![]() Limiting the board’s jurisdiction to take-down decisions stacks the deck somewhat. But a number of the most controversial content moderation decisions made by Facebook in recent years have been decisions to leave content up, not take it down: Think of the Nancy Pelosi cheapfake video in which footage of the speaker of the House was edited misleadingly so that she appeared intoxicated, or hate speech in Myanmar, or the years that Facebook hosted content from Infowars chief Alex Jones before finally deciding to follow Apple’s lead and remove Jones’s material. “Take-downs” could appear to be the kind of decision that most threatens free expression. As I have written previously, this is a significant limitation: But the bylaws only promise this jurisdiction at some unspecified time “in the future.” When the FOB first begins operations, its jurisdiction is limited to referrals from Facebook and “content that has been removed for violations of content policies” from Facebook or Instagram. This is the “Supreme Court” we were promised. The FOB’s bylaws themselves contemplate a potentially vast jurisdiction, including the power to hear disputes about groups, pages, events, ads and fact-checking. The narrowness of the FOB’s initial jurisdiction is the biggest disappointment in the development of the FOB over the past 18 months. * * * What kinds of cases will the FOB be able to hear?īy far the most important open question, and one that I have repeatedly if not monotonously written about, is the question of the FOB’s “jurisdiction”-by this I mean which of Facebook’s decisions the FOB will have the power to review. That design is therefore the focus of this post, which assesses the most consequential outstanding questions that need to be answered as the FOB starts to hear cases. But the FOB could be comprised of 40 diverse Dworkinian Hercules Superjudges and it would not matter if the institutional design does not set them up for success. Overall, though, the reception has been positive. Many pieces have been written about these people they have been criticized from across the political spectrum and called “ nonoffensively nonoffensive,” even as many others took plenty of offense. The initial members are an impressive and serious group that includes former judges, constitutional law scholars, human rights special rapporteurs, a Pulitzer prize winning editor, and a Nobel laureate. But as the FOB creaks into operation in coming months, a number of questions of institutional design remain unanswered. Over the course of the FOB’s establishment, I have written at length about its purpose and promise, and each of its founding documents. The FOB is therefore an effort to find a third, least-worst option. On the other hand, heavy-handed government involvement in speech regulation is always suspect, and the cure to our current woes should not be worse than the disease. But at its core it is the most ambitious attempt yet to cut the Gordian knot of platform content moderation: given the public impact of the decisions that platforms make about what content is and is not allowed on their platform, it is unsatisfactory for private, profit-driven platforms to be making these decisions unilaterally and without any accountability. It is a global body, but it would be naïve to think that it will be able to settle global speech norms when different jurisdictions have clashed about these for many decades.Įxactly what the FOB is, then, remains to be seen. It is a private institution fully of Facebook’s own creation, but it has reasonably robust mechanisms to ensure independence from Facebook, which has put $130 million into a trust intended to fund the FOB for at least two three-year terms. But it will also give policy recommendations, and neither its members nor those who appear before it will be lawyers applying the law. It is court-like in that it will hear appeals from and act as a check on Facebook’s policy-formation and enforcement processes and provide public reasons for its decisions. This marks the culmination of a more than eighteen-month process to set up this unprecedented experiment in content moderation governance and the beginning of the FOB’s journey as an institution.Ĭharacterizing the FOB is tricky. The names of the first 20 members of the FOB, née “ The Facebook Supreme Court,” were announced last week. The Facebook Oversight Board (the “FOB”) will see you now-well, at least a very small number of a select subset of you.
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