Forget the 1st Amendment? Facebook Oversight Board Embraces International Rules

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Facebook’s new Oversight Board promises to be committed to freedom of expression. But that principle might better reflect an international standard, rather than a First Amendment-based American one.

In an op-ed published by JustSecurity.org, law professor Sejal Parmar wrote that “Facebook’s creation of the board suggests a clear and conscious turn from such a U.S. constitutional-law paradigm towards an international human rights approach.” One of the board’s co-chairs, Catalina Botero-Marino, retweeted the article.

The board, represented by its four co-chairs, has expressly stated that it would be relying on “international norms of human rights.” Other board members have repeated this sentiment in interviews. Co-chair and former Danish Prime Minister Helle Thorning-Schmidt said: “Our business is to discuss where is, where do you cross that line between someone’s freedom of expression, which we all believe in, that everyone has to have freedom of expression, but at the same time, we don’t want anyone to hurt someone else’s human rights.”

Parmar noted that the Oversight Board’s bylaws demand that members become well-versed in “international human rights standards.” She also noted that “At the same time, international standards may serve to undermine their appeal within the United States among those who prefer content moderation to be based on First Amendment standards.”

Article 19, an organization that received over $2 million from liberal billionaire George Soros’ Open Society Foundations, released a piece that wanted “the expertise in international human rights law of some FOB members” to “inform the work of the FOB.” The current director of the board, Thomas Hughes, was the executive director of Article 19 from 2013-2020. Botero-Marino also sits on the board of directors for the organization.

Hate speech is a key element in the board’s rulings, according to the op-ed penned by the four co-chairs. “The company’s independent oversight body will focus on challenging content issues, such as hate speech and harassment,” they wrote. “[W]e know that social media can spread speech that is hateful, harmful and deceitful.”

Individual Facebook Oversight Board members have stressed their concern for the removal of hate speech. Pakistani activist and Facebook Oversight Board member Nighat Dad wrote that there were points where “hateful speech becomes dangerous speech.” While she stated that the definition of “hate speech” was different for every individual, she believed that it still needed to be stopped.

Facebook Censorship Project George Soros