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Facebook board upholds Trump exile, sends final decision back to company

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Donald Trump will not be returning to Facebook — at least not immediately, the social media giant’s third-party Oversight Board announced Wednesday morning.

In its long-awaited ruling, the board validated Facebook’s initial choice to ban Trump for his role in the Jan. 6 Capitol riot but also said Facebook needs to choose a more specific punishment than the “indefinite” suspension currently hanging over the former president’s head.

That could mean a permanent ban, one with a set time limit or even unrestricted access to the platform. In any case, the choice will now be CEO Mark Zuckerberg’s to make — precisely the sort of high-profile, politically charged, seemingly lose-lose decision Facebook seemed intent on side-stepping when it established the board and then charged it with assessing Trump’s ban.

In a written statement, the Oversight Board said it was upholding the company’s Jan. 7 decision to restrict Trump’s ability to post to Facebook and Instagram but noted it was “not appropriate for Facebook to impose the indeterminate and standardless penalty of indefinite suspension.

“Facebook’s normal penalties include removing the violating content, imposing a time-bound period of suspension, or permanently disabling the page and account,” the organization added. “The Board insists that Facebook review this matter to determine and justify a proportionate response that is consistent with the rules that are applied to other users.”

Although it will likely force Facebook leadership to make some hard decisions over the next few months, the ruling is nevertheless an affirmation of Facebook’s initial choice to indefinitely ban Trump from its platform, prompted by the then-president’s incitement of the Jan. 6 Capitol riot and concerns that he would “use his remaining time in office to undermine the peaceful and lawful transition of power” to President Biden.

And after four years of debate over whether and when social media platforms should censor their users, the decision is also a highly public win for the movement to “de-platform” contentious public figures from social media — an effort that critics view as censorship but advocates see as a necessary weapon in the fight against online extremism.

In its announcement, the board said that it had found two of Trump’s posts on Jan. 6 “severely violated Facebook’s Community Standards and Instagram’s Community Guidelines. ” It directed Facebook to review the decision within six months and determine the “appropriate penalty.”

In a brief response to the ruling, Facebook’s vice president of global affairs and communications Nick Clegg said the company was “pleased the board has recognized that the unprecedented circumstances justified the exceptional measure” they took in banning Trump, and “will now consider the board’s decision and determine an action that is clear and proportionate.”

For now, Clegg added, Trump will remain suspended.

Trump’s initial ban came with a minimum length — two weeks, through Biden’s inauguration — but no set end date. Instead, Facebook handed the issue over to its newly created Oversight Board, giving the “Supreme Court of Facebook” final say on whether Trump would ever return to a platform that was key to his 2016 electoral strategy.

The board is made up of 20 academics, political advocates, journalists and lawyers from around the world; that number is set to eventually double. Facebook played a role in selecting the initial cohort, although the board will eventually make its own hiring decisions.

The Oversight Board’s mandate to review “emblematic cases” suggests that this ruling and others, which Facebook says are binding, could eventually create a body of quasi-legal precedent that would inform site policy beyond the limits of any specific case. Thus far the board has seemed very comfortable overturning Facebook’s decisions.

The board is also empowered to make non-binding recommendations on Facebook’s broader site policies. It did so with the Trump case, calling on the company to publicly explain and document what rules can lead to “sanctions against influential users” and clarify how “newsworthiness” influences those decisions.

It also called on Facebook to “recognize that posts by heads of state and other high officials of government can carry a heightened risk of encouraging, legitimizing, or inciting violence” — a seeming rebuke to the platform’s practice of granting wider latitude to public officials.

And, in a nod to concerns that Facebook itself helped foment the conspiracy theories and partisan division that precipitated the Capitol riot, the board added that “Facebook should undertake a comprehensive review of its potential contribution to the narrative of electoral fraud and the exacerbated tensions that culminated in the violence … on January 6.”

The decision could also send wider ripples through Silicon Valley, giving Twitter, Snapchat and other platforms cover to maintain their own bans or impose new ones.

With Facebook trapped between Republicans who want less moderation of user content and Democrats who want more of it, the company has been hesitant to wield that kind of power. But instead of offloading its responsibility to the board, Facebook has now effectively given itself a deadline and a more detailed to-do list.

“This verdict is a desperate attempt to have it both ways, upholding the ‘ban’ of Donald Trump without actually banning him, while punting any real decisions back to Facebook,” a Facebook-critical watchdog group calling itself the “Real Facebook Oversight Board” said in a statement responding to the Wednesday ruling.

In a press briefing later Wednesday, members of the group criticized the ruling further, comparing its lack of a firm conclusion to a can kicked down the road or a pingpong ball batted back and forth.

Facebook isn’t the only platform to ban Trump — Twitter and many other websites took the same steps, in response to the same concerns. (Twitter, which was Trump’s soapbox of choice while president, has opted to permanently suspend him.)

Neither is Trump the first public figure to get “de-platformed,” or kicked off social media, in an effort to deprive him of algorithmically supercharged audiences. The practice has emerged as a particularly contentious front in the debates over social media moderation that swept through Congress during the Trump years.

Far-right ideologues such as conspiracy theorist Alex Jones, former Breitbart editor Milo Yiannopoulos, Trump confidant Roger Stone and a handful of other internet-savvy conservative provocateurs have all been banned by some combination of Facebook, Instagram, Twitter and YouTube. Less direct de-platforming campaigns have also targeted broad groups including the QAnon conspiracy and the far-right Proud Boys.

But Trump, a sitting head of state at the time of his bans, is perhaps the biggest case study yet in what de-platforming means in an era when politics happen as much online as off.

“De-platforming works,” said Heidi Beirich, co-founder of the Global Project Against Hate and Extremism. Trump’s de-platforming was important because it deprived him of the megaphone he’d previously used to incite anti-lockdown protests and the “Stop the Steal” campaign, not to mention the Capitol riot, she said.

In addition to cutting off access to monetization tools and supporters’ contact information, Beirich added, de-platforming “causes the ability to recruit to fall off a cliff. In other words, you no longer have access to … millions and millions of people, billions in the case of Facebook, to recruit into your space.

“You can almost feel the quiet out there, online, with Trump gone,” she said.

But the practice is controversial among both right-wing partisans who take umbrage at their allies being silenced, and free speech advocates who worry about the power Big Tech has to unilaterally quash public debate.

“We are concerned when the arbiters of what has become the public sphere silence or remove access to major political voices in general, whether that be Donald Trump or anyone else who holds actual governmental power,” said Nora Pelizzari, director of communications at the National Coalition Against Censorship.

Pelizzari, who noted her organization has not been tracking the Trump case closely, acknowledged that 1st Amendment free speech protections apply only to the government — meaning it’s not unconstitutional for Facebook, or any other private platform, to moderate user content. But, she added, we “live in a world where huge, huge swaths of public discourse, political conversation, socio-political debates are happening on platforms owned by private entities.”

(The idea that social media platforms have become so big and important to our lives that they now constitute de facto public forums is common among champions of a “public utilities” approach to social media regulation, and was recently given some credence by Supreme Court Justice Clarence Thomas.)

“When you don’t allow certain voices on certain platforms, that doesn’t mean that they’re silenced; that just means that they find other platforms,” added Pelizzari — often more lightly policed ones.

But the winner-take-all dynamics of social media make it difficult for niche services to attain critical mass. The anti-censorship platform Frank, developed by MyPillow CEO and Trump cheerleader Mike Lindell, has struggled to get off the ground amid rampant technical issues. (Lindell has himself been permanently banned from Twitter).

Parler, the conservative-friendly Twitter clone that many anticipated Trump would migrate to after he got booted off more mainstream platforms, went dark when the private companies that ran its low-level infrastructure pulled their support. (Parler later reemerged with Russian backing).

Meanwhile, Trump seems disinclined to throw his weight behind any platform he doesn’t own a piece of. Rather than join Parler or Gab after his Facebook and Twitter bans, Trump simply founded a new personal website, posts from which now get recirculated among his base over apps like Telegram.

On Tuesday, he launched another one designed to mimic the look of a social media feed, with short posts, “From the desk of Donald J. Trump.” The posts have buttons allowing users to like and share them on Twitter and Facebook.

Following the Oversight Board’s ruling, Trump was back to posting in his familiar voice, if not his former channels.

“Free Speech has been taken away from the President of the United States,” he wrote. “These corrupt social media companies must pay a political price.”

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