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In the end, the @OversightBoard was just like everyone else in the content moderation space (incl. me): long on criticism, short on concrete solutions.
I really think we're being overly legalistic in our conception of it here. Lawyers ruin everything! /1
I really think we're being overly legalistic in our conception of it here. Lawyers ruin everything! /1
The allure of the Marbury v. Madison comparison is obvious. As is the analogy to judicial review.
But it's wrong here. /2
But it's wrong here. /2
We can't just settle into what is familiar: content moderation and the Board are fundamentally different from offline speech adjudication.
The shift is scale and speed is a shift in kind, not merely of degree. /3
The shift is scale and speed is a shift in kind, not merely of degree. /3
Furthermore, the Board (unlike the Supreme Court) was *specifically set up* to give policy guidance.
It's right there in the Charter! /4
It's right there in the Charter! /4
To be fair, the Board's refusal is not in small part Facebook's fault. Facebook wants to tightly control what the Board can and can't weigh in on. Not surprising the Board will get grumpy about that. /5
If we must have judicial analogies, it's worth noting that there are highest courts in other countries that give policy guidance and the US judiciary is hardly known for its unparalleled perceived legitimacy 
/6
/6
I get the desire to settle for the familiar. The takes write themselves! And I'm not saying we should waste centuries of scholarship reinventing the wheel. /7
But it's also true that being overly legalistic empowers lawyers in this debate at the cost of others and, idk man, not sure that's been going great so far /8
(I still love us and think we have value though! I'm not overly self-hating and have made plenty of constitutional analogies in my own work!! There's good reason to!! But that's the start, not the end, of the conversation.) /9
Gonna pull out one of my favorite @nicholas_bagley quotes here: "And if all you’ve got is a lawyer, everything looks like a procedural problem."
But the whole passage is worth reading /10
But the whole passage is worth reading /10
The realist in me thinks that this may have just been a product of the unique pressure of the Trump decision and the desire to avoid controversy.
They've shown aggressiveness in other decisions and I think they will again. /11
They've shown aggressiveness in other decisions and I think they will again. /11
And we shouldn't throw the split baby out with the bathwater: there was a lot to like in the decision. It brought some transparency (I learnt a lot!) and some of the advisory demands are robust and important. /12
But ultimately, the Board is *not a court* and I think we'll regret trying to stay too faithful to the image of one in our conception of it.
These are new problems. We need new tools and institutions. /fin
These are new problems. We need new tools and institutions. /fin
I know it looks like I'm taking shots at my allies in this thread (and at my own work lol). I'm not; there's so much to be learnt from law and legal analysis that's relevant. I just worry we're pushing the analogy too far too.
