Media Mentions

An op-ed by Evelyn Douek: No one has set any clear standard about how badly a politician can break Facebook’s rules before getting kicked off the platform, and yesterday the company’s wannabe court missed a chance to fill the void. In a decision anticipated with the fervor that might attend a high-profile Supreme Court ruling, the Facebook oversight board told the platform that, while it might have been right to ban then-President Donald Trump on January 7 for his role in stoking the Capitol riot and because of the risk of continuing violence, the ongoing “indefinite” nature of the ban is not justified. The board gave Facebook six months to go back to the drawing board and work out what to do with Trump’s account now. But this is the exact question Facebook had asked the board to settle. The board respectfully declined. In fact, the board’s decision resolved essentially nothing—except that Facebook wasn’t exactly wrong on January 7—and leaves open the possibility that this whole charade will happen again before the year is out.

Facebook tried to pass the buck on former president Donald Trump, but the buck got passed right back. For several years, Facebook chief executive Mark Zuckerberg has pushed the idea that he and his company shouldn’t be in the position of creating the rules of the road to govern the personal expression of billions of people. He went so far as to dedicate $130 million to fund an independent panel of outside experts to which the company could outsource the thorniest decisions about what types of content — and voices — should be allowed to stay up on Facebook...But on Wednesday, the 20-member panel punted the decision back to Facebook, recommending the company decide within six months whether to permanently ban or restore Trump’s account. He is currently suspended “indefinitely,” a one-off penalty outside Facebook’s usual rules. The board, set up to act as a “Supreme Court-like” body to police Facebook’s content decisions, scolded the company for trying to pass it off, too...Others said it was the board refusing to do its job. “Their role is to constrain Facebook’s, and Mark Zuckerberg’s, discretion,” wrote Evelyn Douek, a Harvard Law School lecturer, in a Lawfare article Wednesday. “The [Facebook Oversight Board] has declined to do that almost entirely, and did not even provide meaningful parameters of the policies it calls on Facebook to develop.”

President Biden is seeking about $2 trillion in higher taxes on companies over 15 years to pay for his infrastructure plan. But corporations are just entities composed of people, so if corporate taxes go up, who ultimately pays? The Biden administration says the greater tax burden would fall largely on high-income shareholders of profitable companies that wouldn’t reduce investments even if taxes rose. That view makes the corporate tax a useful tool for redistributing income and taxing people the U.S. individual-income tax can’t always reach...Economists have long puzzled over the question of who pays the corporate tax. “This is one of the great mysteries in public finance, and so empirical estimates are people feeling around to try to figure it out,” said Mihir Desai, a finance professor at Harvard Business School...Mr. Desai said lawmakers concerned about income distribution should focus more on assisting poorer households and less on raising corporate taxes that could slow investment. “The puzzle to me about the entire debate is just how quickly the corporate tax got mired in this issue of fairness when we know the [effect] is so unclear,” he said.

In a decision announced Wednesday, Facebook’s new Oversight Board sustained the social media giant’s initial decision to deplatform President Donald Trump in the wake of the January 6 Capitol insurrection. But the panel also criticized the company for imposing “the indeterminate and standardless penalty of indefinite suspension,” and demanded it review that decision within six months. Harvard Law School Professor Noah Feldman first proposed the idea of the Oversight Board to Facebook, helped design it, and continues to advise the company on issues related to free expression. Harvard Law Today spoke to Feldman about the panel’s ruling, the board, and the criticism both have received.

In this era of misinformation, and claims of "fake news," the truth is essential — and in question. Noted historian Jill Lepore joins us to talk about the second season of her podcast "The Last Archive," which tracks the rise of doubt through the last 100 years of American history. Lepore is also a Harvard professor, author, and staff writer at The New Yorker.

Facebook's Oversight Board is expected to make its decision public today on whether or not former President Donald Trump will be allowed to return to the platform after a January ban following the deadly assault on the Capitol, accusing him of inciting the violence. Laurence Tribe, professor emeritus of constitutional law at Harvard Law School, joins CBSN AM to discuss.

An essay by Jeannie Suk Gersen: The story of Mahanoy Area School District v. B.L. began when Brandi Levy, a high-school freshman in eastern Pennsylvania, was passed over for the varsity cheerleading team. Levy took to Snapchat to express frustration...According to a coach, some students who saw the posts were “visibly upset” and found them “inappropriate.” Levy was suspended from cheerleading for a year for violating the team’s rules, which require that students “have respect” for the school, coaches, and teammates, avoid “foul language and inappropriate gestures,” and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches...on the internet.” The coaches as well as the school district also maintained that she violated a school rule that athletes must conduct themselves during the season “in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” Levy, represented by the American Civil Liberties Union, filed a lawsuit, alleging that her suspension from the team violated the First Amendment. Last week, the Supreme Court heard oral arguments in the case, which the Justices understood not only to raise the question of whether public schools may discipline students for speech outside of the school-supervised setting but also to implicate public schools’ power to punish students for discrimination, harassment, and bullying.

Facebook’s Oversight Board on Wednesday upheld the social network’s temporary suspension of Donald Trump but declined to decide when, or whether, that ban should be lifted. The decision dashed the former president’s hopes for a swift reinstatement by a body charged with reviewing the platform’s content moderation practices. But it also sent a message that the scope of the board’s power is limited and that the ultimate responsibility for these questions still lies with Mark Zuckerberg and company...Evelyn Douek, a lecturer at Harvard Law School who has chronicled the board’s evolution, told me she’s seen evidence in its early decisions that “the board is chafing against the very limited remit that Facebook has given it so far.” She would like it to go farther in pushing for transparency. For instance, she said, it could call on Facebook to reveal the Trump ban’s impact on an internal metric that it calls “violence and incitement trends.” The board did take a small step in that direction on Wednesday. Among its policy recommendations, it called for Facebook to undertake a “comprehensive review of its potential contribution to the narrative of electoral fraud and the exacerbated tensions that culminated in the violence in the United States on January 6.”

An article by Evelyn Douek: The long international nightmare is not over. By now, you will have read that on Wednesday the Facebook Oversight Board (FOB) upheld Facebook’s Jan. 7 restriction on former President Donald Trump’s account, largely on the basis of the ongoing violence at the time of the posts that led to the ban. But the FOB did not settle the matter for once and for all: It punted the question of what to do with the account now back to Facebook. It dinged Facebook’s “indefinite” ban as a “vague, standardless penalty”—“indefinite,” according to the FOB, is very much not synonymous with “permanent.” Now, Facebook has six months to conduct a review of what to do with Trump’s account. The decision is meaty and educational. It contains a number of recommendations which, if Facebook follows, will significantly improve the clarity and mitigate the arbitrariness of Facebook’s decision-making. It is also an attempt to split the baby—not letting Trump back on, but also not demanding a permanent ban of his account—and to avoid the inevitable controversy that would have attended any final decision.

A story by Annette Gordon-Reed: When I was growing up in Conroe, Texas, about 40 miles north of Houston, my classmates and I took Texas history twice, in the fourth and seventh grades. We learned about Texas’s history in the United States, its previous existence as a republic, and its time as a province of Mexico. Among other things, we were exhorted to “remember the Alamo” and “remember Goliad,” famous events in Texas’s fight for independence from Mexico. Some other aspects of the state’s history were less covered. I didn’t need school lessons to tell me that Black people had been enslaved in Texas, but in the early days of my education, the subject was not often mentioned. Some of our lessons did, however, involve the “period of Spanish exploration.” And I remember hearing in those lessons stray references to a man of African descent—a “Negro” named Estebanico—who traveled throughout what would become Texas. Estebanico was described, according to Andrés Reséndez’s book A Land So Strange: The Epic Journey of Cabeza de Vaca, as a “black Arab from Azamor,” on the coast of Morocco. A Muslim, he had been forced to convert to Christianity and sold away from his home to Spain; he eventually found his way to Texas in the company of the famous explorer Álvar Núñez Cabeza de Vaca. He arrived in the area of the future Galveston, where Union General Gordon Granger would proclaim the end of the Civil War and the end of slavery in Texas more than 300 years later, on the day now known as Juneteenth. Estebanico’s journey across Texas as an interpreter for Cabeza de Vaca made him one of the first people of African descent to enter the historical record in the Americas.

Asian American and Pacific Islander elected officials make up just 0.9% of elected leaders in the U.S., despite AAPIs accounting for 6.1% of the population, according to a Reflective Democracy Campaign report released Tuesday. Why it matters: The report comes amid growing calls for greater AAPI visibility, following two mass shootings in which East Asian women and Sikh Americans were killed. The country has also witnessed a yearlong spike in anti-Asian incidents. Asians are the fastest-growing racial group in the U.S. and are projected to become the largest immigrant group by 2055. Without adequate representation, governments are unable to serve vulnerable AAPIs with the cultural competency and language access they require...The bottom line: "The people making and carrying out the political choices that affect AAPI communities don’t reflect them," said Premal Dharia, executive director of Harvard Law School's Institute to End Mass Incarceration, per the Reflective Democracy Campaign. "It is imperative that this change."

In February 2019, the U.S. Department of Agriculture (USDA) made a significant—and apparently secret—change to how it oversees laboratory animal welfare, Science has learned. Instead of fully inspecting all of the nearly 1100 facilities that house monkeys, rabbits, and other creatures used in biomedical research, it mandated partial “focused” inspections for labs accredited by a private organization of veterinarians and scientists called AAALAC International. Such partial inspections violate the Animal Welfare Act, argues Katherine Meyer, director of Harvard University’s Animal Law and Policy Clinic, which discovered the change after law student Brett Richey combed through more than 1000 pages of internal USDA documents. The federal law states that USDA must enforce “minimum requirements for handling, housing, [and] feeding” of research animals, as well as adequate veterinary care, Meyer notes. “How do you ensure that labs are in compliance with those standards if USDA is doing incomplete inspections?” ... Meyer argues that AAALAC itself is problematic. She and others in the animal advocacy community have long contended that the organization is not an appropriate substitute for USDA because it only inspects institutions every 3 years, is made up of many of the same people that run animal research facilities, and—unlike USDA—schedules inspections in advance rather than showing up unannounced.

The Republican Party appears to be signaling they want to essentially excommunicate from leadership Congresswoman Liz Cheney of Wyoming. Tennessee Republicans want to ban lessons on systemic racism in schools. President Joe Biden aims to vaccinate 70 percent of adults by July 4th. Tomorrow, Facebook’s oversight board is set to announce whether Donald Trump can return to the company’s platforms. Guests: London Lamar, Michael Lewis, Evelyn Douek, Adam Conner.

If the sweeping voting rights bill that the House passed in March overcomes substantial hurdles in the Senate to become law, it would reshape American elections and represent a triumph for Democrats eager to combat the wave of election restrictions moving through Republican-controlled state legislatures. But passage of the bill, known as H.R. 1, would end a legislative fight and start a legal war that could dwarf the court challenges aimed at the Affordable Care Act over the past decade. “I have no doubt that if H.R. 1 passes, we’re going to have a dozen major Supreme Court cases on different pieces of it,” said Nicholas Stephanopoulos, a law professor at Harvard...Even if every one of the objections to the bill discussed in this article were to prevail in court, most of the law would survive. “Part of why the attack on H.R. 1 is unlikely to be successful in the end is that the law is not a single coherent structure the way Obamacare was,” Professor Stephanopoulos said. “It’s a hundred different proposals, all packaged together.” “The Roberts court would dislike on policy grounds almost the entire law,” he added. “But I think even this court would end up upholding most — big, big swaths — of the law. It would still leave the most important election bill in American history intact even after the court took its pound of flesh.”

A podcast by Noah Feldman: During the pandemic, we’ve been looking at our screens more than ever before. As the country starts reopening, what do we do about our kids’ extreme attachment to their devices? How should we think about it and do we need to do anything about it? Parenting expert Dr. Wendy Mogel joins us to discuss these deep questions about pandemic parenting. Dr. Mogel is the author of “The Blessing of a Skinned Knee” and host of the podcast Nurture vs. Nurture.

Professor and author Annette Gordon-Reed continues her week-long discussion on Morning Joe of the themes in her new book 'On Juneteenth'.

On Jan. 6, as an angry mob stormed the U.S. Capitol, President Donald Trump posted on Facebook that his supporters should “remember this day forever.” “These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long,” he said in a post. In response, Facebook did something it had resisted for years: banned Trump’s account indefinitely for inciting violence...The Oversight Board is evaluating the determination — which Facebook says was made during extenuating circumstances — at the company’s request. Facebook says the rulings of the independent, 20-member body are binding. The company does have a hand in picking board members, which include a Nobel laureate and a former Danish prime minister, and paying them through a separate trust. “This is just the start of an experiment, but it can’t be where it ends.” said Evelyn Douek, a lecturer on free speech issues at Harvard Law School. “In some sense, we are all playing Facebook’s game by taking the Board seriously as a legitimate institution. On the other hand, no one has a better alternative right now.”

Former President Donald Trump will find out this week whether he gets to return to Facebook in a decision likely to stir up strong feelings no matter which way it goes. The social network’s quasi-independent Oversight Board says it will announce its ruling Wednesday on a case concerning the former president. Trump’s account was suspended for inciting violence that led to the deadly Jan. 6 Capitol riots... “If they reinstate him, Facebook will claim this proves the Board’s independence. If they don’t, Facebook will say its judgment to exclude Trump was vindicated. Heads they win, tails we lose. Journalists should know better than to take this window dressing seriously,” said Laurence Tribe, professor at Harvard Law School and member of the Real Facebook Oversight Board, a group critical of Facebook and its panel. Facebook created the oversight panel to rule on thorny content on its platforms in response to widespread criticism about its inability to respond swiftly and effectively to misinformation, hate speech and nefarious influence campaigns. Its decisions so far have weighed on the side of free expression vs. restricting content.

An op-ed by Jesse Fried: Nasdaq recently asked the Securities and Exchange Commission (SEC) to approve new diversity rules. To avoid forced delisting, a firm must “diversify or explain”: either have a certain number of “diverse” directors or say why it does not. In its proposal, Nasdaq tips its hat to the social justice movement. But investors should be nervous. Rigorous scholarship, much of it by leading female economists, suggests that increasing board diversity—which Nasdaq’s rules will likely pressure firms to do—can actually lead to lower share prices. The rules aim at ensuring Nasdaq-listed firms with six or more directors have at least one self-identifying as female and another self-identifying as an underrepresented minority or LGBTQ+. Nasdaq CEO Adena Friedman says “there are many studies that indicate that having a more diverse board… improves the financial performance of a company.” But while Nasdaq’s 271-page proposal cites studies finding a positive link between board diversity and good corporate governance, it fails to cite a single well-respected academic study showing that board diversity of any kind leads to higher stock prices, the outcome investors actually care about.

Facebook’s Oversight Board, otherwise known as Facebook’s supreme court, could soon come back with a decision on whether or not to reverse Trump’s ban from the platform. The Oversight Board was created in 2019 to review appeals around free speech. Plus, the Fortnite fight with Apple. And, the push to remember the Tulsa Race Massacre 100 years later. Guests: Harvard University constitutional law professor Noah Feldman and Axios' Ina Fried and Russell Contreras.

As income inequality steadily deteriorates, and President Biden explores one-time fixes like increasing corporate taxes, more durable solutions are needed to deal the root cause of growing inequality: the goal of big business. That, in turn, would require understanding how most business remains committed to extracting value from the economy, rather than the more profitable, more productive, more worthwhile path of value creation...Criticism of big business became so intense that in August 2019 major corporations issued a declaration through the Business Round Table that maximizing shareholder value was no longer the goal of business and vowed to help all stakeholders. However, in the period since the BRT declaration was issued, Harvard Law Professor Lucian Bebchuk and his colleagues have not detected significant change in corporate behavior. Few of the signatory CEOs obtained the approval of their boards to sign the announcement. Massive share buybacks that benefit shareholders, particularly executives, continue to flourish, even where there has been a collapse in profits. Bebchuk concludes that the BRT statement was “mostly for show.”