Here's the link to the full Facebook decision, which requires Facebook to reexamine Trump's "indefinite" expulsion within 6 months and come up with a standard for a "proportionate" penalty. oversightboard.com/decision/FB-69… Perhaps permanent removal IS proportionate in this case.More soon
"If Facebook decides to restore Mr. Trump’s accounts, the company should apply its rules to that decision, including any changes made in response to the Board’s policy recommendations below. ...
"...In this scenario, Facebook must address any further violations promptly and in accordance with its established content policies. "
🚨"A minority of the Board emphasized that Facebook should take steps to prevent the repetition of adverse human rights impacts and ensure that users who seek reinstatement after suspension recognize their wrongdoing and commit to observing the rules in the future."
"If Facebook identifies that the user poses a serious risk of inciting imminent violence, discrimination or other lawless action at that time, another time-bound suspension should be imposed when such measures are necessary to protect public safety and proportionate to the risk."
Key board recommendation: "Undertake a comprehensive review of Facebook’s potential contribution to the narrative of electoral fraud and the exacerbated tensions that culminated in the violence in the United States on January 6. ...
"...This should be an open reflection on the design and policy choices that Facebook has made that may allow its platform to be abused."
Factual finding from Oversight Board: " Prior to January 6, then-President Donald Trump had asserted without evidence that the November 2020 presidential election had been stolen. "
Trump gave a statement to the Oversight Board. That "statement also addresses the 'Capitol incursion.' It states that 'all genuine Trump political supporters were law-abiding' and that the incursion was 'certainly influenced, and most probably ignited by outside forces.'"
The Board finds that suspension of Trump was justified given the statements made while violence was occurring in the U.S. Capitol on Jan. 6:
Board divides on whether it should reach question (because Facebook didn't rely on it) whether Trump violated standards against incitement to violence. Minority of board reached question and found that he did.
Unanimous Board holds that Trumps 2 Jan. 6/7posts "severely violated Facebook policies:" "The user praised and supported people involved in a continuing riot where people died, lawmakers were put at serious risk of harm, and a key democratic process was disrupted."
On Jan 7, "the situation was fluid and serious safety concerns remained. Given the circumstances, restricting Mr. Trump’s access to Facebook and Instagram past January 6 and 7 struck an appropriate balance in light of the continuing risk of violence and disruption"
"however, Facebook’s decision to make those restrictions 'indefinite' finds no support in the Community Standards and violates principles of freedom of expression."
Minority reaches question whether Trump violated "dignity" standard: "The minority considers below that previous posts on the platform by Mr. Trump contributed to racial tension and exclusion and that this context was key to understanding the impact of Mr. Trump’s content."
Unanimous board: "Facebook has become a virtually indispensable medium for political discourse, and especially so in election periods. It has a responsibility both to allow political expression and to avoid serious risks to other human rights."
Key: "The Board sought clarification from Facebook about the extent to which the platform’s design decisions, including algorithms, policies, procedures and technical features, amplified Mr. Trump’s posts after the election and ...
...whether Facebook had conducted any internal analysis of whether such design decisions may have contributed to the events of January 6. Facebook declined to answer these questions."
Key board finding: "In maintaining an unfounded narrative of electoral fraud and persistent calls to action, Mr. Trump created an environment where a serious risk of violence was possible."
Six factors to consider in removing content (from Rabat plan): context; status of the speaker; intent; content and form; extent and reach; imminence of harm.
Although Board finds that suspending Trump was justified, it found no support for an "indefinite" suspension among Facebook's rules. It gives Facebook 6 months to set a standard for proportionate penalties and apply it to Trump:
Minority of Board suggests suspension could last until contrition from Trump. "Facebook should, for example, be satisfied that Mr. Trump has ceased making unfounded claims about election fraud in the manner that justified suspension on January 6." Majority doesn't reach question
Board recommends greater transparency in its rules in dealing with influential leaders: "It is important that Facebook address this lack of transparency and the confusion it has caused. "
"In particular, the Board finds that Facebook’s penalty system is not sufficiently clear to users and does not provide adequate guidance to regulate Facebook’s exercise of discretion. "
Let's be perfectly clear about this: if the Board required Trump's reinstatement, he'd be writing TODAY about how the fake Arizona "audit" will prove the election was stolen, further undermining confidence in the American electoral process.

Indeed, here's what Trump JUST released: it would obviously be directly on Facebook if allowed
Michael McConnell of the Facebook Oversight Board foresees a Trump II decision coming to the Board after Facebook responds to the Board's call to create a standard for evaluating the length of Trump's deplatforming. politico.com/news/2021/05/0…

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More from @rickhasen

26 Apr
I'll be listening to the Supreme Court's argument in the AFP case, which may have major implications for the constitutionality of campaign finance disclosure laws. Listen here: c-span.org/video/?510032-…
CJ Roberts out of the bat suggests skepticism of moving this analysis to "strict scrutiny." But in McCutcheon case, Roberts affirmed but redefined exacting scrutiny in contributions context to make it closer to strict scrutiny.
The level of scrutiny matters a lot because the stricter the scrutiny, the more likely the courts will strike down the law as an unconstitutional infringement on rights.
Read 28 tweets
6 Apr
#ELB: Must-Read Nate Cohn: “Georgia’s New Law, and the Risk of Election Subversion” electionlawblog.org/?p=121512 /1
This @Nate_Cohn piece is a must-read, on the analytically distinct question of whether new laws like Georgia's allow for the subversion of election results, an analytically distinct question from voter suppression. /2 nytimes.com/2021/04/06/ups…
He writes: "trying to reverse an election result w/o credible evidence of widespread fraud is an act of a different magnitude than narrowing access.A successful effort to subvert an election wd pose grave&fundamental risks to democracy, risking political violence&secessionism."/3
Read 10 tweets
25 Mar
MANCHIN likes mandated early voting, support for Native American voting rights, improved election security, and better disclosure of campaign financing (Disclose Act and Honest Ads Act). Not mentioned: restore VRA preclearance (in HR4), felon reenfranchisement, public financing
ALSO not mentioned in MANCHIN statement: any idea he'd blow up the filibuster for any part of H.R. 1.

Instead he calls for bipartisan cooperation on election reform, which is NOT GOING TO HAPPEN if it requires at least 10 Republican Senators.
ALSO not mentioned in MANCHIN statement: mandated commissions to redistrict to deal with partisan gerrymandering
Read 5 tweets
16 Mar
Got something coming soon to @washingtonpost @PostOutlook on H.R. 1 that I think will displease everyone. You're welcome.
My new one @WashingtonPost @PostOutlook: Are
Democrats going to blow it again on voting rights? It sure looks like they could by selling H.R. 1 as the only way to combat new Republican voter suppression. washingtonpost.com/outlook/2021/0…
Democrats are not going to blow up the filibuster for a bill that won't even get 50 votes. We need a narrower bill that would provide reason enough to blow up the filibuster for voting reform.
Read 9 tweets
22 Feb
#ELB: Breaking and Analysis: Supreme Court Refuses to Hear Cases Over Conduct of Election in Pennsylvania, With Justices Alito, Gorsuch and Thomas Dissenting electionlawblog.org/?p=120941 #SCOTUS
You can find Justice Thomas’s opinion, dissenting from denial of cert. in two-Pennsylvania election cases, and Justice Alito’s separate dissent joined by Justice Gorsuch in the same cases, at this link beginning at page 25 of the pdf. supremecourt.gov/orders/courtor…
The Court without noted dissent denied cert. in another PA case, the Kelly case. It takes four votes to agree to hear the case, and 5 to rule on the merits. There is no indication that Justice Barrett recused herself in consideration of the merits of these cases.
Read 10 tweets
11 Feb
Pressure builds on Facebook Oversight Board politi.co/3rHBi8T Scoop via @ZachMontellaro about our new letter supporting Facebook's decision to deplatform Trump.
Here's a link to our full letter on Facebook deplatforming Trump: politico.com/f/?id=00000177…
@davidakaye @julia_azari @JNelsonLDF @alexstamos @jacklerner @cailinmeister @NormOrnstein @Bertrall_Ross Jim Weatherall
Our letter about Facebook deplatforming Trump got more coverage @Politico here, noting 9,000 comments have been submitted so far on the question: politico.com/news/2021/02/1…
Read 4 tweets

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