May 5, 2021—The Oversight Board, which was set up to review decisions by Facebook management, has upheld the social media company’s indefinite ban on Donald Trump, and made the case only the third example of the board upholding a company decision.
The Board found Wednesday that Trump’s rhetoric “created an environment where a serious risk of violence was possible,” and noted that as President, he had an elevated level of influence that the average Facebook user would not have. Based on the size of his reach and the blatant dangerousness of his posts, the Oversight Board said it found that the ban was justified.
Even though Facebook upheld the decision, it did not condone what the board called “indeterminate and standardless penalty of indefinite suspension.” The Board considered the uncertainty of this ban to be in violation of Facebook’s terms of service, and that banned users should be provided a clear, published procedure that precisely addresses their violation.
In a post to their website’s blog, the Oversight Board condemned Facebook’s actions as shirking responsibility, “In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities. The Board declines Facebook’s request and insists that Facebook apply and justify a defined penalty.”
The Board insisted that Facebook revaluate the case within six months of Wednesday’s decision.
Out of the nine cases the Oversight Board has so far considered, it has overturned six and upheld two (the Board did not arrive at a verdict for one case). Trump’s case became the third decision upheld by the Oversight Board.
Oversight Board recommendations
The Board also offered a series of policy recommendations and observations. They encouraged Facebook to not draw distinctions between politicians and other influential users. The Board stated that users with a significant following are capable of serious harm, regardless of whether they are a politician. The Board advised Facebook to strike hard and fast to enforce rules for influential users.
The Board pushed back against Facebook’s explanation for its failure to enforce its rules against Trump sooner. Facebook had argued that even though Trump may have been in violation by Facebook’s TOS, Facebook considered his content newsworthy. The Board stated the newsworthiness should not take precedent over the TOS, and that a failure to recognize this led to confusion and uncertainty.
The Board, in a blog post, also proposed nine other recommendations.
Rep. Frank Pallone, D-New Jersey, took to Twitter to criticize Facebook, tweeting: “Donald Trump has played a big role in helping Facebook spread disinformation, but whether he’s on the platform or not, Facebook and other social media platforms with the same business model will find ways to highlight divisive content to drive advertising revenues.”
Pallone followed up by accusing Facebook of “amplifying and promoting disinformation and misinformation,” and stated that the Oversight Board is ignoring this. He concluded by saying that Facebook will only ever be held accountable with legislation.
Trump’s exodus from social media back in January of 2021 sent ripples throughout the tech world. Facebook was not the only company to deplatform the then-sitting president. Facebook’s Instagram, Twitter, Reddit, Twitch, YouTube, Snapchat, and a slew of others banned either Trump himself or communities that his followers used to communicate.
Questions surrounding the “tyranny of Big Tech,” antitrust policy, and free speech were at the forefront of political discussion, particularly for Republicans.
On Tuesday, Trump’s new social-media-esque platform went live. Hosted on donaldjtrump.com and called, “From the Desk of Donald Trump,” it resembles a Twitter feed that users can interact with by sharing to Facebook or Twitter. Users may also “like” posts directly on the site.
Americans Should Look to Filtration Software to Block Harmful Content from View, Event Hears
One professor said it is the only way to solve the harmful content problem without encroaching on free speech rights.
WASHINGTON, July 21, 2022 – Researchers at an Internet Governance Forum event Thursday recommended the use of third-party software that filters out harmful content on the internet, in an effort to combat what they say are social media algorithms that feed them content they don’t want to see.
Users of social media sites often don’t know what algorithms are filtering the information they consume, said Steve DelBianco, CEO of NetChoice, a trade association that represents the technology industry. Most algorithms function to maximize user engagement by manipulating their emotions, which is particularly worrisome, he said.
But third-party software, such as Sightengine and Amazon’s Rekognition – which moderate what users see by bypassing images and videos that the user selects as objectionable – could act in place of other solutions to tackle disinformation and hate speech, said Barak Richman, professor of law and business at Duke University.
Richman argued that this “middleware technology” is the only way to solve this universal problem without encroaching on free speech rights. He suggested Americans in these technologies – that would be supported by popular platforms including Facebook, Google, and TikTok – to create the buffer between harmful algorithms and the user.
Such technologies already exist in limited applications that offer less personalization and accuracy in filtering, said Richman. But the market demand needs to increase to support innovation and expansion in this area.
Americans across party lines believe that there is a problem with disinformation and hate speech, but disagree on the solution, added fellow panelist Shannon McGregor, senior researcher at the Center for Information, Technology, and Public Life at the University of North Carolina.
The conversation comes as debate continues regarding Section 230, a provision in the Communications Decency Act that protects technology platforms from being liable for content their users post. Some say Section 230 only protects “neutral platforms,” while others claim it allows powerful companies to ignore user harm. Experts in the space disagree on the responsibility of tech companies to moderate content on their platforms.
Experts Reflect on Supreme Court Decision to Block Texas Social Media Bill
Observers on a Broadband Breakfast panel offered differing perspectives on the high court’s decision.
WASHINGTON, June 2, 2022 – Experts hosted by Broadband Breakfast Wednesday were split on what to make of the Supreme Court’s 5-4 decision to reverse a lower court order lifting a ban on a Texas social media law that would have made it illegal for certain large platforms to crack down on speech they deem reprehensible.
The decision keeps the law from taking affect until a full determination is made by a lower court.
During a Broadband Live Online event on Wednesday, Ari Cohn, free speech counsel for tech lobbyist TechFreedom, argued that the bill “undermines the First Amendment to protect the values of free speech.
“We have seen time and again over the course of history that when you give the government power to start encroaching on editorial decisions [it will] never go away, it will only grow stronger,” he cautioned. “It will inevitably be abused by whoever is in power.”
Nora Benavidez, senior counsel and director of digital justice and civil rights for advocate Free Press, agreed with Cohn. “This is a state effort to control what private entities do,” she said Wednesday. “That is unconstitutional.
“When government attempts to invade into private action that is deeply problematic,” Benavidez continued. “We can see hundreds and hundreds of years of examples of where various countries have inserted themselves into private actions – that leads to authoritarianism, that leads to censorship.”
Principal at McCollough Law Firm Scott McCollough said Wednesday that he believed the law should have been allowed to stand.
“I agree the government should not be picking and choosing who gets to speak and who does not,” he said. “The intent behind the Texas statute was to prevent anyone from being censored – regardless of viewpoint, no matter what [the viewpoint] is.”
McCollough argued that this case was about which free speech values supersede the other – “those of the platforms, or those of the people who feel that they are being shut out from what is today the public square.
“In the end it will be a court that acts, and the court is also the state,” McCollough added. “So, in that respect, the state would still be weighing in on who wins and who loses – who gets to speak and who does not.”
Chief policy officer of social media platform Parler Amy Peikoff said Wednesday that her primary concern was “viewpoint discrimination in favor of the ruling elite.”
Peikoff was particularly concerned about coordination between state agencies and social media platforms to “squelch certain viewpoints.”
Peikoff clarified that she did not believe that the Texas law was the best vehicle to address these concerns, however, stating instead that lawsuits – preferably private ones – be used to remove the “censorious cancer,” rather than entangling a government entity in the matter.
“This cancer grows out of a partnership between government and social media to squelch discussion about certain viewpoints and perspectives.”
Wednesday, June 1, 2022, 12 Noon ET – BREAKING NEWS EVENT! – The Supreme Court, Social Media and the Culture Wars
The Supreme Court on Tuesday blocked a Texas law that would ban large social media companies from removing posts based on the views they express. Join us for this breaking news event of Broadband Breakfast Live Online in which we discuss the Supreme Court, social media and the culture wars.
- Scott McCollough, Attorney, McCollough Law Firm
- Amy Peikoff, Chief Policy Officer, Parler
- Ari Cohn, Free Speech Counsel, TechFreedom
- Nora Benavidez, Senior Counsel and Director of Digital Justice and Civil Rights at Free Press
- Drew Clark (presenter and host), Editor and Publisher, Broadband Breakfast
- Supreme Court decision on HB 20, May 31, 2022
- Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms, Broadband Breakfast, May 31, 2022
- Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021
- Parler Policy Exec Hopes ‘Sustainable’ Free Speech Change on Twitter if Musk Buys Platform, Broadband Breakfast, May 16, 2022
- Experts Warn Against Total Repeal of Section 230, Broadband Breakfast, November 22, 2021
- Broadband Breakfast Hosts Section 230 Debate, Broadband Breakfast, June 1, 2021
W. Scott McCollough has practiced communications and Internet law for 38 years, with a specialization in regulatory issues confronting the industry. Clients include competitive communications companies, Internet service and application providers, public interest organizations and consumers.
Amy Peikoff is the Chief Policy Officer of Parler. After completing her Ph.D., she taught at universities (University of Texas, Austin, University of North Carolina, Chapel Hill, United States Air Force Academy) and law schools (Chapman, Southwestern), publishing frequently cited academic articles on privacy law, as well as op-eds in leading newspapers across the country on a range of issues. Just prior to joining Parler, she founded and was President of the Center for the Legalization of Privacy, which submitted an amicus brief in United States v. Facebook in 2019.
Ari Cohn is Free Speech Counsel at TechFreedom. A nationally recognized expert in First Amendment law, he was previously the Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education (FIRE), and has worked in private practice at Mayer Brown LLP and as a solo practitioner, and was an attorney with the U.S. Department of Education’s Office for Civil Rights. Ari graduated cum laude from Cornell Law School, and earned his Bachelor of Arts degree from the University of Illinois at Urbana-Champaign.
Nora Benavidez manages Free Press’s efforts around platform and media accountability to defend against digital threats to democracy. She previously served as the director of PEN America’s U.S. Free Expression Programs, where she guided the organization’s national advocacy agenda on First Amendment and free-expression issues, including press freedom, disinformation defense and protest rights. Nora launched and led PEN America’s media-literacy and disinformation-defense program. She also led the organization’s groundbreaking First Amendment lawsuit, PEN America v. Donald Trump, to hold the former president accountable for his retaliation against and censorship of journalists he disliked.
Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney. Drew brings experts and practitioners together to advance the benefits provided by broadband. Under the American Recovery and Reinvestment Act of 2009, he served as head of a State Broadband Initiative, the Partnership for a Connected Illinois. He is also the President of the Rural Telecommunications Congress.
As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.
Narrow Majority of Supreme Court Blocks Texas Law Regulating Social Media Platforms
The decision resulted in an unusual court split. Justice Kagan sided with Justice Alito but refused to sign his dissent.
WASHINGTON, May 31, 2022 – On a narrow 5-4 vote, the Supreme Court of the United States on Tuesday blocked a Texas law that Republicans had argued would address the “censorship” of conservative voices on social media platforms.
Texas H.B. 20 was written by Texas Republicans to combat perceived bias against conservative viewpoints voiced on Facebook, Twitter, and other social media platforms with at least 50 million active monthly users.
The bill was drafted at least in part as a reaction to President Donald Trump’s ban from social media. Immediately following the January 6 riots at the United States Capitol, Trump was simultaneously banned on several platforms and online retailers, including Amazon, Facebook, Twitter, Reddit, and myriad other websites.
See also Explainer: With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight, Broadband Breakfast, May 25, 2021
Close decision on First Amendment principles
A brief six-page dissent on the matter was released on Tuesday. Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, arguing that the law should have been allowed to stand. Justice Elena Kagan also agreed that the law should be allowed to stand, though she did not join Alito’s penned dissent and did not elaborate further.
The decision was on an emergency action to vacate a one-sentence decision of the Fifth Circuit Court of Appeals. The appeals court had reversed a prior stay by a federal district court. In other words, the, the law passed by the Texas legislature and signed by Gov. Greg Abbott is precluded from going into effect.
Tech lobbying group NetChoice – in addition to many entities in Silicon Valley – argued that the law would prevent social media platforms from moderating and addressing hateful and potentially inflammatory content.
In a statement, Computer & Communications Industry Association President Matt Schruers said, “We are encouraged that this attack on First Amendment rights has been halted until a court can fully evaluate the repercussions of Texas’s ill-conceived statute.”
“This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law. We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law.”
In a statement, Public Knowledge Legal Director John Bergmayer said, “It is good that the Supreme Court blocked HB 20, the Texas online speech regulation law. But it should have been unanimous. It is alarming that so many policymakers, and even Supreme Court justices, are willing to throw out basic principles of free speech to try to control the power of Big Tech for their own purposes, instead of trying to limit that power through antitrust and other competition policies. Reining in the power of tech giants does not require abandoning the First Amendment.”
In his dissent, Alito pointed out that the plaintiffs argued “HB 20 interferes with their exercise of ‘editorial discretion,’ and they maintain that this interference violates their right ‘not to disseminate speech generated by others.’”
“Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others,” he said, referencing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.
“But we have rejected such claims in other circumstances,” he continued, pointing to PruneYard Shopping Center v. Robins.
Will Section 230 be revamped on a full hearing by the Supreme Court?
“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” Alito said.
Alito argued that there is a distinction between compelling a platform to host a message and refraining from discriminating against a user’s speech “on the basis of viewpoint.” He said that H.B. 20 adopted the latter approach.
Alito went on, arguing that the bill only applied to “platforms that hold themselves out as ‘open to the public,’” and “neutral forums for the speech of others,” and thus, the targeting platforms are not spreading messages they endorse.
Alito added that because the bill only targets platforms with more than 50 million users, it only targets entities with “some measure of common carrier-like market power and that this power gives them an ‘opportunity to shut out [disfavored] speakers.’”
Justices John Roberts, Stephen Breyer, Sonya Sotomayor, Brett Kavanaugh, and Amy Coney Barrett all voted affirmatively – siding with NetChoice LLC’s emergency application – to block H.B. 20 from being enforced.
- FCC Points to Congress on USF, Texas Hires LightBox, Lit Communities Hires Lindsay Miller
- Bryan Darr: An Order of Fiber, Please, with Wireless on the Side
- Tech Policy Conference Panelists Tackle Challenges of Federal Privacy, Antitrust Laws
- Carr ‘Surprised’ by RDOF Denials, ‘New Normal’ on Supply Chain, $68M for Student Connectivity
- Appeals Court Affirms FCC’s Spectrum Authority, FTC Privacy Rulemaking, (Root) Beer and Broadband
- David Flower: 5G and Hyper-Personalization: Too Much of a Good Thing?
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