Forthcoming Harvard Law Review Forum Volume 135
29 Pages Posted: 3 Apr 2021
Date Written: March 15, 2021
The Facebook Oversight Board’s decision about the suspension of Donald Trump’s account is different from the Board’s other cases because it interests states. The ‘Trump Ban’ case affects the Board’s reputation and Facebook’s relationships with states and publics. We will not understand the case’s impact if we do not understand these relationships.
Scholarship about social media platforms discusses their relationship with states and users. The Essay is the first to expand this theorization to account for differences among states, the varying influence of different publics and the internal complexity of companies. Theorizing Facebook’s relationships this way includes less influential states and publics that are otherwise obscured. It reveals that Facebook engages with states and publics through multiple, parallel regulatory conversations, further complicated by the fact that Facebook itself is not a monolith. This Essay argues that Facebook has many faces – different teams working towards different goals, and engaging with different ministries, institutions, scholars and civil society organizations. Content moderation exists within this eco-system.
This Essay’s account of Facebook’s faces and relationships shows that less influential publics can influence the company through strategic alliances with strong publics or powerful states. It also suggests that Facebook’s carelessness with a seemingly weak state or a group, may affect its relationship with a strong public or state that cares about the outcome.
To be seen as independent and legitimate, the Oversight Board needs to show its willingness to curtail Facebook’s flexibility in its engagement with political leaders where there is a real risk of harm. This Essay hopes to show Facebook that the short-term retaliation from some states may be balanced out by the long-term reputational gains with powerful publics and powerful states who may appreciate its willingness to set profit-making goals aside to follow the Oversight Board’s recommendations.
Keywords: social media, Facebook, regulation, self-regulation, Facebook Oversight Board, legitimacy, Donald Trump, account suspension, incitement to violence, hate speech
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