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Michael McConnell: We are not cops ranging over the realm of social media and solving the world's ills. Our sole job is to hold this extremely powerful corporation, Facebook, accountable for making clear, consistent, and transparent decisions.

Lizzie O'Leary: On Wednesday, Facebook’s oversight board ruled to uphold the social network’s suspension of former President Donald Trump with a few important caveats. You might remember that Facebook kicked him off the platform earlier this year following his incitement of the January 6th storming of the Capitol.

The Facebook Oversight Board is an independent group made up of journalists, activists, and academics, and it evaluates what Facebook does with content. Since January, the board's overturned four out of five content decisions by Facebook. While the board agreed with Facebook’s initial decision to suspend Trump. The ban isn’t necessarily permanent because the board, more or less, kicked the ball back to Facebook for them to figure out when or if Trump can return and what exactly should happen with politicians and public figures on the platform?

Michael McConnell: Indefinite penalties of this sort do not pass the international or American smell test for clarity, consistency, and transparency.

Lizzie O'Leary: That's Michael McConnell, co-chair of the board speaking on Wednesday. Since Facebook is a private company, they can decide what types of content or speech to allow or reject. This case has big implications for the future of online speech, especially with more cases like these that will continue to arise around the world.

I'm Lizzie O'Leary, host of What Next: TBD from Slate, and I'm in for Tanzina Vega. We are breaking down Facebook and the former president and what this case means and it's where we start today on The Takeaway. For more on this, we're joined now by Evelyn Douek, a lecturer at Harvard Law School and Affiliate at the Berkman Klein Center for Internet and Society. Evelyn, good to talk to you.

Evelyn Douek: Great to be here.

Lizzie O'Leary: Also Cecilia Kang, Technology Reporter at the New York Times and co-author of An Ugly Truth: Inside Facebook's Battle for Domination. Cecilia, nice to talk to you as well.

Cecilia Kang: Nice to be here with us, Lizzie.

Lizzie O'Leary: Cecilia, I'm going to start with you. Just remind us why Facebook banned Donald Trump from its platform in the first place and how they justified that.

Cecilia Kang: Right. We have to go back to January 6th, the day of the Capitol riots. There were two posts that former President Trump put on Facebook and Instagram. One was a video and one was a statement, where he called the writers great patriots and he again denied the results of the election. This is a very heated time, this was during the Capitol riots, Facebook decided that those two posts violated their own internal rules against content that incites violence.

They took down the posts and the day later on January 7th, they actually blocked or banned Trump from his account, and said that for at least the foreseeable future, until at least the inauguration, that he should not be allowed back on to either of those apps because of the company's concern over the peaceful transition of governments and that the President could further incite violence and disrupt that process.

Lizzie O'Leary: Evelyn, Facebook's independent oversight board upheld this suspension but tossed it back at Facebook to make its own decision about Trump in six months. Can you explain what the board is supposed to be doing anyway, and how you would describe what they did in this instance?

Evelyn Douek: The board's a really interesting and weird institution. It's something that Facebook set up all by itself, to do exactly this kind of thing of reviewing really hard decisions that Facebook has to make or controversial decisions and be an independent check on otherwise what is basically Facebook's power to do, whatever it wants. In particular, Mark Zuckerberg's power to just make these huge decisions like to kick off the then sitting President of the United States from one of the most important ways in which he communicates with his followers.

Yesterday, the board took this decision, and basically, the only thing that it definitively said was, "Yes, on January 7th, you did the right thing in removing the account." but as you said, it kicked the ball back to Facebook on essentially every other question and said, "But you can't just indefinitely suspend him." What does indefinitely even mean? That's not a fair thing to tell someone. It doesn't comply with the way we think about getting people certainty in the law. It's said, "You have six months to work out what to do now, and to come up with a policy on how you might deal with this situation in the future."

Lizzie O'Leary: The board is this group of 20 people, journalists, academics, the former prime minister of Denmark, and they have, Cecilia, given this power back to Mark Zuckerberg, is this just something that Zuckerberg is going to have to make a call on?

Cecilia Kang: Essentially, that's right. The great irony is that Mark Zuckerberg set up this oversight board. He conceived the idea a few years ago, because he didn't want to have to make these kinds of big decisions. He said that Facebook should not have to make these kinds of big decisions, and you can imagine why, because it's enormously that is such a huge responsibility. Also, you don't really win in many ways when you're held liable or responsible for these kinds of decisions, held responsible.

He set up the board saying or he conceived for the board, to have a third independent body, but let's be clear, this is a third party body that he has analogized to a Supreme Court type of system, a sort of board or panel. This was conceived by Facebook, it was set up by Facebook, it is funded by Facebook, though through a third-party trust. The initial board members were selected by Facebook and Facebook had a say on all the board members that were thereafter selected. There has always been questions about independence. I think that the board itself points to a few things to show that it is independent.

What the board did yesterday, which was quite extraordinary was they said, "Listen, Facebook, you want us to make the final call on Trump. Trump has been a real problem for you, throughout Trump's administration as well as after his tenure." The board said, "You cannot shirk that responsibility."

One quote that really stood out to me, they said, "In applying a vague standardless penalty and then referring this case to the board to resolve, Facebook seeks to avoid his responsibilities." The board is essentially saying, "You can't ask us to make the final call when you don't have clear guidelines for how you made that call in the first place, this indefinite ban, so we're sending it back to you." Which is exactly what Mark Zuckerberg and Facebook did not want to happen.

Lizzie O'Leary: Evelyn, I think one thing that's really important here is, obviously, we're talking about Donald Trump, but this isn't just about Donald Trump, but really setting a standard for what Donald Trump, Bolsonaro, Narendra Modi, or any world leader or important person can say on Facebook.

Evelyn Douek: Yes, thank you for bringing that up. It's something that often gets lost in these conversations. Donald Trump is the black hole to which all of our attention is attracted, but this is a really important decision, and to my mind, the most important part of this decision is for what it says exactly as you said, for world leaders all around the world.

That's not just today, it's not just Bolsonaro, or Duterte, or Modi, as you're quite right to mention, but it's every world leader from now into the future, as long as Facebook has this policy that it will write in the coming months. As long as there's world leaders on Facebook, there will be world leaders who manipulate and use Facebook for nefarious ends, and we need to work out what to do with this problem.

Lizzie O'Leary: Cecilia, in the US, there's been a pretty harsh conservative backlash. What do you think happens with that?

Cecilia Kang: I think this just further angers a lot of Republicans in particular about Facebook's handling of the former president. They point to this ban as evidence, and to be sure, Twitter has permanently banned Trump as well. YouTube has indefinitely banned Trump from its site, though it says that he will come back on without any guidelines on when that might be, except to say that they will do so when it's safe to do so.

These bans on Trump in the minds of many conservative lawmakers in the US is evidence that there is an alleged anti-conservative bias by these companies in these platforms. They say that they favor more progressive or left-leaning lawmakers. They pointed to this as censorship in their mind.

Lizzie O'Leary: Though we should note that studies have found no such bias.

Cecilia Kang: Absolutely, but this is a battle cry that continues, and it's gotten louder. Yesterday we heard a lot of lawmakers speak up. I think the way you're going to see that play out is, these lawmakers are going to really focus on the power of technology companies. They are going to threaten, for example, antitrust action against these companies saying that these social media platforms have too much power over speech. They should not be the gatekeepers of speech so we need to look at the dominance and power that these companies hold and see whether they should be broken up or in any other way, lessened in terms of their influence and dominance.

Lizzie O'Leary: Evelyn, I want you to take apart this question of power and speech. These are private companies, they can decide who says what on their platforms. They are not the government. They don't fall under First Amendment sort of rules in the same way, but they do have an extraordinary amount of power. I wonder if we have reached a point as a society where these platforms are too powerful and what to do with that?

Evelyn Douek: I think no one really knows what to do with that, to be honest. They're kind of this weird thing that we haven't really seen before. You're quite right to say they're not governments and we shouldn't hold them to governmental standards in what speech they do or do not allow. Currently, under the law, they have complete discretion to do what they want. That feels like a very unsatisfactory situation because they are really important forums and they do dramatically influence politics, culture. So many things about modern life happen on Facebook and these other platforms. How do we think about that?

I think this is-- Both sides of the aisle have different views at different times depending on particular decisions as to whether they are just private companies and they should be allowed to do whatever they want or whether they are too powerful and we need to reign them in so they can't make these decisions on such a whim. I think the answer is, we do need to think about that.

Whether antitrust can solve this problem, honestly, I'm not sure that it does. I think that there may be very good independent reasons to take antitrust action, but to my mind, Twitter is a good example of why that's not going to solve our problems. Twitter is a pretty small company. In many respects, I don't really know how you would split up Twitter, but is still extremely important, the decisions that it makes.

Lizzie O'Leary: Cecilia, quickly, are we back here six months from now having this conversation again?

Cecilia Kang: Oh yes. I'm going to put it on my calendar, Lizzie. We're going to be talking exactly about this. [chuckles] Facebook has six months to make its own decision on Trump and to justify and explain why it did so and explain how it deals with political speech and political leaders on its platform. We're going to be hashing out the same questions in many ways. There'll be a real question as to what the board's future is at point going forward.

Lizzie O'Leary: Cecilia Kang is a tech reporter for the New York Times and co-author of An Ugly Truth: Inside Facebook's Battle for Domination and Evelyn Douek is a lecture at Harvard Law School. Thank you both for joining us.

Evelyn Douek: Thanks much.

Cecilia Kang: [unintelligible 00:13:13]

Lizzie O'Leary: Hey, make sure you go check out My Day Job Podcast. Slate's What Next: TBD because we're talking about Facebook and how this decision around Trump might actually change the way you and I use the platform as well.

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