The Volokh Conspiracy

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The Per Curiam Facebook Oversight Board

Opinions are unsigned, and members of the "minority" are unnumbered.


Today the Facebook Oversight Board released its decision concerning the termination of Donald Trump's account. I am largely uninterested in the reasoning adopted by this non-judicial body. I view it as little more than a glorified law review article. Indeed, nine of the twenty members are academics. And these academics expressly rejected the jurisprudence I am most familiar with: the First Amendment. Rather, they favored a body of law I know very little about. Eugene observed that the Board gravitated towards principles of international law. When I read the word "proportionality," my eyes glaze over.

The decision also had other European features. The majority opinion is not signed. Nor is there a signed dissent. Rather, the opinion includes a "procedural note"

The Oversight Board's decisions are prepared by panels of five Members and approved by a majority of the Board. Board decisions do not necessarily represent the personal views of all Members.

We are left with a per curiam decision that refers to an unnamed "minority" view. Really, this opinion is not a law review article. Most forms of scholarship are signed. We have no idea who wrote this opinion. We have no idea who disagreed with it. For all we know, Michael McConnell, the lone conservative in the group, dissented. We will never find out. I suppose one of the plus sides is that the authors will be immune from public criticism for their decision. And they will not be trolled online for their actions–unlike virtually everyone else in the world. One of the reasons why tenure protections are afforded is to promote judicial independence. But now, the Oversight Board hides behind a fancy moniker.

Finally, one other note on the substantive issue. For the reasons Eugene explained, I am sensing a schism. More and more libertarians are trending towards the position that social media companies should be treated similar to phone companies. These sites seem to be viewed as different in kind from other types of private entities. These tech giants may be viewed as expressive forums, as distinguished from government-designated public forums. I hope to write more about this issue in due course.

My frequent co-author Randy Barnett wrote some useful threads on this issue.

Update: Professor Mike Rappaport wrote a relevant essay in January, titled Can a Classical Liberal Support Big Tech Regulation? Here is a snippet:

In sum, the reasons that justify prohibiting discrimination by monopolists under classical liberalism also often justify prohibiting big tech from discriminating based on political ideology. Such a prohibition would prevent big tech from coercing people as to their political views. While some classical liberals might still oppose a nondiscrimination requirement based on policy, one cannot argue that the requirement violates classical liberal principles.

And earlier today, I appeared on the Fox affiliate in Houston to discuss the Oversight Board's decision.