After months of waiting, today Facebook’s Oversight Board finally handed down the biggest ruling of its short existence — the question of whether to uphold the ban on Donald Trump. The verdict? Send the question back to Facebook, and give them six more months to decide.
In fairness, it wasn’t quite that bad. The initial ban was upheld, and the board made specific rulings on the questions of whether Trump’s posts were inciting violence, and whether world leaders should get special treatment. For now, Facebook can continue to block Trump, which means that on the face of it, this is a win for anti-Trumpers. Unless you’re visiting his self-hosted website, you’ll remain blessedly safe from Trump posts.
But the ruling also went out of its way to avoid settling the long-term question of whether Facebook is allowed to permanently ban leaders like Trump. The board found the initial ban was justified since Trump’s January 6th posts really did incite violence — but it wasn’t enough to justify a permanent ban. So even as the board affirmed the initial ban, it called on Facebook to set a new policy for how and when Trump could regain Facebook access.
“It is not permissible for Facebook to keep a user off the platform for an undefined period, with no criteria for when or whether the account will be restored,” the ruling reads.
In practical terms, that means Facebook is going to keep litigating the specifics of the Trump ban for at least the next six months, and probably a whole lot longer. Facebook has until October to come up with a specific policy to justify the ban, to be put in place across the platform. But that policy will likely need more review from inside Facebook once it’s developed, and then another round of appeal to the Oversight Board. Then Trump can try to get back on Facebook (or make just enough effort to justify restarting his feud with the platform), and there will need to be another round of reviews on that, too.
And of course, because none of the Oversight decisions are binding on Facebook, the company is free to delay past any of those deadlines if it wants more time. In a statement after the decision, the progressive group Common Cause described it as “an endless cycle of uncertainty,” and it’s hard to disagree. The process could easily stretch through the 2024 election, and given the political interests involved, it’s not clear how it could ever fully resolve.
If you were hoping to stop talking about Donald Trump online, this is close to a worst-case scenario. The moderation merry-go-round is a political liability for Facebook, and the longer it goes unresolved, the more anger will be stirred up against the platform. The point of founding the Oversight Board was to shovel some of that responsibility onto another group, but this decision puts the ball right back in Facebook’s court. You can already see conservative media figures using the ruling to take shots at the company — and I’m sure lots of Facebook employees are shuddering at the prospect of doing it all again in six months.
But there’s a deeper logic to the ruling, one that benefits both the Oversight Board and Facebook itself. As a Pew Research poll showed this morning, America is split over the question of whether Trump should be on Facebook, and a final ruling is sure to alienate one side or another. So from Facebook’s perspective, the less final this ruling is, the better. What looks like kicking the can down the road is really just leaving the door open for the losing side. Republicans who are mad can make their case to the board and have their opinions heard — whether it does them any good or not. And the next time Mark Zuckerberg is called before Congress, he can tell Republicans he’s working on a final policy that will get Trump back online. When he’s called a year later (or two years, or five years), he can say the same thing.
Platforms love keeping policy questions in limbo this way, in part because making a firm decision is so likely to cause trouble. Look at Twitter, which is always “thinking about” new features like editable tweets or paid subscriptions, but never seems to launch them. Or look at Facebook’s own behavior in politically unstable countries like Sri Lanka and Myanmar, where civil society groups said they worked with the platform for years without ever getting a real response to their demands. Making a decision means taking sides — and for a platform built on scale, that gambit rarely pays off.
You can see the same logic working in the Oversight Board itself. The board is slightly better positioned than Facebook to make unpopular decisions, but it’s still been careful to guard its credibility. The rulings so far have mostly made fine distinctions on existing policies, whether it’s ethnic slurs in Russia or not-quite hate speech in Burma. If the board makes an unpalatable decision — either kicking Trump off the platform permanently or, worse, letting him back on — it would face the same problem as Facebook: potentially losing credibility with an entire portion of Facebook’s user base. Better to kick the can down the road, “keep thinking,” and never land too hard on any one ruling.
That’s not to say the Oversight Board won’t do anything unpopular. Today’s ruling has already made a lot of conservatives angry, just as the initial ban did. Plotting a middle course doesn’t mean no one will be angry, and there will surely be more moments in the future when Facebook’s refusal to take sides makes one side particularly angry. But if you’re looking for certainty or finality from the Oversight Board’s appeal system, you’re looking in the wrong place. For now, the performative pondering of hard questions is just too convenient to give up.
