A panel stocked with anonymous content-moderation “judges” upheld Facebook’s ban of former President Donald Trump while also leaving the door open slightly to have that ruling revised in six months, but no matter what the group ruled, Trump was poised to claim victory – as the vindicated or the victim.

The social media giant, which froze Trump’s account in the wake of the Jan. 6 U.S. Capitol breach, cited a pair of Trump posts as having violated Facebook rules and Facebook CEO Mark Zuckerberg claimed Trump’s posts were meant to “undermine the peaceful and lawful transition of power to his elected successor, Joe Biden.”

But while Twitter – which suspended Trump on Jan. 6 and booted him from the platform Jan. 8 – acted quickly, Facebook waited until Jan. 21 to announce that the company’s oversight board would render Trump’s ultimate Facebook fate — though that board then kicked the can down the road a bit more on Wednesday morning. The determination by the board also applies to Instagram, which is owned by Facebook.

Few of those experts and analysts who’d been hotly watching the drama play out pretended to know which way the board would rule before the odd 9 a.m. decision – but they all acknowledged how momentous the decision was likely to end up being.

“It’s a big day,” said Andrew Selepak, a social media professor at the University of Florida. “The oversight board is looking at something of great significance. This is obviously something that is vastly different from any decision they have made in the past in terms of size and scope.”

Dallas-based digital marketing expert Adam Rizzieri said the board’s verdict was a tossup.

“It really is a coin toss,” he said. “I give it a 50/50.”

If Trump was reinstated, Selepak predicted the president would do a “victory lap” of vindication against big tech and pressure other platforms that banned him to follow Facebook’s lead.

Aside from Twitter, Trump was also booted from other popular platforms, including Twitch, Snapchat and YouTube. On Tuesday evening, his website launched a new page that allowed one-way communication – in real time – from the 45th president at donaldjtrump.com/desk. Notably, Trump’s posts have a social share tool that allows users to push the messages onto Facebook and Twitter.

But the ban being upheld, however, may have represented an even bigger win for Trump.
Selepak expects a Republican-led backlash to be launched against big tech, which has been increasingly accused of silencing conservative voices.

“Being deplatformed makes Trump a victim of social media and gives him a greater voice against it than if he was simply allowed back on,” Selepak said.

Rizzieri agreed that a decision upholding the ban could add “much fuel to the fire” that already exists when it comes to creating new social media platforms and placing more scrutiny on big tech, in general.

And though Twitter “permanently” banned Trump months ago and YouTube CEO Susan Wojcicki said in March that the video platform would reactivate Trump’s account only when it was “safe” to do so, those sites and others may be pressured to quickly re-evaluate their decisions if Facebook goes against the grain six months from now, when the company is due to reevaluate its decision.

“If Facebook indicates that they are going to allow him access to his accounts again, it will be very difficult for Twitter, Snapchat, and YouTube to say we are still not,” Selepak said.

Facebook created its 20-member oversight board through an endowment it funded. The board and its bylaws were put in place last year, and members come from different countries and a range of professional backgrounds – including lawyers, human-rights advocates, former politicians, and journalists.

In the big picture, the board is tasked with determining whether Facebook correctly followed its policies in either leaving up or taking down content or accounts from the platform. Cases, which are either referred to the board by Facebook or from an individual user via a petition, are reviewed and adjudicated by five of the members.

The group of five who render the decision remain secret.

Once the small anonymous group comes to an agreement, their decision must be approved by a majority of the full board. In the case of a major disagreement, the process restarts under a new panel.

Once a ruling is reached, it’s binding, and Facebook has agreed to abide by the panel’s decision. The board may also recommend policies for Facebook to implement. But in the case of proposed rule changes, it’s up to Facebook officials to decide if new policies – or changes to existing rules – should be enacted.

“Irrespective of the decision, Facebook is looking to the committee for a policy recommendation on how they will ban or not ban world leaders moving forward,” Rizzieri said. “That gives the company the ability to say how they will make decisions moving forward.”

One thing social media experts do agree on is that, no matter which way the ruling goes, there will be plenty of scrutiny over the faceless group rendering the decision.

Rizzieri said while the oversight board’s members are generally respectable, educated, and influential people, the fact that only five total members are American could cause pushback. The interpretation of free speech varies among countries – but Facebook is based in America.

“Do we really want decisions that influence how we view free speech determined by this ‘social media supreme court’ that isn’t fully American?” Rizzieri said. “We really have no idea what might influence someone from a totally different country to make a decision about a policy or law.”

So far, the board has mostly reviewed posts made by users that most people don’t know. But in this case, the board was tasked with determining the fate of a former U.S. president who had some 35 million followers when his account was suspended and may run again for the highest office in the land in 2024.

Rizzieri said the board considered the following questions during its deliberations:

• Did the content violate Facebook’s policies?
• Did the removal of the content respect human rights standards like freedom of expression?
• What was the intent behind the post?
• Did the user understand Facebook’s terms and rules?

He said the board also takes into consideration nuances of the language used in the post and any surrounding context. It also took some time to review the more than 9,000 public comments that users submitted about the case.

In fact, that flood of public comments led the board to delay its original 90-day deadline to decide Trump’s fate.
Initial rulings issued by the oversight board earlier this year indicated they weren’t afraid to overturn Facebook’s content-moderation decisions. The board has overturned decisions in five of the seven cases it has ruled on so far.

“This independent oversight board is not a bobblehead nodding an affirmation for what Facebook is doing, just looking at how they judged their first five cases,” Rizzieri said.

Despite that demonstrated independence, if Selepak had to place a bet, he wagered the ban would be upheld.
“If I was to place some Las Vegas bet on it, the easiest thing for the board to do is uphold the deplatforming now that [Trump] is a private citizen,” he said. “What is the justification for lifting the ban? Allowing a private citizen the ability to go back on social media because he has a large following?”

Because Trump is now a private citizen, Selepak said Facebook can more easily justify its decision to uphold the ban by arguing he isn’t entitled to the same leeway as a sitting world leader.

Rizzieri completely disagrees. He saw a decision that allowed Trump to rejoin Facebook as the “path of least resistance.”

“If the decision is one that says we are going to keep Trump off of Facebook and uphold the ban, there will be a lot of attention on who is on that oversight board,” he said.

And if Trump does choose to run for office again, Facebook could be forced to reconsider any ban that may be in place at that time. The company has pledged to not limit the voice of any candidate running for office.

Facebook has typically adhered to its policy of not removing a world leader or sitting official from the platform. But it has taken down posts and suspended accounts of sitting world leaders such as Brazilian President Jair Bolsonaro and Iran’s Supreme Leader Ali Khamenei.

Rizzieri believes there is “no way” Facebook could sustain its ban if Trump were on the ticket in 2024 or became president in 2025.

A new Florida bill, which is expected to be signed into law by Republican Gov. Ron DeSantis, would actually fine social media companies that knowingly deplatform a political candidate. Under the proposed law, suspensions up to 14 days for rule violations would be allowed, however, and posts that break any terms of service could be deleted.

But the state’s elections commission would be able to fine a social media company $250,000 a day for statewide candidates and $25,000 a day for other candidates if a company’s actions are found to violate the law.

Even if Trump’s account was reinstated, regardless of whether or not he is running for office, Selepak noted he could have faced other sanctions, such as seeing a dip in his posts’ reach.

“There is no guarantee [Facebook] wouldn’t ‘shadow ban’ him or put warning labels on posts and limit his reach and voice,” he said. “These tech companies are very powerful because they can limit anyone’s voice.”

Even if Facebook did reinstate Trump and then use its algorithm to limit the reach of the former president’s posts, it’s something that Selepak said is very difficult to prove is taking place because users have no ability to “look under the hood” to see how the platform operates internally.

“They have the ability through their platforms to downgrade the posts,” he said. “They can do whatever they want to limit the reach of his posts using their algorithm. Posts may not get the reach they had in the past.”

Regardless of the outcome, Rizzieri said big tech can expect Congress to make some noise about how social media companies make content moderation decisions.

Already, there have been several attempts to look at Section 230 of the Communications Decency Act of 1996, which gives social media companies immunity from liability, from lawmakers on both sides of the aisle. Democrats want to go after the protection in order to curb the spread of what they say is disinformation, while Republicans rail against alleged censorship.

“Weekly, there is a new effort to overhaul, rewrite, or undercut Section 230,” Rizzieri said. “There is bipartisan support for a change to the overall system, but there hasn’t been a perfect solution proposed.

“Whether Trump is allowed back on Facebook or the ban is upheld, some sort of regulation is inevitable. The real question is: To what extent?”