Facebook’s Oversight Board has both applauded and admonished Facebook for clamping a gag order on former President Trump the day after his supporters laid siege to the national Capitol.

It did nothing to settle the question of the limits to First Amendment-protected free speech on social media. The answer may end up coming from the courts.

Social media, however, are treated differently. They are protected by Section 230 of the Communications Decency Act and cannot be held legally responsible for blocking or distributing problematic content.

Significantly, the Oversight Board upheld Facebook’s decision to suspend Trump for inciting his supporters to storm the Capitol Jan. 6. The finding also applied to Facebook-owned Instagram.

Yet the board also said Facebook wrongly made Trump’s suspension indefinite. It scolded the company for making a hasty decision without clear criteria on punishment. 

Defined by Facebook as its “Supreme Court,” the Oversight Board returned to the social media network the question of whether Trump must spend a specific time period in Facebook jail or gets a life sentence.

The board gave Facebook six months to reevaluate Trump’s ban, and to formulate clear criteria for suspending and punishing users who violate the benchmarks.

“Our sole job is to hold this extremely powerful organization, Facebook, accountable,” said Michael McConnell, the board’s co-chair. He faulted vague criteria as the reason for returning the case to Facebook for clarity.

Left unaddressed: Whether Facebook’s gag order flies in the face of Trump’s right to say what he wants when he wants, even if his comments torment his detractors with misinformation, salacious conspiracy theories and toxic lies 

Nick Clegg, the company’s vice president of communication, said the Oversight Board’s duty is to review Facebook’s most difficult content decisions and recommend changes when needed.

“We will now consider the board’s decision and determine an action that is clear and proportionate,” he said in a Wednesday blog post. “In the meantime, Mr. Trump’s accounts remain suspended.”

Trump responded in his predictably angry style, binding the statement to his ad nausea claim of election fraud.

 “Free Speech has been taken away from the President of the United States because the Radiccal left Lunatics are afraid of the truth,” said Trump.  “These corrupt social media companies must pay a political price and must never again be allowed to destroy and decimate our Electoral Process.”

Facebook had just reason to suspend Trump’s accounts for his inflammatory remarks leading up to and including his Washington rally prior to the Capitol siege four months ago. The Facebook overseers were also right to admonish the social network for a fuzzy decision banning him indefinitely.

Free speech is a precious right in America. It includes political speech. Social media guidelines need to be clear on what is unacceptable speech for all users and the penalties for ignoring content criteria.

Facebook is a natural to lead on this issue as the largest of the social media networks, with some 2.7 billion monthly users. Other significant social media -- Twitter, Snapchat and Reddit -- have also banned the former president. They had hoped Facebook’s board would provide helpful guidance.

Facebook CEO Mark Zuckerberg created the overseers board to head off political retribution from Republicans and Democrats, both of whom have criticized the social media giant.

The quasi-independent board is comprised of 20 members, six from the U.S. and 14 from other countries. The majority are lawyers.

Bill Ketter is CNHI’s senior vice president for news. Reach him at wketter@cnhillc.com

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