Facebook’s Oversight Board Gets It Right on Free Speech . . . for Once

The American Center for Law and Justice (ACLJ) is pleased to announce a victory at the international Oversight Board (OSB). The decision by that body finally advances the cause of both freedom of speech and the sanctity of life over two of the world’s largest social media platforms – Facebook and Instagram.

The ACLJ is no stranger to the OSB. We’ve been there before.

After criticisms of content discrimination, Facebook created the OSB as a global tribunal made up of leaders in media, law, and politics to act as an independent appeals body. The OSB was given the power to review some of the most controversial content decisions on Facebook and Instagram and reverse them if appropriate. Recently, Facebook, the parent company that owned both of those platforms, has changed its name to Meta, but the operation of the OSB has basically stayed the same.

The OSB handpicks for review certain content decisions that Facebook and Instagram make, and in exceptional cases, Facebook itself can pitch an appeal to the OSB, as it did when it suspended the Facebook account of President Donald J. Trump.

In its recent decision on abortion-related posts, one in which the ACLJ filed a comment brief along with others, the OSB reversed Facebook’s decision to block the posting by a pro-life user. The user had posted a message criticizing the pro-abortion position that feigns compassion for unwanted babies as an excuse for aborting them, which, in effect, is like saying, “We don’t want you to be poor, starved or unwanted. So we’ll just kill you instead.” The content reviewers at Facebook focused on the word “kill” and wrongly suppressed the post under Meta’s incitement to violence policy.

At the ACLJ, freedom of speech and sanctity of life are both a high priority, so, for us the issue was clear. As we argued in our brief, Facebook hadn’t followed their own rules and had taken out of context words that the pro-life Facebook user posted. Beyond that, basic First Amendment principles, if applied to the case, clearly would warrant that Facebook’s censorship decision be struck down.

As our brief to the OSB stated, Meta must review words in Facebook posts not superficially but in their proper context as its own rules dictate. Further, as we wrote, suppression of speech should only occur when there is

a clear showing of (1) a “true threat” of impending violence (2) against a specific person or identifiable group, where the post (3) appears to be intended to, and is likely to incite actual imminent criminal behavior by others.

The First Amendment principles adopted by the U.S. Supreme Court have stressed that mere “rhetorical” use of words or phrases, which is protected speech, must be distinguished from actual threats of violence, which is not protected. We argued that to the OSB. The OSB rightly ruled that “rhetorical” use of the word “kill” in the abortion debate when referring to preborn life being destroyed is not incitement to violence and should be allowed. At the same time, it also reversed the takedown of postings by two pro-abortion social media users who used “kill” in non-threatening ways also.

Yet, while we applaud this OSB decision, we are cautious. The OSB was created by a Silicon Valley giant that has required in its charter that OSB decisions must apply – not the American First Amendment – but rather international law standards, which often depart from the rights we have under the U.S. Constitution. 

For instance, the OSB cited the U.N.’s “Rabat Plan of Action” as one of the authorities it consulted in reviewing this takedown of a pro-life post by an American citizen. There is irony in that. When we at the ACLJ represented President Donald J. Trump in his free speech appeal before the OSB for being blocked online in the wake of the January 6th incident, even Facebook never alleged any “incitement to violence” as a justification for that censorship. While the OSB agreed with us that Facebook had acted improperly and violated its rules in indefinitely suspending the President’s account, it relied in part on that same Rabat Plan of Action to justify second-guessing whether our Chief Executive, in his many appeals for the public to stay peaceful, had really done enough. As a result, the OSB pitched the issue back to Facebook to determine when the suspension should end.

Now the ACLJ does participate regularly in international law cases around the world. But when the free expression of Americans is trampled by U.S.-based Meta platforms as in this case, we continue to argue that First Amendment principles should prevail; any lesser standard of law is totally insufficient, particularly when the lives of the preborn, and our freedom of speech, hang in the balance.