The Volokh Conspiracy
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From Prof. Michael McConnell: Meta Oversight Board Steps Up To Protect Conservative Political Speech
I'm delighted to pass along this item from my Hoover Institution colleague Michael McConnell, who is also a professor at Stanford Law School and the co-chair of the Facebook Oversight Board:
Increasingly, the most significant gatekeepers for political speech are not elected governments or courts, but the social media companies that control Facebook, Instagram, Threads, YouTube, X, and the like. That is why I signed on to co-chair Meta's independent Oversight Board, which handles appeals from users and referrals from the company in high-profile cases from all over the world. Necessarily, the Board cannot take a large number of cases; it decided just over 50 last year and is on track to decide a few more this year. The hope (and I think to some extent the reality) is that these high-profile cases, most of which have reversed Meta's original decision, will have an impact on the content moderation system as a whole.
Conservatives in the United States have long complained that the social media companies discriminate against right-of-center speech. It is hard to know how systemic this problem might be, because there are no good data—but there certainly are disturbing examples. Even Mark Zuckerburg has admitted that, in hindsight, the censorship of, for example, the Hunter Biden Laptop story, was wrong, and that the company has been too ready to comply with Administration demands to take down posts based on claims about misinformation and disinformation. In all likelihood, this ideological discrimination, to the extent it exists, is a product less of deliberate company policy than the tendency of on-the-ground content moderators (who are typically drawn from the Bay Area technocracy, which is not evenly divided between the parties) to make close calls in a way that skews left.
People wonder why, then, there have been relatively few interventions by the Oversight Board to protect right-of-center users from suppression of their speech on the platform. Based on my experience, there are at least two reasons. First, when users point out obvious errors in taking down legitimate posts, Meta's internal system often corrects the decision within a few days or a week. A few days or a week is long enough to do the harm; speech on political issues is usually stale after that time has passed. But if errors are corrected in that time frame, the case will never come to the Oversight Board.
Second, it is my impression that many conservatives have persuaded themselves that institutions like the Oversight Board are part of the left-progressive blob, and that it would be a pointless waste of time to appeal. A number of times when I have read complaints in the media about biased content moderation and have inquired why the users did not take their complaint to the Board, I hear some version of this response.
That is why the Oversight Board decision today is so important. In August, a Facebook user posted a satirical picture based on the movie "Dumb and Dumber," substituting the faces of Kamala Harris and Tim Walz. Facebook removed the post under its Bullying and Harassment Community Standard, apparently because the two figures were portrayed (as in the movie) touching each other's nipples through their clothing. The case was quickly brought to the Oversight Board, which used summary procedures to get a decision out before the election. The Board concluded, unsurprisingly, that this political message was protected speech, and Facebook has complied. The full decision can be found here.
I hope this will signal that people of all political stripes, including conservatives, can get help when overenforcement of Meta's content standards results in suppression of legitimate speech. And I hope that, like other Oversight Board decisions, this will reenforce to Meta content moderators that they need to be more careful when taking down political speech. The Oversight Board process may appear clunky, but it is worth the effort.
