{"id":20038,"date":"2020-05-12T17:34:53","date_gmt":"2020-05-12T17:34:53","guid":{"rendered":"https:\/\/www.publicknowledge.org\/?p=20038"},"modified":"2021-11-29T00:09:21","modified_gmt":"2021-11-29T00:09:21","slug":"due-process-requires-more-than-a-supreme-court","status":"publish","type":"post","link":"https:\/\/publicknowledge.org\/due-process-requires-more-than-a-supreme-court\/","title":{"rendered":"Due Process Requires More Than a Supreme Court"},"content":{"rendered":"

After a very long build-up, Facebook has finally announced the make-up of its Oversight Board.\u00a0<\/span><\/p>\n

This board is an important step by Facebook towards recognizing that the decisions it makes, as a dominant platform, have more public significance than editorial and curation decisions made by others. But what <\/span>many people have called<\/span><\/a> a “Supreme Court” is not the solution to the day-to-day process concerns people have when dealing with major platforms. We\u2019ve <\/span>thought about due process for a long time<\/span><\/a>. The metaphor of the justice system is a good way to think about what Facebook\u2019s Oversight Board does and does not accomplish. Users need more district courts, magistrate judges, and administrative hearings, to keep with the legal analogy, not just the long-shot opportunity to have their dispute heard by a part-time board of eminences.<\/span><\/p>\n

As in the actual court system, a “Supreme Court” hears extraordinary cases. In any system based on rules, there are going to be cases that fall through the cracks, and can’t easily be resolved by just routinely applying existing standards. Most of the work that the Supreme Court and appellate courts in general do involves situations of this kind.<\/span><\/p>\n

There are also going to be wholly new kinds of issues — in the Facebook case, categories of content — where new rules and standards altogether have to be crafted, by reference to broad principles of one kind or another. This is broadly similar to constitutional law in our legal system. It\u2019s important, but most disputes don\u2019t rise to that level.<\/span><\/p>\n

According to<\/span><\/a> the co-chairs of the Oversight Board, it will review:<\/span><\/p>\n

Cases that examine the line between satire and hate speech, the spread of graphic content after tragic events, and whether manipulated content posted by public figures should be treated differently from other content[.]<\/span><\/p><\/blockquote>\n

But they offer this proviso:<\/span><\/p>\n

We will not be able to offer a ruling on every one of the many thousands of cases that we expect to be shared with us each year. We will focus on identifying cases that have a real-world impact, are important for public discourse and raise questions about current Facebook policies.<\/span><\/p><\/blockquote>\n

In our paper<\/span><\/a> calling for due process, the emphasis is not on the extraordinary cases, but the day-to-day cases. The concerns most people have with major platforms don’t have to do with situations that fall through the cracks, or situations that call for new policies to deal with new situations, but the inconsistent or incorrect application of existing rules. Due process isn’t just about filtering tough cases to people who can make tough judgment calls (and set precedent for the future), but about the routine ability to correct mistakes.<\/span><\/p>\n

Due process is a flexible concept, and the greater the stakes, the more process is required. In its fullest form, it can include:\u00a0<\/span><\/p>\n