Facebook Upholds Trump Ban But Admits Permanent Ban Lacked Any Objective Standard

Facebook’s Oversight Board just voted that the company may want to give Trump back his boots.

The decision of the board to uphold the decision to ban Trump but reconsider his lifetime ban may seem transparently convenient for many. However, there is precedent. One of my favorite trial accounts is from Ireland where an Irishman was accused by an Englishman of stealing a pair of boots. The guilt of the defendant was absolutely clear but the Irish jury could not get itself to rule for the Englishman. Instead, it acquitted the Irishman but added a line, “We do believe O’Brien should give the Englishman back his boots.” Case closed.

Few people thought that, after expanding the censorship of political figures like Trump for years, Facebook could ever summon the courage to declare itself wrong in the ban first imposed on January 7, 2021. Instead, the board ruled that it was absolutely right to suspend Trump but it may want to reconsider the permanent ban given the absence of any objective standard to support it. So Trump will still get the boot for now. Facebook in the meantime will continue its insidious campaign to get people to “evolve” on regulations impacting privacy and free speech.

It may be too harsh to expect anything more from a board that literally monitors one of the world’s largest censorship programs. Facebook, Twitter, and other companies now openly engage in what they like to euphemistically call “content modification.” The decision reflects the convoluted logic of censor’s free speech review board. The company – and the Board – start from the assumption that it can and should censor views deemed “misinformation” or dangerous. The starting position therefore is that censorship is justified and that content neutrality is dangerous.

The Board’s position on the standardless policy on permanent bans ignores that its temporary suspension policy is equally standardless. The company cited the response to Trump’s speech by third parties as opposed to a specific call by Trump to commit violence. It does not take the same position when similar words are used by figures like Rep. Maxine Water (D., Cal.) during protests. The board worries that the permanent ban is not grounded in a state policy and that such limitless authority should concern everyone.  Indeed it does. Just as we are concerned by the limitless authority imposed on suspensions.

Recently, Facebook banned not just the postings but the very voice of Donald Trump. In what could be called Zuckerberg’s “He Who Must Not Be Heard” standard, Facebook blocked an interview of Trump with his daughter-in-law Lara Trump.  The company declared that it would censor  any content “in the voice of Donald Trump.” Thus, if Trump whispered his answers to his daughter-in-law, she could say the words. That is not considered what the Board calls an “indeterminate and standard less penalty.”

Even Facebook’s self-criticism of acting without a governing standard is self-contradictory.  If your company banned someone permanently without having a basis or standard, why is the natural response to look for a standard as opposed to lifting the standardless ban? This is not some remand for re-sentencing. The board concluded that there never was a stated basis or policy for the decision to permanently ban Trump. It is like a judge saying that I believe that the police had a reason to arrest you but I cannot see a reason for keeping you indefinitely in jail . . .  so I am going to keep in jail while we try to figure out if we ever had a reason to keep you indefinitely in jail.

Yet, that is the logic when your natural default is “content modification” and speech controls.

What is most alarming is that Facebook, Twitter, and other companies have been defended by Democratic leaders, writers, and academics. Indeed, the Atlantic published an article by Harvard Law School professor Jack Goldsmith and University of Arizona law professor Andrew Keane Woods calling for Chinese style censorship of the internet.  They declared that “in the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong” and “significant monitoring and speech control are inevitable components of a mature and flourishing internet.”

Democratic leaders like Senator Richard Blumenthal (D., Conn.) have warned Big Tech companies that they are watching to be sure that there is no “backsliding or retrenching” from needed “robust content modification.” Many commentators on the left have become unabashed enablers of not just censorship but corporate censorship.

The common rationalization is that these companies are not subject to the First Amendment so there is no free speech issue.  The First Amendment is not synonymous with broader values of free speech. Private companies can still destroy free speech through private censorship. This is particularly the case with companies who not only run platforms for communications but received immunity from lawsuit under the view that they would be neutral providers of such platforms. Imagine if your telephone company took it upon itself to intervene in phone calls to object to something you just said or ban you from further calls for spreading misinformation. Some of us believe free speech is a human right that is defined by values beyond the confines of the First Amendment.

The alliance between political figures and these companies is particularly chilling. Big Tech has allowed for the creation of a state media without the state. Recently, Twitter admitted that it is censoring criticism of India’s government over its handling of the pandemic because such views are deemed illegal in India.  Facebook has been accused of censoring the views of Sikhs raising genocide concerns. Governments can now outsource censorship duties to Big Tech which benefits from government support ranging from immunity to taxation laws.

Trump has moved to create his own platform to communicate with voters. However, this is not about Trump. It is about Facebook and its censorship program. Many of us are not impressed by Facebook’s effort to work out its censorship standards because it is based on a premise of censorship. The Internet was once the greatest creation for free speech in history. It is now being converted into a managed space for corporate approved viewpoints. For free speech advocates, it is like going from a rolling ocean of free speech to a swimming pool of controlled content.

In the end, Facebook’s board could not go as far as the Irish jury to say that the company should give Trump back his boots but rather it “might want to consider” giving him back his boots. In the world of corporate censors, that is considered a principled stand.

An earlier version of this column ran on Fox.com.

285 thoughts on “Facebook Upholds Trump Ban But Admits Permanent Ban Lacked Any Objective Standard”

  1. I am a genuine leftist, i.e., I am deeply critical of the Democratic Party and advocate for democratic socialism, and Facebook is definitely censoring me much more tightly now than they used to, before 2016. I think their current algorithm ensures that virtually nobody sees my posts. I’m also on Minds and MeWe, but most of the people I know have stayed with Facebook, so I remain there, as well, although what they are doing really pisses me off.

    1. Brothermartin,

      Your criticism of Facebook brings us an example of how an anecdote, your experience with them, can be so pervasive it is nearly universal in scope. The Orwellian nature of social media giants has become a systemic problem with free publishing on the Internet. The fact of Facebook doing all it can to craft and marshal their user base into a singular set of approved content makes in my view a convincing argument for returning to the early 1990’s atmosphere of the world wide web where everyone relied on common protocols and formats to disseminate information to the readership, that is hosting their own website on one’s own servers and using e-Mail, RSS, IRC, NNTP and other non-proprietary modes of transmission to conduct that information.

      The technology exists and has since the 1980s for the most part to do all of this but for the average person setting up their own website, List Server, and RSS feed is daunting and people have become so hardwired to being betrothed to a few social media giants that they effectively won’t listen to information transmitted by anything other than those media.

      There was a period in the past few years where some did escape from the Facebook/twitter/Myspace etc. type of outfits and set up their own domains hosted at various providers. It wasn’t long before censorship minded opponents began harassing the Internet Service Providers until they finally dropped the site owners. Of course, one only needs to simply find another hosting service elsewhere and change the domain registration to a different IP address, but after having had to relocate to different providers, one after the other; they finally got tired of the harassment and gave up. It is no wonder why SeaLand became so popular of an idea for their foray into hosting service.

      A long term problem with this is that each new generation of users will grow up accepting an increasingly narrow band of permissible speech and will be truly clueless as to the kind of freedom that once was on the Internet. So I expect the censorship to only get worse because too many are invested in taking away the liberty of others. What is kind of ironic actually is that the behavior of people has gotten much worse over the years. Thirty years ago a person more or less had to have their act together to participate on the internet, both from technical knowledge and generally being more of a virtuous and decent person. Now that any Tom, Dick and Harry can post at nearly the same volume and scope as remarkable and honorable people, the level of baseness here is at an all-time high. Society hasn’t really been able to catch up with the speed and velocity for the changes in which technologically driven interpersonal communication is conducted, and people’s ability to cope with it has been a bit blindsided–leading up to much strife in the minds of many. I believe a way to mitigate some of this is to simply turn off as much as the noise and irritation and for individuals who would like to have their own website/blog taking charge of their own virtual household might bring some solace.

      A friend mentioned someone he knows who is a medical doctor and hosts a blog providing information on medial issues. The doctor eventually became so frustrated with intolerant, fervent people attacking him, posting vulgarity, and using his site as a means to blurt out completely unsound information amounting effectively to medical quackery that he shut off comments and links to social media. Essentially the comments and social media tweets were requiring so much time for babysitting and the aggravation made him question why he even bothered to host a website at all. So he fell back on what he enjoyed doing most, writing only the medical articles and nothing more. It probably saved his website in doing this. He decided what was more important to him and went with it.

      1. A Corollary to the doctor’s situation above is the idea of simply writing articles to a blog without any regard to how many people will read it and what they might have to say about the content. A person can achieve a form of liberation by not allowing their sense of importance to be tied to the size of their audience and how loved / hated they are. That way one is free to write what they want, and not be influenced by the demands and expectations of others. The virtue behind this is that a person is fully at liberty to express their unique ideas to the fullest extent they are capable. If everyone was enabled to be so free to express themselves as individuals, the marketplace of ideas would be awash with a great many interesting perspectives to choose and learn from. And moreover if a person writes particularly meritorious content, the marketplace will by design tend to award them with as many fans as the market will bear for their particular flavor of idea or skill level. Surely this is not the easiest way to start a blog from scratch, but that is an inescapable requisite of freedom and liberty, it isn’t always easy.

        Yet if we remain as content providers in an unholy marriage to Facebook and the likes our individual freedom and consequently the broader market of ideas will be constrained. And the velocity of progress will become stagnant. And human history has demonstrated repeatedly that stagnation is something that humanity should strive to avoid.

        1. Darren,
          I’m curious to know if JT began his blog as you describe here or did he early on, participate in the blog? There was a question posed yesterday wondering if JT participates in his own blog now under a pseudonym.

          1. “There was a question posed yesterday wondering if JT participates in his own blog now under a pseudonym.”

            Too funny.

            1. Yep, “too funny” that OLLY and others would think that JT would use a pseudonym.

              It’s highly unlikely, IMO. Highly.

              Here’s a challenge to those who think that he does: Give us one example of a comment that JT might have posted using a pseudonym.

          2. Olly,

            Professor Turley was more active with personal comments from 2007 to 2011 then the frequency of comments began to lessen. 2014 was a contentious year for the blog and he had to personally intervene more frequently because some of the commenters were constantly violating the Civility Rules. It became quite bad. After that he seemed to allocate more of his time toward other matters. It has been my observation that the number of articles he writes per week has increased and at the same time the number of personal comments he offers dropped. I don’t obviously keep up with his schedule but that is what I have seen here, as others have.

            As to the matter of whether or not Professor Turley comments under a pseudonym, I have never seen any evidence of that happening nor do I personally believe it is something he would do. I recognize that it is a practice some blog owner’s might engage in, but I don’t believe it is the case here.

            1. Thank you Darren. I do recall his comments in 2014 regarding the civility rules. I certainly haven’t seen any comments on this blog that would lead me to think he’s contributing.

              On the other matter, this article came into my email earlier today from the Federalist regarding RSS feeds. I didn’t know anything about them and since I’ve deleted my accounts with FB and Twitter, it would be good to have a news aggregator. I’ve signed on to Feedly.

              Thanks for the tip!

              https://thefederalist.com/2021/05/13/5-ways-to-reduce-your-daily-dependence-on-big-tech/?utm_source=newsletter&utm_medium=email&utm_campaign=the_federalist_daily_briefing_2021_05_13&utm_term=2021-05-13

              https://www.wired.com/story/rss-readers-feedly-inoreader-old-reader/

            2. “As to the matter of whether or not Professor Turley comments under a pseudonym, I have never seen any evidence of that happening nor do I personally believe it is something he would do.”

              Darren, I consider it libel when someone says he uses a pseudonym. That is his reputation that is at stake and his reputation is his most valuable asset. It is so valuable that though many of my views are opposite to Turley’s when it comes to his view of the law I listen closely recognizing that one can reasonably disagree. Reputation is key to a well functioning societies and businesses. Before the FDA and all the government intervention people based many of their purchases on reputation. Reputation removes a lot of transactional costs.

    2. A Corollary to the doctor’s situation above is the idea of simply writing articles to a blog without any regard to how many people will read it and what they might have to say about the content. A person can achieve a form of liberation by not allowing their sense of importance to be tied to the size of their audience and how loved / hated they are. That way one is free to write what they want, and not be influenced by the demands and expectations of others. The virtue behind this is that a person is fully at liberty to express their unique ideas to the fullest extent they are capable. If everyone was enabled to be so free to express themselves as individuals, the marketplace of ideas would be awash with a great many interesting perspectives to choose and learn from. And moreover if a person writes particularly meritorious content, the marketplace will by design tend to award them with as many fans as the market will bear for their particular flavor of idea or skill level. Surely this is not the easiest way to start a blog from scratch, but that is an inescapable requisite of freedom and liberty, it isn’t always easy.

      Yet if we remain as content providers in an unholy marriage to Facebook and the likes our individual freedom and consequently the broader market of ideas will be constrained. And the velocity of progress will become stagnant. And human history has demonstrated repeatedly that stagnation is something that humanity should strive to avoid.

      1. “not be influenced by the demands and expectations of others.”

        Richard Feynman

    3. I am a genuine leftist, i.e., I am deeply critical of the Democratic Party and advocate for democratic socialism,

      To help me understand what that means, what criticism deep or otherwise, do you have of this current iteration of the Democratic party? As a leftist that advocates for democratic socialism, can you cite where in that ideology that they support the free exchange of ideas, i.e. no censorship from platforms like Facebook, Twitter, etc?

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