Can Facebook meaningfully have a Supreme Court?
The title of a new feature in The New Yorker, written by law professor Kate Klonick, implies that the answer is yes. The story is more complicated.
The feature is called “Inside the making of Facebook’s Supreme Court,” and it’s an unprecedentedly detailed look at the Facebook Oversight Board, a Facebook-funded semi-independent panel that can overrule Facebook takedown decisions. The Oversight Board launched in October, and it issued its first decisions in January, saying Facebook had made the wrong call on four removed posts. In the coming months, it will make its highest-profile decision to date: whether Facebook should restore the account of former president Donald Trump. But as Klonick lays out, its actual power is complex and contested.
Klonick writes candidly about months of heated debate over how the Oversight Board should function. Internally, Facebook employees worried that if the board could write policy, it might make a decision that destroyed Facebook: what if, one person speculated, it told Facebook to get rid of the News Feed? Externally, it faced pressure from conservative politicians. One group reportedly asked Facebook to add Trump’s children to the Oversight Board, and when the members were announced, Trump apparently called CEO Mark Zuckerberg to rail against them.
But the biggest power struggle in the story isn’t any individual policy decision; it’s the protracted attempt to legitimize a Facebook quasi-government. Interestingly, Klonick mentioned on Twitter that Facebook “hated” the Supreme Court framing — even if “that’s how the public thinks of it.” But Zuckerberg mused about a system “like a Supreme Court” in 2018, and Klonick notes that the board’s charter was referred to internally as a “constitution.” In perhaps the story’s funniest detail, members “used pens topped with a feather, to evoke the quills used by the Founding Fathers.” (Sadly, “topped” implies they wouldn’t commit to actual quill pens.)
Parts of the story’s framing have drawn objections from some critics and legal scholars. After all, the board doesn’t have formal legal power — it exists because Facebook is voluntarily abiding by its rules. “Facebook and others have been appropriating legal/civic language and frameworks from the beginning. It has always, ALWAYS been about declaring legitimacy,” tweeted New York Times reporter John Herrman.
That legitimacy comes partly from Facebook’s ability to pull critics into its orbit. Knight First Amendment Institute director Jameel Jaffer tells Klonick he turned down a spot on the board, and he’s anxious that Facebook is “co-opting” people who might push for change from the outside. Journalist and professor Zeynep Tufekci notes that the Oversight Board could meaningfully improve moderation, but “it is being rolled out BY FACEBOOK as part of a PR push, with Facebook trying to elbow it into a position where we treat it as a ‘Supreme Court’ despite the obvious.”
The Trump case will put the Oversight Board and its limitations in the spotlight. (The Knight Institute has asked it to delay the decision for an outside review.) And it will do so as Congress looks at whether to regulate Facebook the old-fashioned way — with a government the social giant didn’t build.