May 6, 2021

JOSH BLACKMAN: The Per Curiam Facebook Oversight Board:

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 in 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.

Plus, some thoughts from Randy Barnett. Also, it says a lot about the pernicious role of social media today that the members of the Oversight Board are left unnamed so they won’t face rabid personal attacks on social media. . .

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