On Jan. 7, Facebook suspended President Donald Trump, striking a significant blow to his ability to communicate with the public. Banning him permanently from the platform would be a mistake.
An independent review board of activists, lawyers and journalists known as the Facebook Oversight Board has been considering the question of whether Trump’s de facto ban was justified and whether he should be permanently excluded or allowed back on the platform. The oversight board has ruled that the original suspension was legitimate, but also that suspending him for an unspecified period is not.
This isn’t a good outcome for free speech.
The remedy for bad speech is more speech, so the argument goes. And that adage holds true even when it’s the president of the United States spouting falsehoods.
Facebook should post fact checks of Trump’s content and remove posts that violate fair, clearly articulated standards. Banning Trump altogether goes too far. Trump, for better or worse, is a part of the debate. Because he says things that are false or controversial, it does not follow that his presence on this platform should be banned. This is a draconian reduction of free speech.
Facebook is a publishing platform, and an outsized publishing platform at that. It is a megaphone by which users can reach millions of people directly. The law has not yet caught up to social media giants, which never could have been anticipated by the Founding Fathers, and for now they remain largely unregulated. Publishers have a right and a duty, therefore, to curate and mediate the content that appears on their platforms. Facebook already employs independent fact checkers to help police this online forum for rule violations. Clearer rules and more and better self-policing are the way forward.
The former president’s critics claim that the justification for his ban is that he incited an insurrection. Incitement of imminent lawless action is not protected by the First Amendment. The question of whether Trump violated that standard will play out in the judicial system, as it should. Social media companies should not mete out their own pre-emptive justice.
The Facebook Oversight Board did just that when it argued that Trump’s initial suspension was justified because his posts “created an environment where a serious risk of violence was possible.” There is no mechanism in Facebook’s terms of use that suggest that someone should be permanently banned due to such language.
Moreover, if this is the standard that the company wishes to uphold, it should do so evenhandedly. The Black Lives Matter protests and riots of 2020 also were fomented by politicians and journalists, none of whom faced similar banishment. A specific, fairly enforced standard would help quell those arguing that Facebook’s curation and fact-checking is biased on partisan lines.
The oversight board ducked the ultimate decision of whether to permanently ban Trump and called on Facebook to decide over the next six months whether to restore his account, make the suspension permanent or suspend him for a specific period of time.
This means there is still opportunity for the company to do the right thing and allow Trump back on the platform. His posts should be fact-checked and held to account. But the man himself should not be banned. He should be able to speak.