James Ward is a lawyer, privacy advocate, and fan of listing things in threes. Nothing he says here should be considered legal advice/don’t get legal advice from social media posts. He promises he’s not as smug as he looks in his profile picture.
If there’s one thing that social media loves, it’s talking about social media. It’s no surprise, then, that this week’s internal review at Facebook about whether Donald Trump’s account should be reinstated has chewed up hashtags and trends around the world. If you recall, social networks like Twitter and Facebook banned the Donald in the run-up and aftermath to the storming of the U.S. Capitol in early January. While Twitter — the former president’s preferred medium — has not wavered on its ban, Facebook has made several announcements over the last several months that it was actively reviewing his status. The hype tweets, promoted ads, and news releases over the course of this past week were so frequent it felt like Lebron’s publicist had a hand in it. (“Facebook is taking its talents to South Beach.”)
After all that, earlier today, Facebook announced that, no, Donald Trump was not coming back, which was, I suppose, news of a sort. It’s certainly commanded the news cycle for a few days, and will likely generate quite a few thought pieces in the coming days. But I think the outcome of the decision is more or less irrelevant, and we’re focused on the wrong thing. The decision wasn’t what mattered, it’s who made the decision, and how it has been presented that matters. If we look at those aspects more closely — and you had to see this coming — we’ll see something pretty troubling going on at Facebook: the creation of a pretend “Supreme Court.
When a Court Isn’t a Court
Facebook’s “Supreme Court” has been in the news a fair amount this year, including in Kate Klonick’s excellent New Yorker piece that chronicled the body’s development and expansion. Faced with questions about how it should regulate political speech after the 2016 election, Facebook was under enormous pressure to show that it was taking issues of expression seriously. In 2018, it decided to enlist legal scholars and politicians to establish the 20-member Board to have final say over appeals about content, whether it was permissible, and whether users should be allowed to remain on Facebook. Technically, the body is called an “Oversight Board,” and its members include literati, glitterati, and even the odd Twitterati.
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So what’s the problem? Can’t Facebook enlist the services of the great and good to help make these decisions? Obviously, it can. Companies establish advisory boards all the time, and there’s nothing wrong with it. But what we’re talking about is something different and, importantly, is portrayed as something different. All of the news stories are calling the Oversight Board a Facebook “Supreme Court.” The parallels make some sense: filled with eminent names and legal scholars, it exercises a supervisory function and can even overrule Mark Zuckerberg if it sees fit. Far from downplaying this “Supreme Court” moniker, Facebook seems to relish it, with Klonick reporting that Zuckerberg and COO Sheryl Sandberg concluded that a court would be a “better first step” in regulating content than other approaches. The Board, accordingly, has a quasi-judicial gravitas; fifteen of the members are either lawyers, legal academics, or former judges. The Board’s written output looks like a judicial decision — in fact, it’s hard to tell apart from rulings by actual judges. The Board even cites its own decisions, just like a court would do.
So what’s the problem? The problem is that the Board looks like a court and sounds like a court, but it’s absolutely, 100% not a court.
Much Ado About Judging
“Oh come on, everybody knows it’s not a real court, it’s just Facebook making decisions.” Sure, yes, that’s potentially true. But what is it that makes a court a court? The power to issue a binding decision that affects rights? Or maybe the right to create a body of caselaw that others have to follow within a certain power framework? Well, the Oversight Board can do that. Yes, the jurisdiction is limited to Facebook (more on that later) but the point remains — there are more people on Facebook than there are in Rhode Island, and no one disputes that the Rhode Island Supreme Court is a court. And the limited subject matter authority of the Board doesn’t answer our question either: patent and trademark courts, courts of small claims, traffic courts, and family law courts all have very specific subject matter jurisdiction, and we acknowledge them as courts, too. Accountability? Nope — federal judges are appointed for life and never face voters. Expertise? You need literally no qualifications to be a judge in most states or at the federal level — you don’t even need to have gone to law school.
So what exactly is it about a court that would make it different from the Oversight Board anyway? It’s a particularly tough question to answer as, today, millions of cases never make it to a courtroom, and are instead managed by private actors — mediators, referees, and arbitrators who issue rulings that govern the outcome of disputes. I can tell you from experience that I’ve been in arbitrations that have felt more like litigating a case to a judge than actually litigating a case to a judge. And binding rulings from non-judicial processes like mediation or arbitration are not only permissible, they’re preferred by many legal systems, because they relieve the strain on overworked judges and courts. The most important thing that separates these systems from actual courts — and it’s not a small thing — is that real courts have an independence from other entities that insulates them (one hopes) from influence and power dynamics. But ultimately, that’s just about it.
An Unappealing Outcome
And so, wrapped in a mantle of respectability, expertise, impartiality, and authority, the Oversight Board is what you might call a simulacrum of a court — it looks, feels, and acts like the real thing, but it’s just an imitation, even if we don’t know why. Dealing with the Board will be so much like dealing with a real court that it will eventually become indistinguishable from the real thing. It’s not only possible, but likely, that Facebook would establish subsidiary/inferior boards, just like lower courts in a real justice system, to handle cases in the first instance. The Trump ban, for instance, could have gone to this initial tribunal for review before progressing through a series of reviews, ending up at the Board who will issue a final decision.
Why is it likely? Because lawyers are predictable. If they can recreate the systems they understand, they always do, which is why judiciaries in the West are so similar to one another. In fact, the person who proposed the Oversight Board to Sheryl Sandberg and Marck Zuckerberg is a Harvard Law Professor named Noah Feldman, whose expertise in constitutional law manifested itself in his work in post-US invasion Iraq. That’s where he drafted the precursor to the Iraqi constitution and set out the creation of a judiciary that looks…pretty much like the US one, and like the one developing at Facebook now. Again: lawyers love to replicate the things they know. This is a profession where people fight to be allowed to wear powdered wigs in court.
But just like the actual Supreme Court, virtually no cases ever make it that far. Donald Trump might get his day before the highest court on the internet, but the rest of us will likely muddle through a pseudo-legal system designed by Facebook and always, always accountable to Facebook and Facebook alone. And that’s why the big story here isn’t that Trump remains banned from Facebook, it’s the fact that we’ve all already accepted that Facebook’s “Supreme Court” had the final say — and the fact that it already feels like a natural thing to call it that, doesn’t it?
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