The Yale Law Journal

June 2020

The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression

Internet LawFirst AmendmentMedia Law

abstract. For a decade and a half, Facebook has dominated the landscape of digital social networks, becoming one of the most powerful arbiters of online speech. Twenty-four hours a day, seven days a week, over two billion users leverage the platform to post, share, discuss, react to, and access content from all over the globe. Through a system of semipublic rules called “Community Standards,” Facebook has created a body of “laws” and a system of governance that dictate what users may say on the platform. In recent years, as this intricately built system to dispatch the company’s immense private power over the public right of speech has become more visible, Facebook has experienced intense pressure to become more accountable, transparent, and democratic, not only in how it creates its fundamental policies for speech but also in how it enforces them.

In November 2018, after years of entreaty from the press, advocacy groups, and users, CEO and founder Mark Zuckerberg announced that Facebook would construct an independent oversight body to be researched, created, and launched within the year. The express purpose of this body was to serve as an appellate review system for user content and to make content-moderation policy recommendations to Facebook. This Feature empirically documents the creation of this institution, now called the Facebook Oversight Board. The Board is a historic endeavor both in scope and scale.

The Feature traces the events and influences that led to Facebook’s decision to create the Oversight Board. It details the year-long process of creating the Board, relying on hundreds of hours of interviews and embedded research with the Governance Team charged with researching, planning, and building this new institution.

The creation of the Oversight Board and its aims are a novel articulation of internet governance. This Feature illuminates the future implications of the new institution for global freedom of expression. Using the lens of adjudication, it analyzes what the Board is, what the Board means to users, and what the Board means for industry and governments. Ultimately, the Feature concludes that the Facebook Oversight Board has great potential to set new precedent for user participation in private platforms’ governance and a user right to procedure in content moderation.

author. Assistant Professor of Law, St. John’s University School of Law; Affiliate Fellow, Yale Law School Information Society Project. I am grateful to Jack Balkin, John Barrett, Hannah Bloch-Wehba, Molly Brady, Julie Cohen, Catherine Duryea, Noah Feldman, Carrie Goldberg, James Grimmelmann, Andrew Gruen, Nikolas Guggenberger, Scott Hershovitz, Gus Hurwitz, Daphne Keller, Jeff Kosseff, Anita Krishnakumar, Mike Masnick, Andrew McLaughlin, Peggy McGuinness, Mike Perino, Nate Persily, Robert Post, Nicholson Price, Martin Redish, Katie Reisner, Anna Roberts, Sarah Roberts, Jennifer Rothman, John Samples, Scott Shapiro, Jeremy Sheff, Alex Stamos, Will Thomas, Jillian York, and Jonathan Zittrain for helpful guidance, feedback, and conversations on this topic and early drafts. Exceptional gratitude to evelyn douek, who served as my external critic and colleague on this project and whose own writing and insights were incredibly influential, and to my family Jon Shea, Evelyn Frazee, and Tom Klonick for their essential love and boundless support. This project benefited from feedback through presentation at Data & Society, University of Haifa, Hans-Bredow-Institut, London School of Economics, New York University, Notre Dame Law School, Cornell Tech, and Georgetown University Law Center. This project would not have been possible without, and was funded entirely by, individual research grants from the Knight Foundation, Charles Koch Foundation, and MacArthur Foundation, and it owes a great debt to Brent Bomkamp, Zabee Fenelon, Leah Ferentino, Danika Johnson, Jisu Kim, John Mixon, and Patricia Vargas for their hard work as research assistants. Finally, a huge thank you to the staff of this Volume of the Yale Law Journal for their hard work in editing an ever-changing draft amidst a period of great instability and uncertainty. I have never accepted any payment, funding, or support from Facebook and conducted this research free from any nondisclosure agreement.