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.