The Facebook Supreme Court

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Yesterday Facebook officially launched its Oversight Board, an independent body that will make decisions about what can and cannot be posted on Facebook and hear appeals from people whose posts have been taken down. It’s been compared to the Supreme Court, the top appeals court in the United States justice labyrinth.

Like the Supreme Court, Facebook says the Oversight Board will create precedent, meaning earlier decisions will be used to shape later ones, so they aren’t reinventing the wheel every time. Also like the Supreme Court, the Board will try to come to consensus, but when everyone can’t agree, the majority will make the decision and those who dissent can include their reasons in the final decision.

Unlike the Supreme Court though, the Oversight Board’s members won’t be nominated by the president…I mean CEO, Mark Zuckerberg. He’s only appointing the two co-chairs, and it will be up to them to choose the rest of the 11-person board (it will get bigger as time goes on, according to the charter).

According to Facebook:

The purpose of the board is to protect free expression by making principled, independent decisions about important pieces of content and by issuing policy advisory opinions on Facebook’s content policies.

How will they choose what pieces of content are “important” enough to get an official ruling? The process is laid out in a post in Facebook’s newsroom. Cases referred to the Board will be those that involve “real-world impact, in terms of severity, scale and relevance to public discourse,” and that are “disputed, the decision is uncertain and/or the values involved are competing.”

I’m spitballing here, but my guess is that means it woouldn’t include your aunt posting confederate flag memes to her 12 followers, but it might include a politician who posts the same to their thousands of followers. My guess is that other cases will include things like body positivity posts that have been reported and taken down, like this one on Instagram (which is owned by Facebook).

In a blog post introducing the Board, Zuckerberg said it will start with “a small number of cases,” and admitted there’s still a lot of work to be done before it’s operational. I couldn’t find a method of actually submitting a case, for example.

The big question I ask myself when I see things like this: Do I think it is an empathetic use of technology? Do I think it shows an understanding of – and compassion for – users’ experiences and concerns? And do I think it will encourage users to be more empathetic themselves?

In some ways yes; almost; and maybe.

I do not think Zuckerberg ever expected to be tasked with arbitrating free speech on the internet. But he’s here now, and he’s getting a lot of pressure from politicians of all stripes to do something about harassment, privacy violations, and alleged censorship. Not to mention the fact that some lawmakers (and constituents, and former Facebook employees) want to break up the company’s ostensible monopoly on social media discourse. It’s all eyes on Zuck. His response to the free speech stuff has long been that it’s not his job to make those decisions. He has said he wants governments to make it clearer what’s okay to post online and what’s not. But by virtue of global politics and Facebook’s size and influence, the company is already making these decisions every day whether he likes it or not.

So I think a Supreme Court-style Oversight Board that can make binding decisions he cannot veto is smart. I think it could assuage some of his critics and make certain people feel more comfortable using the platform. I think it’s more self-preservation than empathy, but I think the effect could be an empathetic one if all goes well. But I also think it’s a HUGE undertaking that could go sideways pretty easily.

An internet appeals court is a real, tangible thing Facebook can give us, and it can have real, tangible results – controversial though they will be. Assurance that we won’t be manipulated by Macedonian trolls or bullied by classmates, or that we can post about our lives and ideas without unwittingly entering the thunderdome, is a lot harder to give.

Empathy for the hysterics

As I mentioned in a previous post, though we may want it to be – I believe empathy is not a magic bullet. It doesn’t miraculously make us stop fearing or hating or resenting each other. It’s a process, and in order for it to look like much more than listening, it has to be paired with things like love and compassion and action.

This morning, I read yet another call to empathy from a political expert. Attorney and Harvard Law professor Lawrence Lessig, who ran for president last year, published “Rules for a constitutional crisis” on Medium early this morning. He starts with personal history, explaining some of the impetus for his decision to become a lawyer, and goes on to argue for Congress’s vital role in addressing the “constitutional crisis” the country now faces under Trump. It’s really worth a read. But near the end, something confused me:

Because if America is to avoid slipping into civil war, the people we need to keep in focus are the people who elected Donald Trump. I get that the easy way to think and talk about those Americans is to call them racists, or sexists or idiots. No doubt there are some who are those (as there are some on the other side who are each of those things too). But it is neither true nor helpful to simplify this story into good versus evil. The citizens who elected Trump are not evil. And if America is going to survive this crisis, we need to convince them first that their President should not be President. We need to show them that their own values are consistent with ours, in this respect at least.

That won’t happen with hysterics. It won’t happen with violence. It won’t happen by behaving just as badly as Donald Trump is behaving. It will only happen if the opposition is, and seems, better than Trump. That is, if it inspires in all Americans—and especially a large swath of the supporters of Trump—a recognition of the ideals that we all know we are to embrace: the Constitution, the rule of law, and government officials who know their place within that system.

I’m not the only commenter who has asked, “What hysterics? What violence? Someone is ‘behaving just as badly as Donald Trump?’ Where!?” Though I actually agree with most of what Lessig says here, this kind of call for empathy reads to me more like a rebuke. It reads like it’s asking “the opposition” to practice empathy instead of calling for resistance, because the latter may be seen as “hysteria.” In my opinion, it creates a false equivalence that doesn’t seem helpful to anyone on either side (especially since there’s been little to no violence, it’s unclear who other than Trump – except maybe his core team – can be described to be behaving like Trump, and “hysterics” is an extremely loaded – and therefore not super useful – word).

I also think there’s an important difference between empathizing with someone and pandering to them. Am I saying that I believe the citizens who elected Trump are indeed evil? No! I’m simply saying that while empathy for them is important in understanding how we got here, I don’t believe that should trump (….) being honest about what’s happening, and how dire it might be. I also don’t believe, after many conversations with Trump voters, that liberals and/or Democratic congresspeople redirecting their energy from “hysterically” sounding the alarm to being more universally “inspiring” is going to change many minds. At least not right now. When people have been conditioned to see those who disagree as an enemy – and when this is the kind of spin those trying to win them over have to contend with – I’m not sure any change in tone is going to make a big difference. We know people tend to just get more entrenched in their own beliefs the more we try to convince them they’re wrong, anyway (though presenting good reasoning and facts can sometimes be persuasive).

What’s that saying about “drastic times and drastic measures?” Is it ever legitimate to get a little “hysterical?”

Facebook and the first amendment

Looks like I’m not the only one trying to figure out how and why things happen on Facebook. The U.S. Supreme Court is paying a lot of attention to the social network right now, but the stakes are a little higher than my “can I be calmer and happier without it” experiment. SCOTUS is in the middle of hearing a case that centers on whether and when a Facebook rant morphs from obnoxious but First Amendment-abiding screed to illegal threat.

In Elonis v. United Statesthe government argues that if a “reasonable person” would interpret a Facebook post as a threat, the poster should be subject to a criminal conviction. The lawyer for the man whose Facebook posts are at issue in this case, however, argues that the authorities should have to prove that the poster intended his or her words to be taken as a threat.

After oral argument on Monday, observers said the biggest stumbling block seemed to be finding a legal standard of proof. The problem arises from the court’s reading of the relevant law. The law says threatening someone is illegal, but the court has determined that this only applies to “true threats.” But it isn’t completely sure what it means by that…

Once that, and the definition of a “reasonable person,” get sorted out, it’s clear that the implications could be widespread. In this case, a Pennsylvania man named Anthony Elonis posted notoriously violent Eminem lyrics on his Facebook page, directing them at his estranged wife. His lawyers say posting rap lyrics is clearly for entertainment purposes only, but his wife and law enforcement officials felt differently. Elonis didn’t soak his wife’s body in blood from “all the little cuts,” as the lyrics suggested he might. Would he have done it if the police weren’t called? What was his actual intent? Is it possible to know? And is it possible to know how many actual violent crimes have been committed after similar social media posts? Eliot Rodger left behind some frightening tweets and YouTube videos, and many people questioned whether stricter and more clear guidelines surrounding online threats might have prevented his rampage.

Though confusion abounds, Justice Scalia did suggest on Monday that he might be leaning more toward the government’s side in this case.

“This sounds like a road map for threatening a spouse and getting away with it,” he said during the hearing, according to CNN.

So, if you’re still on that soul-sucking site, be careful what you post. (And, of course, it’s generally good practice not to threaten people anywhere, online or off!)

It’s time to talk about Hobby Lobby

I’ve spent the last few days absorbing the Supreme Court’s decision earlier this week to allow craft store chain Hobby Lobby an exemption from covering certain types of birth control based on religious objections.

It’s been an interesting task to reconcile my thoughts about this both as a woman and as a reporter who often writes about the law. I can’t ignore that feels like a step back for women’s rights, but at the same time I know the reality is much more nuanced.

Instead of posting a rant about all of the reasons I am frustrated with this decision (if you are friends with me on Facebook you’ve probably seen enough of that!) I’m going to focus on what it might mean going forward. (And I should pause here to note that this post – and all posts here- reflect my personal views, and not those of my employer).

In conversations about this decision, there seem to be a few main lightning rods – whether or not Hobby Lobby’s fears about the IUD, Plan B and Ella (that they cause abortions) are factually accurate, whether or not birth control is or should be considered medically necessary, and whether everyone is just overreacting because, as the Court said itself, this was a “narrow” ruling.

I want to address the last point, because I think this ruling is anything but narrow. We can talk about technicalities: technically, this was just about Hobby Lobby, and just about four types of contraception. But the legal system works the same way the rest of the world works: give people an inch, and they will take a yard, a football field, a mile. The wording of the decision left significant room for interpretation, and whether or not you agree, what happened at the Court the day after the Hobby Lobby decision is significant.

On Tuesday, while people were trading think pieces and jabs on Twitter, the Court issued orders in six additional cases that suggest Justice Ginsburg’s description of the Hobby Lobby ruling as having “startling breadth” may be an understatement.

You can see the details on SCOTUSblog in the link above, but in three cases in which a federal appeals court had rejected companies’ request for a religious exemption from the contraception coverage mandate in the ACA, the SCOTUS asked them to reconsider. And the Court refused to take up appeals in three other cases in which exemptions were allowed by lower courts.

It’s true that when the Court makes a huge decision like this and then is faced with similar cases, it sometimes directs the appeals courts to go back and rethink their rulings based on the new precedent set by the highest court. But the split of these decisions – asking those who rejected exemptions to reconsider and denying requests to review exemptions that were granted – does seem to suggest a trend.

Time will tell.

Michael Hiltzik expressed some of my other questions and concerns in a piece today over at the LA Times. Namely: how do we know to believe someone who says they have a religious objection? Is there, and should there be, a test? Is that anathema to the secular nature of our judicial system? I recommend checking out his piece, as well as reading all of SCOTUSblog’s analysis, since they seem to be just about as close to the Court as one can get.

And if you want to get really annoyed and/or depressed, depending on your view of all this, check out this Mother Jones’ piece about how this decision may have….killed the corporation?

Why don’t more women make it to equity partner status in BigLaw?

The legal trade publication I work for, Law360, is in the midst of a series about women in law based on some data we gathered over the last few months. The data, as you might expect, is not super encouraging if you are hoping for gender parity in one of the nation’s most lucrative and powerful industries.

I can’t give too much away here (that’s what people buy subscriptions for!) but I wanted to quickly make note of something I discovered about the uphill battle to achieving equity partnership at a BigLaw firm while reporting my contribution to the series.

The biggest takeaway for me was this: while there is certainly the sense that women have a disproportionate burden to make the choice between family and a successful career — and in BigLaw as in other high-intensity careers that is indeed a choice many women feel they have to make — and this is likely a major reason that only a small percentage of equity partners are women, it’s only part of the story.

The bigger issue may be that women are blocked early in their careers from some of the vital client-making opportunities that their male counterparts have access to, often simply because some men still don’t feel comfortable mentoring, working with or giving credit to female attorneys.

To see what female equity partners and experts believe is behind the persistence of these ideas, check out the story — and others in the series by my colleagues, complete with our numbers on women in BigLaw at the 400 largest U.S. firms — here.

Journalism After Snowden

On Thursday night, I headed up to Columbia after work for the J School’sJournalism After Snowden panel. It was the inaugural event in what, according to Tow Center for Digital Journalism leader Emily Bell, will be a year-long project aimed at considering how journalism has changed in the wake of Edward Snowden’s leaks and the media’s coverage of them. Bell also mentioned that the Tow Center is working on new tools to help investigative journalists with stories like this one.

The panel included Guardian US’s EIC Janine Gibson, NYT Executive Editor Jill Abramson, legal scholar and former Obama administration “regulatory czar” Cass Sunstein and First Amendment attorney Dave Schulz.

It was an enlightening discussion, heated at times, touching on both the strides and mistakes the media made in the aftermath of Snowden’s leaks. Gibson gave a riveting recap of how the Guardian US got the story, describing everything from Glenn Greenwald’s first phone call to the extreme measures that had to be taken to ensure secrecy while maintaining journalistic ethics and not breaking the law. And Abramson answered Bell’s question about whether it was a “failure of the press” that everyone was so shocked after the information leaked with a resounding “no.” The media has not been asleep, she said, the fact that Snowden had to break the news was just a testament to how big the problem is.

And from the attorneys came a call to action: both Schulz and Sunstein argue that we need a better definition of “privacy” in this country.

I live-tweeted the event, and below are a few of the comments from the panelists that resonated with me. Unfortunately, the CMS I’m using doesn’t support embedding Tweets, so these are screen caps. (Side note: the #aftersnowden hashtag had an interesting impact outside the journalism community/those who were actually at the event. I saw unaffiliated users talking about how they felt less secure online #aftersnowden, while others questioned why we were talking about “after” when the story is still unfolding.)

I meant to say *and* here, not *as,* but Sunstein made an interesting point — it’s a bit of a cop out when the government uses “maintaining a ‘balance'” as an excuse for undue surveillance/persecution of journalists/lack of transparency. 

Schulz also noted that while the US AG recently said that he would “not prosecute journalists for doing journalism,” we don’t have a clear, legal definition of “doing journalism.”

Is one OK for the government to gather/keep and the other not? Why?And how have Snowden’s leaks and the government’s response to the media’s coverage impacted journalism? The following two quotes from Abramson and Gibson sum it up, and it’s not a pretty picture.

That last comment really stuck with me. On several occasions, prosecutors have attempted to accuse journalists of violations of the Espionage Act, and Greenwald has been labeled a “co-conspirator” of Snowden’s. The legal scholars recommended (to the government) a re-reading of the Espionage Act, and a re-acquaintance with its historical context, while the editors expressed uncertainty about what might come next. Members of the Guardian staff are still being investigated for their alleged part in Snowden’s leak, and if the executive editor of the New York Times says the fallout is chilling sources, if not reporters, it’s clear the impact has been huge. But is it irreversible?The recommendations made by Sunstein and his colleagues about personal privacy are a step in the right direction, but I think when it comes to avoiding the criminalization of journalism, we may need to move toward Schulz’s suggestion of establishing an official standard of “doing journalism.”