As Meta surpassed 2 billion users in 2019, the company created an independent oversight board to review appeals of controversial decisions involving content moderation. Members of Meta’s Oversight Board Michael McConnell of Stanford Law School and Kenji Yoshino of New York University School of Law discuss the board’s recent work, including its efforts to ensure free and fair elections in advance of the 2024 presidential election. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Michael McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, a senior fellow at the Hoover Institution, and a member of the Meta Oversight Board. He served as a federal judge on the United States Court of Appeals for the Tenth Circuit from 2002 to 2009, and is the author of numerous books about constitutional law, including his latest, The President Who Would Not Be King: Executive Power Under the Constitution.
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law and the Director of the Meltzer Center for Diversity, Inclusion and Belonging. He currently serves on the Board of the Brennan Center for Justice, and on advisory boards for diversity and inclusion for Morgan Stanley and Charter Communications, as well as a member of the Meta Oversight Board. He has published four books, including his most recent book (coauthored with David Glasgow), Say the Right Thing: How to Talk About Identity, Diversity, and Justice.
Additional Resources
- Meta Oversight Board
- Former President Trump's suspension, Meta Oversight Board decision (2021)
- Meet the Board
- Brazilian general's speech, Meta Oversight Board decision (2023)
- Altered Video of President Biden, Meta Oversight Board decision (2023)
- Oversight Board Announces New Cases on Israel-Hamas Conflict for Expedited Review (Dec. 2023)
- United States posts discussing abortion, Meta Oversight Board decision, (2023)
- Referring to Designated Dangerous Individuals as “Shaheed”, Meta Oversight Board decision, (2023)
- Cambodian prime minister, Meta Oversight Board decision (2023)
- Reporting on Pakistani Parliament Speech, Meta Oversight Board decision (2023)
- How to Appeal to the Oversight Board
Excerpt from Interview: Kenji Yoshino discusses the challenge of balancing Meta's five core values within a global context.
Kenji Yoshino: Well, I mean, it's not really free speech values alone, right? Because as Meta says, and as we deeply believe, voice is not the only concern that we need to protect. So there are really five values that Meta articulates as being salient to its platforms. And from time to time, it's says, freedom of expression is paramount, right? So we might lead with a voice as you have. But there are four other voices too. There's values as well. There's privacy, there's authenticity, there's dignity and there's safety. So what I find to be incredibly fascinating about my time on the board is that the balances among these different values can be extremely tricky, and that in many ways we are kind of not as tilted over one wing vis-a-vis speech.
I'm curious as to whether Michael agrees or not as US First Amendment jurisprudence would indicate. So I've written a little piece on this, and it's pushed me back into the history of the creation of the oversight board. And in fact, early on with regard to content moderations, long before the oversight board even existed content moderation was done by first Amendment standards that the people who were in charge of these issues were trained in a US First Amendment tradition of, yes, the Nazis get to march in Skokie. Yes, you get to burn a cross on your yard. Because the very boast of our First Amendment jurisprudence as the Supreme Court recently reminded us the Mattel versus Tom case is that we protect even the speech that we abhor. And so the speech we hate doctrine is part of a very expansionist and rigid vision that is intensely speech protective.
And the story goes with Meta is that as Meta became more global, it realized what an outlier the United States was and could not simply default back to US First Amendment jurisprudence. Because, if you go to Europe and you look at sort of hate speech laws there, the cast is very, very different and much more tilted towards equality or dignity than it might be towards speech. And so, as a global platform that insisted on having community standards that were not geofenced that applied across the globe the balance, I think, had to be struck differently. And that's why our baseline here is not the US Constitution and free speech, but rather international human rights norms. So one of the things that I've greatly appreciated on being on the board is that because we're not state actors, and because we are global we can strike these balances differently from what I was taught and what I teach, are the First Amendment norms with regard to free speech.
So, as long as they acknowledge that in our decisions. So I'm venturing a little bit further afield, but I still hope this is useful. We issued a decision on blackface where we said, if you actually portray yourself in blackface, even if it comes from an innocent tradition like the Dutch, black Pete tradition, we are going to prohibit it. And we know that if we were a state actor, if Meta were a state actor, we would not be able to do that, right? International human rights law would probably not allow that absent some exception, like violence or true threats or something like that. But given that we are not regulating a state actor, given that this is a private kind of super compliance B situation, we can strike that balance differently and on balance, equality norms Trump or dignity norms, Trump speech norms in this particular hate speech context. So that's a hate speech case, but all of these issues go to what the board is trying to do in elections as well, which is to try and balance out these different values. And what's been really striking to me is that if the baseline is international human rights norms, oftentimes that calculus comes out differently than it would if the baseline were US first Amendment norms.
Excerpt from Interview: Michael McConnell discusses the nuanced interpretation of the Arabic word "Shahid" which has led to many takedowns, and mentions the board's policy recommendations to refine its usage, inviting public comments on cases like "from the river to the sea."
Michael McConnell: So these first two cases were expedited, they were decided, and I think it was about a two-week timeframe, which they were the first ones we dealt with under these procedures. I think the biggest legitimate complaint about the board is just that ordinarily our work is too slow because of the way we go about things. But we did this, I think, on a rather rapid timeframe. But since then, there have been other related matters that come up, specific cases. And also, we reviewed a very touchy question that I don't think people in the United States are even aware of, which is the word Shahid in Arabic means, it has a range of meanings. It refers to people who have recently been or have been killed. It sometimes means martyr, and it is often used in connection with terrorists who die in the course of trying to do that. And that's, it touches on that issue we were talking about before of praise for terrorists or other dangerous organizations, but it has a much broader use than that. When a teenager dies in an automobile accident, they might well be referred to as Shahid by their family and so forth. And Shahid was the single word that most often led to takedowns of messages.
And it had a really weird and sometimes counterproductive effect as applied. In the Middle East. Again, in the United States, we were kind of oblivious to that, but we issued a policy recommendation that drew much closer lines to try to make sure that the word Shahid is being disfavored only in contexts where it should be and not so broadly.
Now, Jeff, you ask about from the river to the sea. There's been a public announcement that that happens to be a specific case that is being taken up by the board. And I'm not going to predict how it's going to come out. And it may be open. I can't remember exactly the timeline. But your listeners may be interested to know that we announce cases when they're being taken up and we welcome public comment. A lot of those comments are from civil society groups of various sorts and academics who study the matter, but anyone is free to comment, and we take those all into account and very seriously. So cases like this, some of the listeners on this program may want to chime in.
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