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North Carolina Journal of Law & Technology

Authors

Evelyn Douek

Abstract

Facebook’s proposed Oversight Board is one of the most ambitious constitution-making projects of the modern era. With pre-existing governance of tech platforms delegitimized in the ongoing “techlash,” this represents a pivotal moment when new constitutional forms can emerge that will shape the future of online discourse. For all the potential of the Facebook Oversight Board (FOB), there are many things it cannot be. It will not hear a sufficient proportion of Facebook’s content moderation cases to be a meaningful response to calls for greater due process in individual decisions. Nor will it be able to become a font of globally accepted speech norms for the worldwide platform. The true value that the Board can bring to Facebook’s content moderation ecosystem lies between these two extremes of individual error correction and the settlement of globally applicable speech rules. The institutional offering of the Board should focus on two primary, but more modest, functions. First, it can help highlight weaknesses in the policy formation process at Facebook, removing blockages (such as blind spots and inertia) in the “legislative process” leading to the formulation of its Community Standards. Second, by providing an independent forum for the discussion of disputed content moderation decisions, the Board can be an important forum for the public reasoning necessary for persons in a pluralistic community to come to accept the rules that govern them, even if they disagree with the substance of those rules. Understanding the institutional role of the Board in these terms provides useful insights into the institutional design that will best help it achieve these goals.

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