Facebook recently announced the first 20 members of its new oversight board. The role of the board is to guide Facebook through decisions on what controversial content should be allowed to stay up or be deleted.

Michael McConnell, professor and director of the Constitutional Law Center at Stanford Law School and a co-chair of Facebook’s oversight board, joins the podcast to discuss what the institution of the board may mean for conservatives and how he plans to work alongside the liberal members of the group. 

We also cover these stories:

  • President Donald Trump is critical of Obama administration officials who “unmasked” his former national security adviser, Michael Flynn.
  • Sen. Richard Burr of North Carolina is stepping down from his chairmanship of the Senate Intelligence Committee while his stock sales are investigated. 
  • Senate Majority Leader Mitch McConnell criticizes Democrats’ $3 trillion coronavirus package. 

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Virginia Allen: I am joined by Michael McConnell, professor and director of the Constitutional Law Center at Stanford Law School and a co-chair of Facebook’s new oversight board. Professor McConnell, thank you so much for being here today.

Michael McConnell: It’s a pleasure.

Allen: To begin, can you just tell us a little bit about the mission and purpose of Facebook’s oversight board and how you came to be one of the four co-chairs of the board?

McConnell: The mission and purpose is that, over the years, Facebook has become the leading platform of communication around the world. And with that have come controversies and problems: What gets posted? What comes down? And the company realized that it was not a good thing for any one entity, even itself, to be making these important free speech decisions.

What they decided to do was to create an outside board of independent-minded people with experience in free expression issues to give a second look to the decisions made by the company about content moderation.

So if you post on Facebook and Facebook decides to take your message down, then you can come to the oversight board for a second opinion on that. And Facebook has agreed that it will comply with the oversight board’s decisions.

Now, as for me, I don’t exactly know, nobody really tells you where your own name comes from, but I do teach freedom of speech and religion and press right in Facebook’s backyard at Stanford.

So I guess in Silicon Valley, when you’re talking about issues of that sort, my name would come up pretty quickly. I’m also a former federal judge, so that probably also attracted some favorable attention.

Allen: Well, we’re certainly glad to see you on the board. You have said that Facebook has one of the most influential roles to play in deciding what can and can’t be said in our culture today. That’s a little scary, but I think that you’re absolutely right.

How does Facebook saying this is or is not something that you can say on our platform threaten free speech in general?

McConnell: Facebook from the beginning has had some restrictions. It is a platform that’s supposed to be a good place for families, and so it’s had, for example, an anti-nudity policy, quite rigid anti-nudity policy from the beginning. And other issues have come up over time.

They have what they call the Facebook Community Standards, which is an elaboration of their policies and what can and can’t be expressed. It’s right on the net. You can look it up and read the Community Standards for yourselves. Many of those, though, are, as you would expect, somewhat vague and subject to different kinds of interpretation, so that leads to many controversies.

Now, as a mechanical matter, first there’s the use of AI and algorithms to find some kinds of impermissible content. … I’m not much of an empirical guy, but I think something like 80% or 90% of this is elimination of bots, which are artificially-generated posts that aren’t coming from human beings at all, and AI is pretty good at identifying bots.

But in addition to that, Facebook has three different monitoring centers around the world, each of them having about 10,000 employees who review the posts and see whether they comply with Facebook Community Standards.

Then on top of that, someone who doesn’t like the decision that Facebook has made has the right to appeal it within the company, and they would get a yes or no answer, but no explanation.

That’s where it rested or has rested up until now.

And the idea of the oversight board is to give people an opportunity to appeal these decisions to a group of independent outsiders who will take another look, make a decision, and this time actually provide an explanation or rationale in writing so that people can find out why their post was up or why it was down, and we’ll be able to evaluate whether the decisions are being made on a reasonable and a neutral, ideologically and culturally neutral, basis.

Now, the difficulty of this is that the volume is so immense, with billions of posts and hundreds of thousands of controversies.

Obviously, the oversight board, we’re all going to be working part time. We can’t begin to look at all of the appeals. So one of our tasks is going to be to figure out how best to select from that mass of possibilities the cases to focus attention on.

So we’re going to have a committee, a case selection committee, that looks at a large number of these cases quite quickly and superficially, and then identifies the ones that will have the most impact.

We could talk about the criteria for that, but the main point is that even once we’re up and running, not every dispute can go to the board, and we’re only going to be able to decide a tiny fraction of the appeals.

Allen: … [It’s] interesting to hear some of that background. I do want to ask just about how we kind of as conservatives should be viewing this board, because here at The Heritage Foundation, we’ve experienced Facebook pulling down our content over wording that they saw as objectionable, and later they did restore that content. But this is a pattern that we see with Facebook.

So with the implementation of the oversight board, are you optimistic that conservative groups and individuals will be treated impartially on the platform?

McConnell: We’ll see, but it’s my hope that this is going to be one of the major contributions of the board, is to bring a kind of ideological neutrality to these decisions.

It’s hard to know exactly what the source of all these problems has been, but you think of Facebook as a profit-making company and it responds to consumer pressure, and it just so happens in this world that the most pressure, the loudest, noisiest voices tend to be those who are advocating censorship, and often of censorship of people on the conservative side of the spectrum. And companies respond to the squeaky wheel.

It’s my hope that when an outside group that has pledged to be ideologically neutral and objective then takes a look at this—and in a more deliberative way where we don’t really care about Facebook as a company, what we care about is the charge to promote freedom of expression in a neutral way—I’m hoping that this board will have the effect, maybe not in every single case, and I’m sure no one is going to agree with all of the decisions, but overall to have a more even-handed and fair-minded and certainly more transparent system.

Allen: Yeah. Do you know how the board anticipates handling hate speech issues, for example? These are issues that can often involve pretty complicated matters. So let’s say that someone posts a cartoon that is making fun of Islam in a Muslim-majority country, how would the board deal with that?

McConnell: I can’t speak to any specific question because that’s what we’ll be deciding. Hate speech is both a real problem, on the one hand, but also an extremely slippery concept on the other. And if it’s interpreted to include merely being offensive or annoying or insulting, then freedom of speech values are really seriously compromised.

Now, you mentioned the Muhammad cartoons episode, and it is interesting that several members of the board had real-world experience with that particular controversy.

One of the co-chairs, Helle Thorning-Schmidt, who was the prime minister of Denmark when that controversy was going on, she defended the publication of those cartoons, even though part of the result of that were some deaths from people being attacked by people offended by the cartoons.

And yet, her reaction was that freedom of speech demands … the ability to publish things of that sort, even if they are offensive to some people.

There was another member of the board from the Middle East itself who publicly defended the publication of the cartoons, which was really quite an act of courage.

Allen: Yeah, absolutely. Gender identity is another controversial issue that, obviously, we see come up quite a lot in the news, with some activists arguing that using someone’s birth gender instead of their adoptive gender is hate speech. Twitter has already banned misgendering people. How do you anticipate Facebook handling this issue and similar ones?

McConnell: I don’t know. That might very well be a particular case that comes up, and I can’t anticipate how my colleagues and I will be deciding particular questions.

Allen: Yeah. … That’s very fair. We’ll wait and see.

Well, yourself and John Samples, the vice president of [the Cato Institute], are really the only known figures on the political right among the first 20 board appointees. Are you confident that your views and opinions will actually be heard?

McConnell: Well, let me tell you, I don’t intend to be sitting around as a potted plant. If my voice is not heard, I won’t be around for very long. I won’t put up with it.

Allen: I like it. Straightforward answer.

The board is internationally very diverse, and it represents countries from all over the world. And some, such as the Free Speech Alliance, have raised concerns about this, saying that the board will be unable or unwilling to embrace America’s First Amendment ideas of free speech. Is this a concern that you have?

McConnell: I think that anyone needs to be concerned, because it is true that the American understanding of freedom of speech is often more expansive than that elsewhere. But the two points about it, one is that, politics and ideology and free speech around the world are complicated.

So there are quite a few people, even on the board, and I really mean people around the world, who live under authoritarian regimes that are hostile to freedom of speech. And their politics of the dissidents may not be very similar to the politics of American conservatives, but they, in many cases, are as passionately committed to freedom of expression as any of us may be.

And we have members of the board who grew up under extremely adverse, even totalitarian, circumstances. And for them, freedom of speech is part of what they live and breathe.

The second thing about this is that these influences can both go both ways. And I understand that there are those who worry that the less libertarian notions of freedom of speech that we often see around the world will influence speech in the United States through this board. But it’s my hope that it will be the other way around, that this will be an opportunity for American free speech values to have a platform and to become more influential abroad.

Allen: Considering just that diversity among the oversight board, are you confident that the board will be able to really act and rule in unity in those situations where it really matters, on important issues around free speech?

McConnell: I don’t know. It’s really something we have to see. I see this board as an experiment rather than a panacea, and a couple of years from now, ask me that question again, and I can give you more of my reaction.

I do think that there are grounds for hope, though, because although there is a tremendous diversity of all kinds of dimensions among the members of the board, I think that they all do have in common some very serious commitment to freedom of expression within the cultures from which we all come.

And I hope and think I have reason to hope that that is going to play out and that the board will be able to work together for a world in which people can speak and also be safe.

Allen: How do you hope to influence your fellow board members to maybe more so embrace those principles or free speech for those who might just be a little bit more apprehensive to do so?

McConnell: Oh, I’ll need a little prayer for that. I have been an advocate for freedom of speech and freedom of religion my entire adult life. I have carried this message even within American academia, which is no less homogeneous than some of the environments we’ll be working in here.

I really believe that John Milton and John Stuart Mill and Thomas Jefferson had it right when they argued that the suppression of free opinion, [the] suppression of error, as John Milton would call it, is not good for human beings and for society. And if that’s right, then maybe the message will carry.

Allen: Yeah. Now, you said very clearly earlier, which I appreciated that, if your views and opinions are not really, I guess, taken seriously and upheld on the board that you wouldn’t stick around. But considering the fact that you are one of the only figures on the board that is conservative, are you at all worried about other board members trying to push you out?

McConnell: No, it never occurred to me.

Allen: OK, good. I’m glad to hear that.

I know that some conservatives are concerned that Facebook essentially has created the oversight board to be almost like a shield for themselves, so that they won’t have to necessarily take that brunt of when there is kind of questionable action taken. Do you think that there’s weight to this argument?

McConnell: Well, I don’t really care what Facebook’s motivation is. What I care about is that this is a mechanism for a second look and for contradicting Facebook when it is improperly taking material down. And that’s what really matters.

Allen: Yeah. I want to ask you one other content question. In our generation, increasingly we constantly see a lot of memes on the internet, and sometimes those memes can be quite crude. They use kind of various types of humor and content that can be offensive.

So how do you anticipate really navigating humor as a factor when you’re considering what stays up, what comes down, what’s constituted as hate speech, what’s not?

McConnell: I think it’s going to be hard. Not just humor, but satire, too, and deliberate exaggeration. … Especially in the United States, this is part of the way we communicate, through humor and satire and exaggeration. And to treat all of these things as if they were just straightforward statements of fact would just be a massive misunderstanding of the social phenomenon.

I do worry that, around the world, these things … are different norms and different understandings. And while I think that it’s essential that the same standards of freedom of speech are applied everywhere, I do think it’s important for the board to be culturally sensitive, so that something that might be understood to be a satire in the United States, a similar thing might not be understood as that elsewhere.

We need to make sure that we are as culturally literate as possible, so that we understand the meaning of these communications in the context where they occur. It’s not going to be easy.

Allen: Yeah. It’s certainly a challenge. Now, what are two or three things that you hope the board can implement over the course of the first year or so that will really empower Facebook users to feel comfortable exercising their free speech rights on the platform?

McConnell: First of all, I think it’s going to be very helpful to have some explanations of reasons. I think one of the biggest frustrations for Facebook users is that it’s been such a black box, that no one really knows why one thing is up and why something else is down. And the oversight board is going to explain the reasons for what we do.

… Whether you like the decisions or not, I just think getting reasons is going to be a big advantage.

Second thing is, I think that, at least I hope, that the board is going to be independent-minded enough to be able to take a step back from all of the kind of noise and pressure of the moment.

Social media is plagued by a kind of mass hysteria that is deeply contrary to both liberty and just to rationality. And I do hope, and I really do when I say hope, I’m very hopeful that this board is going to be able to separate itself from that and not to succumb to that.

Let’s see, a third thing? This is probably not on the immediate agenda, but something that I would like to see us do eventually is to take a look at the fact-checking process.

We will not be in a position ever to overrule fact-checking on each individual piece, but I think we might be able to, and I hope we’ll be able to, do some auditing of the fact-checking process and see how it’s going.

I think there are serious concerns that fact-checking is biased and perhaps not always as factual as it is made out to be. I think the principle of fact-checking is a very good idea, but if political bias is smuggled in in the name of fact-checking, we all are made much worse off as a result.

And we would need to look at this objectively and not just … assume that it’s so problematic, but also not assume that just because people call themselves fact-checkers, that they’re necessarily all that interested in the facts.

Allen: Professor McConnell, what would you say to conservative Facebook users who, frankly, are worried that the oversight board in the long term will mean more censorship of their content on Facebook?

McConnell: I don’t actually understand why it would. I think that the overwhelming sort of institutional drive here is going to be the opposite. That the demands for more censorship are powerful out in the world of Facebook’s customers.

I think that to have a process which is focused on deliberation is going to be a calming influence for that. I don’t see why it would be an aggravating influence. …

I also think that if people look at the records of the members of the board, not with a point of view of what is their politics, but rather from the point of view of what has been their stance on freedom of speech, that people should be reassured. Conservatives should be among those who are reassured.

I am now old enough, gray hair and all, … to remember when sort of left progressives used to be—part of their orthodoxy was to defend freedom of speech, even for people that they disagreed with. That, I think, has been going away. It’s been diminishing in power in the United States and elsewhere, but it isn’t gone. It isn’t absent. It is still a very respectable and somewhat common view.

I think that many members of this board, even if you can look at them and say, “Well, I don’t like their politics,” … are going to be standing up for freedom of speech for people that they don’t necessarily agree with.

Allen: Professor McConnell, thank you. I just really appreciate hearing your insight and your perspective. I think this is incredibly helpful, and I hope it’s a great resource for all of our listeners, so thank you so much for your time today. I really appreciate it.

McConnell: Thank you for the chance.