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An oversight board could pave the way for former President Donald Trump to return to social media later this month.
Facebook has an oversight board that reviews decisions such as the one made by CEO Mark Zuckerberg to muzzle Trump after the Jan. 6 incursion into the Capitol, claiming that amid the fear-mongering of the time, Trump should not be allowed to post on Facebook.
Twitter similarly banned Trump — eventually making the ban permanent.
The Facebook board is expected to rule in Trump’s case in the next few weeks, according to Politico.
One key issue that will likely emerge is the extent to which Facebook made clear in its policies that there was a line Trump could not cross.
The board — created before the 2020 election and comprised of outside experts, scholars and lawyers — has ruled against Facebook’s content restrictions in five of its six cases thus far.
Those rulings showed the board rates free expression “very highly,” according to Evelyn Douek, a lecturer at Harvard Law School.
“They put a lot of weight on the importance of voice and the importance of free expression and free speech and they really put the onus on Facebook to heavily justify any restrictions that they wanted,” she said.
The board could rule that the policy against incitement to violence — Facebook’s pretext for banning Trump — was not sufficiently clear.
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“One thing that really struck me in their initial decisions was kind of how much of their analysis focused on lack of clarity in Facebook’s policies, and really pointing to that as a rationale for saying content has to be restored on the platform,” Emma Llansó of the Center for Democracy & Technology said.
The question can be raised whether Facebook informed Trump he was beyond the pale before cutting off his account.
Under “the most narrow kind of legalistic interpretation,” Llansó said, “they might well conclude that Trump’s account should go back up.”
However, another commentator noted that Trump and Facebook have been at odds so often that the former president should have been aware he was almost always at the edge of what the social media giant would tolerate.
“When it comes to [Facebook’s] decision making, it’s not really been clear to users, generally, about where the lines are drawn,” David Kaye, a professor at the University of California at Irvine, said.
“But I don’t think any of that really applies to Trump. I mean, for months, all the platforms had been basically signaling to Trump pretty clearly that you are coming up to the line, if not crossing over it with respect to our rules.”
But for all the antagonism against Trump, enforcement was minimal in other areas — which could tilt a ruling in Trump’s favor, according to one commentator.
Daniel Kreiss, a media professor at the University of North Carolina, said Trump may well have violated Facebook’s rules often, but did so for years with impunity because Facebook held to an “overly narrow interpretation” of them.
Suddenly changing how it applied the rules to Trump could work against Facebook. “A lot of this comes back to Facebook’s own failures over the last year,” Kreiss said.
“If I was a betting man, I would say that the early rulings would lead me to expect that the oversight board will overturn Facebook’s decisions.”
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