RACHEL MARTIN, HOST:
Tomorrow, Facebook's independent oversight board is going to announce its biggest decision yet. It'll either uphold or reverse Facebook's indefinite ban on former President Donald Trump. The decision to ban Trump came after the January 6 attack on the U.S. Capitol. Here's what Facebook's vice president for global affairs and communications, Nick Clegg, told NPR back in January.
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NICK CLEGG: We believe we took the right decision. We think it was entirely justified by the unprecedented circumstances on that day.
MARTIN: The board's ruling is expected to set a precedent for how Facebook will treat the accounts of other world leaders and politicians moving forward. So how much control should private platforms have over free speech? We should note, Facebook is among NPR's financial supporters. We've got Kate Klonick with us. She's an assistant law professor at St. John's University in New York and has written about the creation of Facebook's oversight board. Kate, thanks for being here.
KATE KLONICK: Thank you for having me.
MARTIN: So the independent oversight board, this was created through this $130 million investment from Facebook. Who's on the board? How much weight did the board's decision carry?
KLONICK: Yeah, the board is comprised right now of 20 people. They are a wide range of experts in freedom of expression and international human rights. And they're everyone from former prime minister of Denmark to the former editor in chief of The Guardian to a Nobel Peace Prize-winner to former circuit court judges, so it's a really kind of blue-ribbon panel.
MARTIN: This decision, though, we should just say, this is a nonbinding recommendation that the board's going to make, right?
KLONICK: Well, actually, the decision - Facebook has agreed to be bound by the decision; it will be binding on Facebook. But it will make other recommendations likely to Facebook, and those will not be binding.
MARTIN: So the board has so far reviewed only a handful of cases, overturning 4 of 5 Facebook decisions. What do those decisions tell you about the board's potential ruling in the Trump case, if anything?
KLONICK: Yeah, that's a great question. It's pretty much the only thing that we have to go on as to what the decision is going to be tomorrow in Trump's suspension. So far, we know that the board cares a lot about what we call in the law proportionality, the proportion of kind of the underlying offense to the punishment that they're going to have from Facebook, from censorship. And we know that they care a lot about international human rights law, and we know that they care a lot about freedom of expression, but we don't know how that's going to impact when you have special circumstances, like the one that they're dealing with in the Trump case.
MARTIN: Is the choice just to reinstate or keep the ban? Or does the board have leeway to choose letting Trump back on Facebook but with some kind of restrictions?
KLONICK: Yeah, that's a really interesting question, and we have no idea. I know that's, like - it's a very unsatisfying answer. But, basically, the board is setting the tone here for what they're going to do going forward - how much power they're going to have, how much power they're not going to have, whether they're even going to be constrained by how the question was posed to them with Facebook. And Facebook just spent $130 million dollars and a year and a half, two years, constructing this board to deal with questions like this independently and reliably and with transparency, and so if they don't pay attention to what the board has to say, it's going to kind of be a very - it's going to be a very difficult position that they're going to be in.
MARTIN: How might tomorrow's decision create some kind of precedent that other social media platforms would follow?
KLONICK: Yeah, I think that's going to be the most interesting thing, honestly, because you have Twitter, who has decided also to take Trump off the platform and Jack Dorsey saying that it's going to be a permanent suspension. You have Facebook with their indefinite suspension and then sending it to the board. But Twitter, obviously, doesn't have something like the oversight board. They've gone a different way. They're working on Birdwatch and other types of API modifications to their platform to deal with the content moderation problem. And it'll be really interesting to see if Twitter decides to use this as basically a differentiation from Facebook in the marketplace and to basically make a pitch - like, we won't let him back on our platform, or we will let him back on our platform; we're not going to be like Facebook.
MARTIN: Can I put you on the spot? I mean, you spent a lot of time investigating Facebook and the oversight board. What's your gut tell you on the decision?
KLONICK: I think that if they decide to go with what I think everyone's expecting, which is an up-or-down decision, they're going to reinstate him. But if they decide to go a little bit bigger, I think this could be a very important procedural case from a legal perspective and one that sets a longer-term tone.
MARTIN: We'd love to have you back to talk about the upshot of all this. Kate Klonick, assistant law professor at St. John's University in New York. Thank you.
KLONICK: Thank you.
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