The R Street Institute respectfully submits these comments in response to the request for public comment issued by the Facebook Oversight Board in connection with its consideration of the decision by Facebook pertaining to Donald J. Trump referenced in Case No. 2021-001-FB-FBR. R Street is of the view that: a) context, and therefore case-by-case adjudication is critical to a valid and appropriate adjudication of the issues presented; b) that an operationalized framework is necessary to particularize more finely the considerations applicable to content moderation decisions; and c) that the same framework applicable to private citizens ought to be applied to political actors, with due regard for the different context in which their expression arises.

There is no universally accepted content moderation framework guiding Facebook’s practices or the Oversight Board’s subsequent analysis. Facebook is a private corporation, not a government, and is free to adopt any legal content moderation practices that suit its community and culture. The Oversight Board is chartered to “review content enforcement decisions and determine whether they were consistent with Facebook’s content policies and values,” and “will pay particular attention to the impact of removing content in light of human rights norms protecting free expression.” In practice, Facebook and the Oversight Board have made, perhaps implicitly, a determination to apply principles of international human rights law (IHRL). R Street concurs that IHRL is a reasonable source for the Board’s decision-making and its review of Facebook’s actions. We believe, however, that most IHRL is stated at too-high-a-level of generality to be of significant practical usefulness to the Board and inadequately specific to provide guidance to Facebook and notice to users as to how content decisions will be made.

Framework Factors — We, therefore, offer a framework for suggested analysis that identifies neutral principles and factors on which we believe the Board should rely for its decision-making. In doing so, we are cognizant of the fact that multifactor tests are, themselves, somewhat ambiguous and even sometimes subject to manipulation. Nevertheless, we believe that experience in both domestic and international legal systems over the past 50 years has demonstrated the utility of explicitly identifying relevant factors and issues for consideration in rendering judgment. The exposition of factors and their application to various fact-based scenarios will allow the development of, in effect, a common law of content moderation and, over time, provide greater transparency and clarity in evaluating Facebook’s actions and the Board’s responses:

President Trump – While the question before the Board pertains to prohibiting Trump from future posting, his final posts serve as background for our analysis. Based on the foregoing factors, Facebook’s decision to remove those posts and prohibit former President Trump from future posting was well justified. His posts about the election were demonstrably false and, in the real-world context of heightened political tension, especially inflammatory and harmful. Not only was violence imminent, but it was ongoing at the time the content was posted and, in context, could reasonably be read as an incitement to further violence. Particularly in the context of violent acts intended to disrupt the lawful transition of government authority, Trump’s content was an incitement to lawless action. Finally, Facebook had every reason to determine that alternative sanctions short of prohibiting future posts would not mitigate present or future harm.

R Street believes that it is reasonable to justify indefinite suspension by determining that Trump has a continuing political and public role and will continue to post content worth removing under these same factors. It seems clear to us that he has expressed no contrition and that the deterrence of other like-minded actors would be a positive benefit. However, this is ultimately a predictive judgment; restoring his posting privileges is defensible under different predictions. Even then, we would encourage any future restoration to include strict warnings regarding further harmful activity, with permanent suspension as the final escalatory step.

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