The Per Curiam Facebook Oversight Board

Today the Facebook Oversight Board released its decision concerning the termination of Donald Trump’s account. I am largely uninterested in the reasoning adopted by this non-judicial body. I view it as little more than a glorified law review article. Indeed, nine of the twenty members are academics. And these academics expressly rejected the jurisprudence I am most familiar with: the First Amendment. Rather, they favored a body of law I know very little about. Eugene observed that the Board gravitated towards principles of international law. When I read the word “proportionality,” my eyes glaze over.

The decision also had other European features. The majority opinion is not signed. Nor is there a signed dissent. Rather, the opinion includes a “procedural note”

The Oversight Board’s decisions are prepared by panels of five Members and approved by a majority of the Board. Board decisions do not necessarily represent the personal views of all Members.

We are left with a per curiam decision that refers to an unnamed “minority” view. Really, this opinion is not a law review article. Most forms of scholarship are signed. We have no idea who wrote this opinion. We have no idea who disagreed with it. For all we know, Michael McConnell, the lone conservative on the group, dissented. We will never find out. I suppose one of the plus sides is that the authors will be immune from public criticism for their decision. And they will not be trolled online for their actions–unlike virtually everyone else in the world. One of the reasons why tenure protections are afforded is to promote judicial independence. But now, the Oversight Board hides behind a fancy moniker.

Finally, one other note on the substantive issue. For the reasons Eugene explained, I am sensing a schism. More and more libertarians are trending towards the position that social media companies should be treated similar to phone companies. These sites seem to be viewed as different in kind from other types of private entities. These tech giants may be viewed as expressive forums, as distinguished from government-designated public forums. I hope to write more about this issue in due course.

My frequent co-author Randy Barnett wrote some useful threads on this issue.

Libertarian theory needs to be updated to take account of new technology. Natural rights have always been based on the nature of humans and the world in which they pursue happiness. The latter is evolving in fundamental ways, and so too are the threats to liberty. #MyNextBook https://t.co/jFI3NRY2vZ

— Randy Barnett (@RandyEBarnett) May 3, 2021

We clearly don’t now have a binary. In addition to common carriers we also have widespread federal, state and local laws barring discrimination in places of public accommodations. These laws are sacrosanct. Both are examples within the third category. https://t.co/7GJkcRvr2c

— Randy Barnett (@RandyEBarnett) May 5, 2021

Here’s another libertarian with a similar take: https://t.co/127eVKyfqw

— Randy Barnett (@RandyEBarnett) May 5, 2021

I think