Constitutional Reasoning There and Back Again: The Facebook Oversight Board as a Source of Transnational Constitutional Advice

Abstract

The recently inaugurated Oversight Board is expected to increase transparency of content moderation on Facebook and Instagram. Rather than enforcing only corporate policies, however, the Board’s first decisions relied on ‘international standards of freedom of expression’. Using this development as a starting point, we ask how may freedom of expression restrict the dominance of private corporations over the digital sphere. In contrast to the literature that has explored this issue from a primarily court-centric perspective, we reconstruct the role of freedom of expression as a field of constitutional advice and theorize the role of the Oversight Board in this context. We argue that freedom of expression, in addition to being the subject matter of disputes before (supra)national courts and the Board, may be seen as both empowering and restricting community building and belonging in the digital sphere. While this facet of free speech is not new, it is likely to gain increased importance in the interaction between contemporary constitutional democracies and corporations that shape the digital. We place constitutional advice against this background and differentiate the uses it may have in the interaction between public and private power in the digital era.