Academic and media discussions typically frame the Facebook Oversight Board as the ‘Supreme Court of Facebook’ -- this is, however, deeply misleading.
Continuing to use this analogy so prominently in fact only aids Facebook’s self-serving corporate PR narratives, and ultimately obscures more relevant issues and research.
The idea of a “Supreme Court for Facebook” was first raised in January 2018 by Noah Feldman, a US constitutional law professor and friend of Facebook COO Sheryl Sandberg. CEO Mark Zuckerberg liked Feldman’s idea of creating a body of independent experts to review Facebook’s most significant and controversial content moderation decisions, and officially announced the launch of the Facebook Oversight Board later that year. Facebook generously funded a trust to ensure the Board’s financial independence, created a charter and bylaws, and in May 2020, announced the Board’s first 20 members: an illustrious list including a former prime minister, a Nobel Prize-winning press freedom activist, and several legal academics and former judges. In January, the Board was directed by Facebook to review the company’s controversial decision to suspend then-US President Donald Trump’s account. Shortly afterwards, it announced its decisions on its first five cases. This has attracted another wave of media and scholarly attention.
Commentators on these events typically echo Feldman’s original description of the Board as a “court,” and accordingly use legal vocabulary to describe it. The influential American blog Lawfare, which publishes extensively about social media and speech regulation, has even adopted this terminology wholesale. A recent post by evelyn douek, a leading expert on content moderation, discusses the Board’s “jurisprudence,” while another by deputy editor Jacob Schulz introduces it to unfamiliar readers as “a nascent court-like review board.” According to a Lawfare team, the upcoming Trump decision “may turn out to be a comparable milestone” to Marbury v. Madison, the seminal US case establishing the Supreme Court’s power to strike down legislation. The Marbury v. Madison comparison has also been made on Twitter by legal academics James Grimmelmann and Nate Persily, and has subsequently been picked up in national news coverage.
This is not just a question of social media chatter: douek and Kate Klonick, pre-eminent scholars of online speech regulation, have also adopted the court framing in their academic research on the Board. Klonick’s article investigating the Board’s formation has a whole section which “focuses on the analogy between the Board and a court to contextualize and understand the Board and to identify ways in which Facebook’s governance might be effectively restrained.” douek calls it “one of the most ambitious constitution-making projects of the modern era” and explicitly compares its term lengths, diversity, and review powers to those of the US Supreme Court, as well as discussing its “case law” and “judicial legitimacy.”
All these scholars are careful to point out that Facebook is not a government and the Board is “self-evidently, not an actual court.” However, this disclaimer is overshadowed by pages of analysis which compare it to one. Although they acknowledge many ways in which the Board does not resemble a court (such as the lack of democratic legitimacy for the rules it applies and the non-binding nature of its recommendations) a court is always the first point of comparison. Highlighting a few differences between the Board and a real court only serves to reinforce the idea that they are generally similar.
Although the work of these scholars is invaluable for our understanding of the Board’s functioning, capabilities, and potential consequences, describing it primarily as (or by analogy to) a court is problematic. The language we use to discuss policy issues matters: as science and technology studies scholar Claudia Schwarz-Plaschg notes, analogies “restrict [imagination] by framing emerging technologies in specific ways,” and are frequently “constructed by already powerful actors to legitimise political actions.” In this case, the “Supreme Court” terminology has strategic value for Facebook. It echoes Zuckerberg’s notorious claim that “Facebook is more like a government than a traditional company” (used to justify his unaccountability to shareholders), and the company’s strategic insistence that its user base is a unified global community. Describing the Board as a court implicitly portrays it as an institution with legitimate authority, acting to safeguard the public interest. This helps Facebook maximise the Board’s PR value, and thus legitimise its own power over online discourse.
Language also influences the substance of academic research. For example, douek argues the Board’s creation “raises the same question that comparative constitutional literature has grappled with: why do dictators allow courts any degree of judicial independence?” She draws on this literature to analyse why, by analogy, an all-powerful CEO would create an independent oversight board. Yet this analysis by analogy is arguably unnecessary, as an extensive body of literature already exists which analyses why private companies create self-regulatory institutions, and in what circumstances such institutions are effective. Media scholar and noted Facebook critic Siva Vaidhyanathan has gestured to this in an op-ed, suggesting that a self-regulatory body which only oversees a single company and makes non-binding recommendations is unlikely to have much effect. This body of work seems more immediately relevant than constitutional law literature. Klonick acknowledges that “the analogy to a court is valuable, but also imperfect.” The problem is that the overwhelming reliance on this analogy is excluding other analogies (or, indeed, literal descriptions) which might be more valuable.
Framing the Facebook Oversight Board as an institution of voluntary corporate self-regulation rather than a court would facilitate more productive academic debates, informed by the previous literature on industry and media self-regulation. It would also more accurately capture the context in which the Board operates. Ultimately, it should be underscored that the Board has been set up by Facebook to serve its own commercial interests, in keeping with all of the internal company policies (not laws) on which it rules. Describing the Board in terms of self-regulation – which can be complemented or replaced by actual regulation – could also be helpful in shifting attention away from the minutiae of how Facebook chooses to run its platform, and back to more important terrain. As Klonick’s own work highlights, social media companies do not make decisions in a vacuum: their governance structures are decisively shaped by legal and economic incentives, which are ultimately the responsibility of democratic governments to regulate. The most urgent question for legal scholarship on social media is not what we expect from a private company, accountable to its shareholders – it is what we should be asking of the governments we elect.