would have gone further and ruled that Trump’s posts were out of line not only as simple praise of the rioters but as a “call to action” inciting violence.

The decision does not apply to Twitter, YouTube or any of the other services that banned or restricted Trump in the wake of the Capitol attack.

The Oversight Board's decision is likely to become fodder for Republican lawmakers and other critics of the increasing power that Facebook and other tech companies wield over political debate and online speech.

It also could be a far-reaching precedent for how some of the internet's biggest platforms treat the speech of world leaders and politicians.

Hundreds of people have been charged in connection with the Jan. 6 riot, in which an armed mob forced its way past Capitol Police officers and disrupted the counting of Electoral College votes by Congress. Five people died, including a police officer who suffered two strokes; some rioters said they were there to start a revolution against incoming President Joe Biden.

Facebook restricted Trump's account within hours, announcing in a tweet at 8:36 p.m. ET that he would be blocked from posting for 24 hours because of two policy violations.

The next day, Zuckerberg extended the suspension for at least two weeks, saying Trump was using the platform "to incite violent insurrection against a democratically elected government."

"We believe the risks of allowing the president to continue to use our service during this period are simply too great," Zuckerberg said in a Facebook post. The suspension has been in place ever since.

Unlike Twitter, which banned Trump, Facebook and YouTube have not deleted his accounts. Trump has 35 million followers on Facebook, 24 million on Instagram and 2.8 million on YouTube. On Twitter, he had nearly 89 million.

Trump has mostly kept a low profile since he left office. He has granted interviews to Fox News and Fox Business, issued statements through a spokesperson and launched a blog called From the Desk of Donald J. Trump.

The Oversight Board's decision helps to flesh out a much broader debate about who gets to decide the rules for social media platforms. Congressional Republicans, such as Sen. Ted Cruz of Texas, have pushed the idea that federal law ought to require tech companies to be "neutral" in the content they allow, and at least one Supreme Court justice appears open to it.

Last week, Florida's Republican-led Legislature passed a first-in-the-nation bill to punish tech companies that "deplatform" candidates for office, with fines of up to $250,000 a day.

In Texas, state Attorney General Ken Paxton launched an investigation into five tech companies for their bans of Trump, a move that prompted Twitter to file a lawsuit asking a federal court to help defend Twitter's "internal editorial policies."

The idea of a standalone board of non-employees' regulating content policy for a tech company had no precedent when Zuckerberg first floated the idea in 2018.

The 20 members of Facebook's Oversight Board are a mix of lawyers, academics, journalists, a former Danish prime minister and others. One, Stanford law professor Michael McConnell, is a former Republican-appointed federal judge who was considered for the Supreme Court.

The board members are not Facebook employees, but they receive compensation from a trust, which Facebook initially funded with a $130 million grant in 2019. Compensation is not conditioned on the outcomes of cases, according to the board's charter.

After Trump’s ban, Facebook asked the board to consider two questions: Did the company decide the issue correctly? And what should Facebook do generally about suspensions when the user is a political leader? The case was assigned to a five-person panel.

Nearly 10,000 comments poured into the panel over how it should decide Trump's case. A letter from a group of well-known law professors argued for a "strong presumption" for allowing speech by everyone except for "calls for political violence against a democratically elected government" — essentially, Facebook's position.

Trump is permanently banned on Twitter and he is suspended from YouTube, reflecting differences in how social media companies write and enforce their rules.

Twitter CEO Jack Dorsey said in January that the service faced an "extraordinary and untenable circumstance" given the risk of real-world violence. He said in a series of tweets that banning Trump was the right decision, even as he said it raised questions about how to keep the internet open to all.

Twitter in 2018 amended its rules to carve out an exception for "world leaders," allowing their tweets to stay up in some cases when the same speech by others would be removed. Since Trump was banned, the company has been gathering opinion about whether to revise the policy.

YouTube suspended Trump's channel in January, preventing him from posting but leaving most existing videos in place. CEO Susan Wojcicki said in March that presidents must follow the same rules as everyone else, including a ban on incitement to violence, and she said the channel would remain suspended while the risk of violence remains elevated.

"We will lift the suspension of the Donald Trump channel when we determine that the risk of violence has decreased," Wojcicki said March 4 in an online event hosted by the Atlantic Council.

Under YouTube's rules, a channel is removed entirely if it has three strikes, or violations, in 90 days.

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