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> In practice, however, it's become the epicenter of a debate around whether it should actually be responsible for setting new standards and laws via interpreta

> In practice, however, it's become the epicenter of a debate around whether it should actually be responsible for setting new standards and laws via interpretation, especially when the Legislature doesn't do what some people might want. Yes, and this is the mistake you're making in reasoning: we do this because it is exceedingly difficult to modify the US constitution. Facebook has no such limitation. If the oversight board, for example, tried to interpret the existing policies in a speech absolutist way to force Facebook's hand, Facebook could simply change the text of the policies, equivalent to a constitutional amendment. The value of judicial activism is far lower when the constitution is effortlessly fungible. When facebook modifies its policies, that is equivalent to an amendment to the constitution. If a gadfly tries to interpret that change in a way that Facebook dislikes, they can just clarify the constitution the next day. You can see how this impacts the Board's rulings, they're almost always formed as requirements that Facebook clarify its policies further. > Perhaps that gadfly is an "absolutist", or perhaps they're something else. My question is: how do we make sure that contingent continues to exist as new members are appointed? But this has nothing to do with whether someone believes that Facebook should be able to moderate people's speech. An unflinching free speech absolutist who believes that no entity should be capable of moderating speech would be wholly incompatible with the oversight board, as they'd need to concede things about moderation to even accept the oversight board's validity as an arbiter of moderation decisions. Also I do want to take a moment to mention that > There's a common trope thrown around that "the first amendment only applies to the government"...which is obviously true and nobody credible actually believes otherwise. Is easily found to be untrue, there are a number of sitting senators and house members, as well as tons of state representatives who are pushing for (trivially) unconstitutional laws that regulate tech companies in violation of the first amendment. The most recent example I saw was the Florida law that exempts companies that operate amusement parks.

bhupy 6y ago
> You can see how this impacts the Board's rulings, they're almost always formed as requirements that Facebook clarify its policies further. If that's the case, then the Oversight Board doesn't actually serve the purpose that the Supreme Court does, and your analogy there is inaccurate. In fact, if Facebook can simply unilaterally "change its constitution" when the Board issues an undesirable ruling, then it is much closer to the GGP's characterization of "One department of the megacorp confirms a decision made by the other department". In fact, if one might attempt to find an accurate analog in real world governance, another commenter pointed out that it's more akin to Iran: https://news.ycombinator.com/item?id=27050948 https://news.ycombinator.com/item?id=27050948 "In theory, the Supreme Leader is elected by the Assembly of Experts. However, all candidates for membership at the Assembly of Experts (including the President and the Majlis (parliament)) must have their candidacy approved by the Guardian Council, whose members in turn, are half appointed unilaterally by the Supreme Leader and half subject to confirmation by the Majlis after being appointed by the head of the Iranian judiciary, who is himself appointed by the Supreme Leader." > An unflinching free speech absolutist who believes that no entity should be capable of moderating speech would be wholly incompatible with the oversight board, as they'd need to concede things about moderation to even accept the oversight board's validity as an arbiter of moderation decisions. I respectfully disagree. As long as the unflinching absolutist doesn't have the final say as a single individual, the unflinching absolutist serves the purpose of pulling the board in the direction of permissiveness (i.e. the principle of free speech). This is not all that different from the purpose that activists serve in society writ large, as you pointed out when you mentioned judicial activism.
- joshuamorton 6y ago
  > If that's the case, then the Oversight Board doesn't actually serve the purpose that the Supreme Court does Yes and no. Ensuring that Facebook is transparent with their policies is valuable. The OB prevents Facebook from lying to users about what its policies are in practice, so there is oversight that ensures that the de facto and de jure policies don't veer apart. That's still very much what the supreme court does, and very much not what the Iranian Assembly of Experts does. It is the case that the OB is relatively less powerful than the Supreme court because the Executive Branch and Legislative Branch of Facebook are one and the same, and so relatively far more powerful. But it still provides a semblance of an independent judiciary. A lot of its power comes in keeping facebook honest and accountable to users. A facebook that cannot lie about its policies is easier to hold accountable. > As long as the unflinching absolutist doesn't have the final say as a single individual I think this is akin to saying that a Supreme Court justice who believes that the law should be that the first amendment should apply to Facebook would be an asset to the court. That's true only if that's the outcome you prefer. Its terrible for the legitimacy of the court if someone's values are antithetical to the policies they're purportedly interpreting.
  - bhupy 6y ago
    I think we're aggressively in agreement about one thing: the OB is actually not the US Supreme Court, it's the Iranian Assembly of Experts. I think where we are in disagreement is whether this remotely can be considered an independent judiciary (Iran is below average: http://reports.weforum.org/pdf/gci-2017-2018-scorecard/WEF_GCI_2017_2018_Scorecard_EOSQ144.pdf http://reports.weforum.org/pdf/gci-2017-2018-scorecard/WEF_G...). As long as the OB functions in the way that you just described, it is not that. It is quite literally "One department of the megacorp confirms a decision made by the other department", and the fact that it's comprised of academics and experts (per the GP commenter) is just lipstick on a pig.
    - joshuamorton 6y ago
      > I think we're aggressively in agreement about one thing: the OB is actually not the US Supreme Court, it's the Iranian Assembly of Experts. I think if you've concluded that from my prior comment, you're not reading what I've said with any open mind. Because I explicitly stated the opposite. I think its also very clear that in practice "one part of the megacorp confirms the others" isn't how the OB has operated so far. There are cases where the OB has suggested FB adopt more aggressive polices, and cases where it has suggested it adopt more lax ones, and cases where it has told facebook that it wasn't acting in accordance with its policies. For example this one where, to continue the judicial metaphor, the OB remanded the case back to a lower court, noting that a "permanent suspension" was unconstitutional. Facebook can now have the lower court issue a different ruling (and then perhaps have that ruling appealed to the SC), or it could open itself to criticism by changing its policies to allowing a "permanent suspension", whatever that means.

bhupy 6y ago

> You can see how this impacts the Board's rulings, they're almost always formed as requirements that Facebook clarify its policies further. If that's the case, then the Oversight Board doesn't actually serve the purpose that the Supreme Court does, and your analogy there is inaccurate. In fact, if Facebook can simply unilaterally "change its constitution" when the Board issues an undesirable ruling, then it is much closer to the GGP's characterization of "One department of the megacorp confirms a decision made by the other department". In fact, if one might attempt to find an accurate analog in real world governance, another commenter pointed out that it's more akin to Iran: https://news.ycombinator.com/item?id=27050948 https://news.ycombinator.com/item?id=27050948 "In theory, the Supreme Leader is elected by the Assembly of Experts. However, all candidates for membership at the Assembly of Experts (including the President and the Majlis (parliament)) must have their candidacy approved by the Guardian Council, whose members in turn, are half appointed unilaterally by the Supreme Leader and half subject to confirmation by the Majlis after being appointed by the head of the Iranian judiciary, who is himself appointed by the Supreme Leader." > An unflinching free speech absolutist who believes that no entity should be capable of moderating speech would be wholly incompatible with the oversight board, as they'd need to concede things about moderation to even accept the oversight board's validity as an arbiter of moderation decisions. I respectfully disagree. As long as the unflinching absolutist doesn't have the final say as a single individual, the unflinching absolutist serves the purpose of pulling the board in the direction of permissiveness (i.e. the principle of free speech). This is not all that different from the purpose that activists serve in society writ large, as you pointed out when you mentioned judicial activism.

joshuamorton 6y ago
> If that's the case, then the Oversight Board doesn't actually serve the purpose that the Supreme Court does Yes and no. Ensuring that Facebook is transparent with their policies is valuable. The OB prevents Facebook from lying to users about what its policies are in practice, so there is oversight that ensures that the de facto and de jure policies don't veer apart. That's still very much what the supreme court does, and very much not what the Iranian Assembly of Experts does. It is the case that the OB is relatively less powerful than the Supreme court because the Executive Branch and Legislative Branch of Facebook are one and the same, and so relatively far more powerful. But it still provides a semblance of an independent judiciary. A lot of its power comes in keeping facebook honest and accountable to users. A facebook that cannot lie about its policies is easier to hold accountable. > As long as the unflinching absolutist doesn't have the final say as a single individual I think this is akin to saying that a Supreme Court justice who believes that the law should be that the first amendment should apply to Facebook would be an asset to the court. That's true only if that's the outcome you prefer. Its terrible for the legitimacy of the court if someone's values are antithetical to the policies they're purportedly interpreting.
- bhupy 6y ago
  I think we're aggressively in agreement about one thing: the OB is actually not the US Supreme Court, it's the Iranian Assembly of Experts. I think where we are in disagreement is whether this remotely can be considered an independent judiciary (Iran is below average: http://reports.weforum.org/pdf/gci-2017-2018-scorecard/WEF_GCI_2017_2018_Scorecard_EOSQ144.pdf http://reports.weforum.org/pdf/gci-2017-2018-scorecard/WEF_G...). As long as the OB functions in the way that you just described, it is not that. It is quite literally "One department of the megacorp confirms a decision made by the other department", and the fact that it's comprised of academics and experts (per the GP commenter) is just lipstick on a pig.
  - joshuamorton 6y ago
    > I think we're aggressively in agreement about one thing: the OB is actually not the US Supreme Court, it's the Iranian Assembly of Experts. I think if you've concluded that from my prior comment, you're not reading what I've said with any open mind. Because I explicitly stated the opposite. I think its also very clear that in practice "one part of the megacorp confirms the others" isn't how the OB has operated so far. There are cases where the OB has suggested FB adopt more aggressive polices, and cases where it has suggested it adopt more lax ones, and cases where it has told facebook that it wasn't acting in accordance with its policies. For example this one where, to continue the judicial metaphor, the OB remanded the case back to a lower court, noting that a "permanent suspension" was unconstitutional. Facebook can now have the lower court issue a different ruling (and then perhaps have that ruling appealed to the SC), or it could open itself to criticism by changing its policies to allowing a "permanent suspension", whatever that means.