Facebook attempted to legitimate its content moderation decisions by creating a quasi-judicial institution–the Facebook Oversight Board (FOB). In this essay, we argue that the FOB has so far failed to establish itself as a legitimate judicial institution due to an incomplete understanding of what grounds judicial legitimacy. Its decisions are rarely known or discussed in the communities they are meant to serve.
Facebook and the FOB intended to rely purely on the “professional autonomy” of law, depending on legal paraphernalia (courts, but also rule-based decision-making and reason-giving) to provide coercive decisions with a veneer of legitimacy. However, the FOB lacks another crucial element of judicial legitimacy: popular ownership. The decisions of the FOB are not perceived to be the “better self” of a community, as an emanation of its deeper values, perhaps because Facebook users, despite insistent propaganda, are not a community in any meaningful sense.