The United States Senate and Facebook’s “Oversight Board” will both decide cases revolving around truth, lies, democracy and violence.
It has been barely a full day since Donald Trump ambled out of the White House for the last time as President of the United States, and the smoke has only just cleared from the fireworks celebrating the inauguration of Joe Biden to replace him. But the world is not quite ready to move on from the other recent explosive events at the Capitol. The question remains of how to hold the 45th President to account for his actions before and after the 2020 election that led to the violence in Washington, DC on January 6th. Two coming tribunals will do just that- but no matter their respective outcomes, they expose the dangers of failing to hold demagogues to account until it is too late.
Following his impeachment for “incitement of insurrection,” as the sole Article adopted by the United States House of Representatives put it, Trump will face a trial in the Senate that, on his conviction, could lead to his disqualification from future office. And now, Facebook’s quasi-independent “Oversight Board” has announced it will consider the company’s decision to indefinitely ban Trump from the platform. Not unlike Congress, Facebook is concerned with incitement to violence. “Our decision to suspend then-President Trump’s access was taken in extraordinary circumstances,” wrote Nick Clegg, Facebook’s head of policy, on the decision to refer its ban to its oversight board: “a US president actively fomenting a violent insurrection designed to thwart the peaceful transition of power; five people killed; legislators fleeing the seat of democracy.”
Both the Senate and Facebook Oversight Board are considering questions that strike at the heart of ongoing debates about the relationship between speech, truth, democracy, and the violence that threatens to consume nations when demagogues emerge and rules are not clear and enforced. And both proceedings raise a potpourri of questions about process and the role of governing bodies in holding leaders to account: How do the rules of the body and the politics of the jurors affect the outcome? What role does the public play? What role does truth play in democracy, and where is the line between free speech and incitement? What does the decision in each case tell us about the future of democracy, and its relationship to technology platforms?
No doubt these questions and more will unfurl in the coming days. And certainly, these are very different bodies with very different goals. But zoom out, and one question is common to both: what happens when governing bodies- whether a public one like the United States Senate, or a private one like Facebook- fail to enforce their own rules and principles? Arguably, the failure of both entities to take action in the past is what led to January 6th, and why even as the images from the day produced shock and anguish, they were nevertheless predictable.
Consider the trial ahead in the United States Senate. Should it be surprised to find itself considering this case? Certainly not. It had ample prior knowledge that Donald Trump had no regard for democracy, the rule of law or the Constitution. It learned as much in its investigation of Russian interference in the 2016 election, when it found Trump associates eagerly took advantage of the Russian effort to subvert an American election, coordinating the trafficking of hacked materials and going so far as to share campaign data with a Russian agent. It learned the same when Donald Trump was impeached for the first time, for abuse of power and obstruction of Congress in the case of his effort to get the Ukrainian government to produce dirt on Joe Biden. And of course, it had ample evidence of anti-democratic behavior that did not rise to the level of a bipartisan Committee investigation or impeachment. And yet the Senate, in large part due to the interests of Republicans who did not wish to risk their own political power by voting to convict the President, did nothing to hold him to account.
The same is true of Facebook. For years Donald Trump was free to use Facebook to build his political movement, even as evidence mounted that he and his supporters were using the platform to spread disinformation and foment hate. Things arguably came to a head last year. During the George Floyd protests in the summer of 2020, Facebook declined to remove Trump posts that suggest protesters in Minneapolis could be shot. Facebook received a civil rights audit that noted the dangers of Donald Trump’s false attacks on the integrity of the election. Facebook staffers even staged a virtual walkout to protest the President’s repeated abuses of its terms of service. “The hateful rhetoric advocating violence against black demonstrators by the US President does not warrant defense under the guise of freedom of expression,” one Facebook employee wrote on an internal message board, according to The New York Times. And yet Mark Zuckerberg, presumably concerned about the repercussions on his company’s commercial interests, did nothing to hold him to account.
So here we are, after the fact, deciding whether Donald Trump should have any place in the public sphere at all. The Senate, if it votes to convict, can then by majority vote decide to bar Trump from ever holding office again- “disqualification to hold and enjoy any office of honor, trust, or profit under the United States,” as the Article of Impeachment reads. And Facebook’s Oversight Board, if it chooses to uphold the company’s decision, can permanently ban the President from a platform used by nearly 7 in 10 American adults. All of this is after the fact, of course- the damage to American democracy is done. Millions of Trump’s supporters still regard Joe Biden’s election as illegitimate, and authorities remain concerned about the threat of more extremist violence from the right.
Going forward, governing bodies must find the will to stand by the principles and rules they protect. “To have offered Trump a lesser standard, to have refused to hold him to account until the 11th hour, has put American democracy and the stability of the globe on the line and made social media firms complicit in the destabilization from which we have yet to emerge,” said Sarah T. Roberts, a professor and author of a book on social media and content moderation. She does not sound unlike Senator Mark Warner, who worried at the Senate trial last year whether allowing Trump to get away with his high crimes with no consequences would invite crimes from future Presidents: “If the Senate fails to hold him accountable we will be setting a dangerous precedent.” The United States Senate and the Facebook Oversight Board now face the same decision again. Will they favor the demagogue, or democracy?
The jury is out.
Justin Hendrix is CEO and Editor of Tech Policy Press, a new nonprofit media venture concerned with the intersection of technology and democracy. Previously, he was Executive Director of NYC Media Lab. He spent over a decade at The Economist in roles including Vice President, Business Development & Innovation. He is an associate research scientist and adjunct professor at NYU Tandon School of Engineering. Opinions expressed here are his own.