Constitutionalism’s Charted Path: The Board as an Adjudicator
We had already pointed out that Mark Zuckerberg heralded the Oversight Board as the ‘Supreme Court’ of Facebook. The simile did not turn out to be a mere play on words. The Board approximates the well-known triadic formula common to all courts,[719] since it may be seen as an impartial mediator resolving a dispute between two opponents.
More importantly, scholars regularly evaluate the Board against the imagined judicial ideal.[720] Here we want to suggest that identifying the new oversight actor as a court is a metaphor, an entry point for a constitutionalist approach to the workings of the Board. At the same time, this metaphor moderates our expectations and introduces an understanding of freedom of expression as the means of limiting government, here ‘the government’ of Facebook. Thus, even though the ‘Board-as- court’ move aptly reveals the Board’s deficiencies when measured up to a regular court, it shapes our vision of how freedom of expression may shape corporate power.Other authors have noted the power of metaphors in understanding and regulating the digital sphere. Most recently, Morelli and Pollicino argued that metaphoric processes are fundamental to creating law, particularly when the law is to be extended to matters that had previously remained beyond its reach.[721] Unsurprisingly, metaphors have played a substantial role in mapping the Internet as well, with a variety of images being constructed to make sense of the digital, such as ‘cyberspace’ and ‘the information superhighway’.[722] Social media platforms have been problematically imagined as ‘intermediaries’.[723] Morelli and Pollicino demonstrate that metaphoric processes may also be observed in legal decision-making processes related to the Internet and proceed to investigate their impact on adjudicating freedom of expression cases, paying particular attention to the famous ‘free marketplace of ideas’ metaphor.[724] They argue that this particular metaphor reshapes our understanding of ‘public powers, regulation, and truth on the internet’,[725] thus providing a plea for reconsidering how such a cognitive device is employed in law.
Although the Oversight Board is entrusted with resolving disputes between a social network and its user, the claim that it is comparable to a court is a form of metaphorical reasoning. Adjudicatory bodies do not necessarily belong to a particular (supra)national jurisdiction. One might easily count the Board among the alternative dispute resolution mechanisms established by the corporate sector.[726] Nonetheless, scholars investigating the Board did not unequivocally define it as a particularly novel arbitrator. They have instead drawn parallels between it and courts common to judiciaries of contemporary constitutional democracies. To put it in terms drawn from Morelli and Pollicino, they have taken the frame of a court our imaginations expect when thinking of the judiciary and have transported it to the case of the Oversight Board.
In her seminal analysis of the Board’s origins, structure and perspectives, Klonick adopts a ‘judicial lens’ to complement her descriptive account of the new oversight organ. She thus draws a parallel between the Board and ‘courts bound by a constitution to protect individual rights’.[727] While acknowledging that the metaphor is ‘imperfect’,[728] the frame Klonick chooses allows her to demonstrate a gap between the judicial ideal and the Board’s reality in three matters: fundamental rights, transparency and independence. Out of the three, transparency appears to suffer the least, although the decision-making process of the Board remains somewhat opaque.[729] In terms of fundamental rights, Klonick notes that the formal framework of its work binds it primarily to Facebook’s internal standards rather than any immediately identifiable human rights law.[730] Finally, despite the Board’s strongly guaranteed financial independence and generally well-protected intellectual autonomy, its jurisdictional independence is arguably jeopardized. The Board remains a creature of corporate regulations that cannot be amended without Facebook’s assent.[731] The new oversight organ then only roughly approximates its imagined ‘Supreme Court’ ideal.
Others have also drawn from the constitutionalist imaginary to create a court-like image. In an insightful piece, Evelyn Douek argues for modest expectations in what the Oversight Board may achieve, demonstrating that it may serve two important purposes. First, its work may help control Facebook’s policy-making processes.[732] Secondly, the Board may provide public reasoning through its decisions that would, in turn, end up making content removal decisions more understandable and acceptable to the wider public.[733] Additionally, Douek notes that the requirement to provide reasoned decisions would prevent the Board from acting arbitrarily, just as it does in the case of judges.[734]
Similarly to Klonick, Douek initially frames the Board through a parallel with courts, albeit courts in autocratic regimes. She forcefully argues that the act of establishing the Board may be motivated by reasons that move dictators to allow independent judiciaries in their domains.[735] Thus, while her approach does not invoke an ideal as much as it relies on cases of its instrumentalization, the end result is similar. The Board may be marketed as the ‘Supreme Court of Facebook’, but it appears unrealistic to expect that it will play this role in anything but its name.
The metaphoric moves employed by Klonick and Douek do not only serve to put in sharp relief the deficiencies of the Oversight Board’s structure and functioning. Insofar as images of a court belong to broader constitutional imaginaries,[736] displacing them from their origin and applying them to a new environment shaped has two effects. Most obviously, the move enables a thickening of constitutionalist language. To invoke a piece of constitutional imaginary is to attempt introducing a particular ‘scheme of social reality’.[737] Rather than allowing the Board unchecked space to reimagine adjudication, such an invocation creates normative expectations stemming from constitutionalism. These restrict the Board’s one-sided reliance on the ‘Supreme Court’ metaphor.[738] As argued by Latham-Gambi, ‘political institutions provide sites around which meanings can crystallise’.[739] Thus, when one claims that the Oversight Board is a court, one becomes obligated to address the constitutionalist requirements for a court to be such a site.
Secondly, the choice of a court-centric perspective shapes how constitutionalist thinking is applied to the Oversight Board. This is a well-known feature of metaphors, as they ‘limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others’.[740] By saying that the Board is comparable to a court, both Klonick and Douek place an emphasis on two structural issues of pivotal importance to the judiciary. The first issue is its independence from other branches of government (Facebook) while the second encompasses matters of due process. In addition, some commentators have adopted the court metaphor to argue that the Board is an activist in relation to ‘Facebook-as-legislator’, claiming that its first batch of decisions is a scion of the famous Marbury v. Madison decision from the United States jurisprudence.[741] Again, the Board is here cast as a ‘Supreme Court’ of sorts.
Given that freedom of expression is a part of the constitutionalist arsenal,[742] we should also ask how does the ‘Facebook-as-court’ metaphor affect our understanding of this fundamental right. Unsurprisingly, if the new oversight organ is taken to be a court, freedom of expression is an individual right that may to some extent be enforced against the government, i.e. Facebook. The literature seems to converge on such an understanding, analogous to the role freedom of expression plays in nation states.[743] This fundamental right is then expected to regulate a trilateral interaction between the government, here Facebook, speakers, and those forming the speaker’s audience.[744] The Board’s first decisions, described in the previous section, fall within this paradigm. Thus, if the Board is to decide on controversies involving freedom of expression, it is to determine whether an exception, content removal by an authority, is acceptable under an understanding of the rule, freedom to express oneself.
There are difficulties with enforcing this paradigm on social networks. Most notably, freedom of expression may be a restriction on power, here the power of a social network, but its requirements are not uniform across the board. While the Board itself invokes ‘international standards’ of freedom of expression, there remain notable differences between jurisdictions regarding the scope of freedom of expression and the weight of speech when balanced against conflicting rights, such as privacy.[745] These difficulties are exacerbated by the deficiencies in the Board’s legitimacy that emerge as it attempts to measure up to what scholars describe as procedural standards of legitimate platform governance.[746] Klonick and Douek had already outlined these in their analysis of the gap between the Board and a court in a constitutional democracy.
This is not to say that freedom of expression in its usual guise has no place in constitutionalist restrictions placed upon both state and private power. Adjudication still can and does provide meaningful responses to pressing controversies involving speech on the Internet.[747] As platforms play an overriding role in designing opportunities for online communication and directly moderating the content of existing speech,[748] courts can develop rights-based interpretations that challenge technological and economic power.[749] Judicial interpretation can be a useful contributor to framing both public and private power and the judicial ideal can help us in evaluating forms of alternative dispute resolution.
However, fundamental rights are also bases for generating power.[750] They are contested and may be ‘reimagined’ as the societal conditions of their enforcement shift.[751] The various legislative responses to the dominating influence of social networks attest to this. They may be read as a ‘political enunciation of individual guarantees’,[752] freedom of expression included.
To regulate the liability of service providers is not only to create a formal framework that will guide the judiciary in deciding the limits of freedom of expression,[753] but is itself an attempt to generate power by interpreting this right in a particular territorial context.[754] It is an effort to establish defined places against the ostensibly unlimited space of the Internet.[755] The struggle over content moderation is then not only a matter of concocting a judicial formula for limiting speech, but an effort to (re)create power relations around freedom of expression.The ‘Board-as-court’ metaphor does not allow us to investigate this dynamic. While it draws from constitutional imaginary to help us make sense of what the Board should do, the standards of constitutionalism appear as a background consideration, necessary to understand the Board better. How freedom of expression enables and constrains the interplay between the Board and national constitutional democracies, however, remains out of sight. Given that the constraining and enabling of such interactions appears unavoidable in the era of transnational law,[756] a fuller understanding of freedom of expression in the framework of digital constitutionalism requires a wider perspective. Here we argue that one way to develop such a perspective is through the concept of constitutional advice.
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