Facebook’s oversight board says Donald Trump can be kept off—for now

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“SAVE AMERICA” is the slogan at the top of Donald Trump’s newly launched blog, where anyone nostalgic for 2020 can find tirades resembling those he plastered on social media before he was kicked off Facebook, Instagram, Twitter and YouTube for his statements during the storming of the Capitol on January 6th. Next to his posts are icons for users to click and share Mr Trump’s messages on Facebook and Twitter, reminders of how those platforms confer the widest reach and influence.

For now, Mr Trump’s blog is all he has. On May 5th Facebook’s independent content-review body, the Oversight Board (OB), issued its most anticipated ruling since it began hearing cases last year, upholding the company’s decision to suspend Mr Trump’s accounts but saying that doing so indefinitely was inappropriate.

In essence, the OB has returned the burden to Facebook, telling it to devise clearer rules and more consistent penalties, and giving it six months to make a final decision regarding Mr Trump's access to the platform. It also asked Facebook to review its role in helping spread Mr Trump's lies about November's election being stolen, and in fomenting the riot of January 6th.

Those hoping for a final verdict on whether Mr Trump could return to Facebook will be disappointed. But the OB’s decision is significant nonetheless. It points to the difficult three-way balance online platforms must strike between free speech, online misinformation and real-world harm—a quick calculus made by too few people with too little transparency. It also highlights the influence that the OB is trying to exert by speaking snark to power. “In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities,” the OB wrote in its decision. According to Michael McConnell, a former judge who is co-chair of the OB, Mr Trump’s “is not the only case in which Facebook has engaged in ad hocery”.

The OB was conceived in 2018 by Facebook’s founder, Mark Zuckerberg, as a “supreme court” for content decisions. Cynics view it as an attempt to deflect responsibility for the company’s thorniest decisions, but it is a worthwhile experiment in creating as a middle ground between corporate autonomy and government intervention. The 20 members of the board have an independent streak. Of the nine cases on which the OB has ruled, it has overturned Facebook’s initial decision six times.

If the decision on Mr Trump’s case pushes the social network to make its policies about how and when bans are imposed clearer, the OB will have proved its worth. But it left a “big gap” by not offering more definitive guidance, says David Kaye, a former UN special rapporteur on free speech. He argues that the board should have been clearer about when politicians should receive different treatment than other users, and also that it should have been given Facebook more direction about investing more to reach faster decisions on questionable but significant posts.

Nor will the OB’s decision shield Facebook from more criticism. Senator Bernie Sanders and Alexei Navalny, the Russian opposition leader, are among those who have expressed concern about social-media platforms censoring Mr Trump. The OB’s decision “will be cheered by people on the left in the short run,” predicts Matthew Perault, who runs the centre on science and technology policy at Duke University and was formerly Facebook’s director of public policy. “But in the long run, regulators will be scared of what this shows about the company’s ability to choose winners and losers on speech.” According to Mr Perault, the chances of the government eventually taking on big tech by rewriting antitrust, privacy and content rules just shot up.