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CAN THE FACEBOOK OVERSIGHT BOARD BUILD LEGITIMACY IN 

THE ABSENCE OF THE STATE?  
  

 

John Smith, Jane Doe 

Toronto Metropolitan University, Canada  

  

Abstract: This article examines the role of the Meta Oversight Board in regulating content on Facebook and 

Instagram. The board is an independent body that was created by Meta to review content decisions made by the 

company. The board has the power to overturn Meta's decisions, and it has issued a number of rulings that have 

challenged the company's content moderation practices. The article discusses the implications of the board's 

rulings for the future of content moderation on social media. 

Keywords: Meta, Facebook, Oversight Board, Content moderation, Artificial intelligence, State regulation  

  

 

Introduction 

There’s a crescendo in the struggles—ubiquitous and intense—to find and implement a satisfactory societal 

response to the severe and seemingly intractable content problems imputed to social media. Social media have 

been deemed tools, among other things, for promoting genocide, corrupting elections, transmitting live mass 

killing, and facilitating lynch mobs. Governments are destabilized, ancient loyalties called into question, 

polarization intensified, and sovereignty threatened. Human rights advocates, regulatory agencies across the 

globe, social media users, and consumers all invoke the impact of social media as contributing to profound ills. 

Much of the debate has centered on the need to find mechanisms for adequate content moderation, without quite 

knowing the metric for adequacy. The standard litany is that these platforms bring enormous benefits and produce 

opportunities for democratic participation, personal expression, and economic expansion. Unregulated and 

unchecked, they transmit and even organize existential dangers to persons, communities, and institutions. An 

intense and almost desperate search for modes of addressing these issues has engaged legislators, citizen groups, 

advertisers, and courts, among others, confounding democracies and preoccupying authoritarian regimes. 

Confusion and uncertainty have led governments and media platforms to ad hoc, inconsistent, and censorial 

exercises of control as a way of coping with threat, incitement, disinformation, and hate speech. Scholarly critics, 

stakeholders, and politicians, not to mention larger publics, find major grounds for questioning the capacity and 

the authority of platforms to address the problem of balanced and adequate content moderation.   

The scale of the problem of moderation alone is crippling, or certainly seems so. And Meta, to take a prominent 

platform, was and is plagued by a structural issue: Its financial model and economic interest are often antithetical 

to the needs and standards for policing the forum. Conflicts of interest are coupled with a worrying absence of 

the state as regulator. The dilemma of moderation in a context of anemic authority is central to understanding 

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some Facebook initiatives. In this brief feature article, we look at an effort by Meta to experiment with approaches 

to content moderation that increase or attempt to increase the legitimacy of its actions. In particular, we chart the 

implementation of the Facebook Oversight Board as a suggestive instance of how these initiatives emerge and 

how elements of legitimacy appear to be forged (Douek, 2019).  

A few words about legitimacy as we see its relevance. Legitimacy as a concept has displayed considerable 

pliability (Deephouse & Suchman, 2008, pp. 49–50). Researchers have treated it as a property, as an interactive 

process of legitimation, and as a perception (Suddaby, Bitektine, & Haack, 2016, p. 451). We treat legitimacy as 

having characteristics of each approach: Legitimacy is a property with attributes that can be ascribed to it, 

legitimacy is a dynamic, unstable process involving multiple, conflicting actors, and legitimacy is a set of 

perceptions—something is legitimate because it is perceived to be. As a shorthand, we point to Marc Suchman’s 

(1995) definition of legitimacy as “a generalized perception or assumption that the actions of an entity are 

desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and 

definitions” (p. 574). “Legitimacy” is thus not an intrinsic property of an entity; it is a social relationship where 

legitimacy is conferred by one or more publics. For the purposes at hand, we lay aside the role of the state since 

we are focused on attempts by media platforms to pull themselves up by their own bootstraps, so to speak, 

creating mechanisms that bestow, build, or attract legitimacy.  

Legitimacy Deficits  

We characterize the problem facing many platforms as a “legitimacy deficit,” namely a gap between the 

governance tasks various constituencies expect of them and the absence of an environment, agent, or institution 

that authorizes or directs performance of those responsibilities. These deficits have an ironic turn. Societies 

demand that the platforms be more responsible but condemn them for overreaching (or undermanaging). 

Legitimacy needs are heightened where there are aspects of regulatory failure: a gap between what a society 

anticipates a regulatory effort should accomplish and what it can or does, in fact, accomplish. A concept of 

regulatory failure presupposes that there is some level or range of expectation that the society (through a 

combination of efforts) or a particular actor can muster to be able to effectively respond to a cohort of regulatory 

needs.  

A regulatory failure can precipitate a legitimacy deficit, and the standard responses include lowering or otherwise 

adjusting public expectations or improving platform performance if the entity is to flourish or even survive. 

Content moderation is an area where these concepts are frequently in play with shifting public demand or 

expectation. Legitimacy deficits also stem from ambiguities in setting goals for evaluating performance. Or one 

can also think of platform content moderation in at least two other ways foundational to legitimacy enhancement: 

decision-making as theater (a focus on the appearance of meeting pre-existing standards), or performance as 

direct accomplishment (see Douek, 2022). Demand for fiercer content moderation exists when, for example, 

there are threats to the body politic (terrorism, pandemic) when social media is thought to be a substantial 

contributor to societal breakdown and danger, and other occasions when demand for intervention arises. The 

critical mix of interests in various jurisdictions will result in different gestures of demand for regulation. Different 

sovereigns have different intensities of interest at different times.   

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In the absence of regulatory action, Meta and other platforms are both required and desire to act as a state 

surrogate (though eschewing the implications). Self-regulation becomes the preferred way to close legitimacy 

deficits and address regulatory failure. This may have fed expectations that social media could and should take a 

central role in content moderation. As a result, however, platforms often find themselves in contradictory 

situations, especially if one considers that various publics have different standards and expectations for content 

moderation. For some free-speech advocates, it is the platforms’ very restraint in moderation that is itself 

legitimizing, whereas for many others, this same restraint has been tantamount to a disavowal of technical, 

political, and ethical responsibility to intervene. Most platforms face versions of this same dilemma. Their 

substantial impact on society underscores the need for measures that help to confer legitimacy. Here, too, what 

we have called the absence of the state is significant. The legitimacy deficits can grow to yawning dimensions.   

We contend that a regulatory configuration in which “the state” plays too limited a role leads to a special need 

for manifestations of legitimacy. In modern history, the formal default entity for conferring legitimacy on 

institutions purporting to govern (including self-governing institutions) has been the state. One form this takes is 

through state credentialing and state regulatory processes.   

Particular states may be absent under many conditions or for any number of different reasons: The technological 

gap between platform manager and state may be too great, the jurisdictional barriers too daunting, the 

understanding of the dynamics of use and impact too great. Absence of the state exists in another relevant 

category: where a pre-existing set of rules, including basic or constitutional tenets bars or  constrains a state from 

adjusting to the demands that accompany a new technology. The First Amendment to the United States 

Constitution can be read as a constitutionally imposed “absence of the state” in an environment where state 

involvement (in the form of content moderation) seems an increasingly poignant prerequisite for societal 

functioning. In some settings, the absence is a consequence of the sheer size of the management challenge or 

because the governing institutions are fictions. Some societies function in circumstances where the state, or its 

fragments, are the consequence of unrealized dreams or remnants of dissolved or abandoned social arrangements. 

Of particular interest for our argument are circumstances where the state or some version of it chooses not to 

exercise authority, possibly for reasons of regulatory capture. An analysis of “absences” would show a wide range 

(from incapability to restraint to disdain), with implications for their legitimacy-conferring powers. While we 

include the previously mentioned examples of limited state involvement as “the absence of the state,” we 

acknowledge great differences among them. One could argue that the state is never wholly absent but often 

masked and hidden.   

This experience should not yield hasty conclusions about performance, but it can produce a new vocabulary of 

actions designed to illuminate and implement stakeholder goals. For example, Meta can be seen as a strategic 

communicator with resources and power that enable it to act in ways that lead to a rapid and expert identification 

of objectives and the capacity to implement them, surmounting existing legal obstacles and bypassing existing 

formal legal structure.   

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The Facebook Oversight Board  

In this climate, what most prominent social media companies seek is what we could call functional legitimacy. 

They would like to earn sufficient legitimacy in content moderation to buffer insistent and potentially costly 

critiques. The Oversight Board was intended to be a deliberative body or tribunal that would be relatively 

independent of Meta and its administration, provide opportunity for appeal by Facebook users whose work is 

taken down, and more generally provide oversight of the platform’s standards, practices, and evolving norms. 

An account of the creation and early implementation of the Oversight Board provides important insights into 

what we call “attributes of legitimacy.”   

Facebook’s history and evolution regarding the Oversight Board and its initial period of implementation is highly 

documented. A cadre of scholars helped establish a constructive, informed, engaged monitoring tone that has 

served Facebook (and a community of scholars) quite well as the idea for such a mechanism ripened. Kate 

Klonick (2018), in a magisterial Harvard Law Review article, “The New Governors: The People, Rules, and 

Processes Governing Online Speech,” comprehensively describes the state of play among platforms in the years 

just before the Oversight Board was conceived and implemented. In fastidious detail, her article documents 

varying strategies by Google, Facebook, and Twitter; internal processes of review; changing invocation of norms; 

and differing aspects of profit maximization of each platform. By 2015 or so, Facebook had already established 

a massive international apparatus of industrial scale dedicated to screening posts and managing material, which 

was the subject of complaints, including complaints by states. By then there were already thousands of 

individuals employed as content moderators for Facebook, often as contractors with varying levels of training, 

working under conditions often criticized as grueling and worse (Satariano & Isaac, 2021). And behind this 

army—or ahead of it—was the insistent scope of artificial intelligence or moderating by algorithm.  

The stakes became more articulated, the gulf between social needs, global demand for moderation, and existing 

performance clearer. An insistent and unsatisfying pattern had emerged: There were public crises (e.g., massacres, 

tense elections with violent aftermath, terrorist acts, a pandemic, a corresponding mass vaccination campaign), 

in which information spread played a part. In their wake, governments sometimes demanded intensified attention 

to content moderation, launched inquiries, or engaged in harsher actions, such as shutting down a platform. In a 

series of posts, Mark Zuckerberg, cofounder and CEO of Facebook, lofted the idea of a qualified appeals process. 

The degree to which legitimacy was at risk and the continuing difficulty in finding acceptable state approaches 

created an opening for a comprehensive innovation. A strategic intervention would change the conversation 

between Facebook and its critics, taking some of the responsibility somewhat off Zuckerberg personally and 

rehousing and rearticulating the machinery of a regularized decision-making process to increase the likelihood 

of respect.   

In order to enhance the legitimacy of this innovation, Facebook organized a series of gatherings around the world 

to explore ideas and opportunities and consider initial board members, including eminent lawyers, civil society 

members, journalists, human rights activists, and academics (Klonick, 2021). In these gatherings, the 

distinguished participants discussed the possible role, procedure, and membership of a Facebook Oversight 

Board. It was as if there were recognition that, in the absence of a state, a set of rituals was needed to render 

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legitimate the not-quite-authorized. Consistent with the newness of technology, these gatherings, and the board 

structure that emerged as a quasilegal public sphere, was carved out through the use of popular media.   

Eventually, Facebook distilled from these meetings a structure for an Oversight Board and named prominent 

jurists, journalists, and human rights advocates. It is not too much of a leap to say that designers of the Board 

considered that legitimacy is conferred in part by the makeup of the individual members and their diversity 

overall. That is why there are among them experts in free speech, human rights, civil society, a former prime 

minister, a former UN rapporteur, a Nobel laureate, legal scholars, communication scholars, and feminists. This 

is a dramaturgy of seasoned, considered, circumspect professionals, with a diversity thought to guarantee a range 

of perspectives. These members were chosen because they were thought to be experienced at thoughtfully and 

collegially deliberating, skilled at making and explaining decisions based on a set of policies or principles, and 

familiar with digital content and governance.  

The Oversight Board and Attributes of Legitimacy  

The aspiration is that the insertion of this new element—the Oversight Board—becomes a productive and 

effective attribute of legitimacy. How that develops is a matter of careful and significant attention. The most 

immediate and consistent way in which the Board can add legitimacy is for it to exercise productive independence 

(not independence for its own sake, but independence that advances public goals) and for it to produce or 

influence changes in content moderation that are seen as effective and useful by a range of stakeholders. We 

observe several related approaches to this dynamic. In addition to emphasis on the quality of decision-making 

(cognizant of the limits suggested by Professor Douek, 2022), we would mention efforts at enhancing strategic 

narratives and strategic aspects of institutional design and reinforcing and deepening an epistemic community 

that enriches the public understanding of social media platforms.   

Attributes of legitimacy are refinements of decision-making processes that build confidence. They work on two 

levels. Agencies or institutional actors propose actions to improve operation, and they are advertised as ways to 

enhance capability and mastery. The Oversight Board becomes, in Facebook’s aspirations, an engine for 

articulating attributes, and is itself an attribute. One could see the Oversight Board as an exercise in selecting 

design elements that would, like beaux arts or classical architecture, create an institutional aesthetic of 

governance. Facebook’s elaborate consultations, global in scope, prior to establishing the Board, served as an 

opportunity to test what features would be particularly helpful in shaping a legitimacy-redolent institution.   

Certain attributes of legitimacy are immediately recognizable; they include characteristics of independence, 

transparency, assertions of commitment to free expression, the appearance and reputation for noncorrupt 

decision-making, public reasoning, and the capacity to navigate issues of sovereignty and jurisdiction. More 

aspirational attributes of legitimacy—as the Oversight Board develops—could include the Board’s enhanced 

capacity to put forward a satisfactory approach to extremely difficult and longstanding issues involving freedom 

of expression or finding the right formula for understanding the interplay among human rights norms and various 

constitutional principles. These attributes would strengthen the Board and therefore Facebook’s own content 

moderation. Legitimacy may increase if the Board becomes a more significant voice on larger law and policy 

questions. For example, legitimacy may be augmented if the Oversight Board helps develop a more accessible 

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vocabulary to meet expectations of remedy proportionality or to assist in the proper allocation of determinist 

power between human moderation and artificial intelligence. If other human rights tribunals begin to draw on 

the language or logic of the Oversight Board’s decisions, this will redound to the Board and, by extension, to 

Meta.   

Strategic Narratives  

The Oversight Board will, for its own purposes, try to shape narratives of authority, though, in doing so, friction 

may be created with Facebook. Calling the Board a “supreme court” is an example of shaping or misshaping a 

strategic narrative. So too would a failure to recognize the structural limits to achieving legitimacy (for example, 

through efforts to convey that an error can be largely avoided or that most underlying concerns can be readily 

addressed; Douek, 2022). And in its efforts to bolster legitimacy, Meta will have its own narrative for what role 

the Board should play and what the implications could be or should be for Facebook. There is not yet sufficient 

experience of how the Board or Facebook itself evolves, so we only begin to see the pressures and opportunities 

the Board has to innovate or develop a distinctive voice. The fuller narrative will emerge from a cluster of 

decisions, policy queries, and other actions. It will be affected by whether and how those actions come to hold 

significant precedent in Facebook’s subsequent operation.   

For Facebook, the Oversight Board can serve as a scaffolding for a calculated strengthening, a selfennobling 

activity. It can amplify a narrative that borrows from the language of the law and freedom of expression. The 

Oversight Board may deploy its subtle policy-related role to construct a suitable strategic narrative that goes 

beyond corporate opportunity. It already represents itself as an instrument of human rights. The narrative might 

include a response to globalism, an affirmation of freedom of expression and incorporate some mediation with 

state sovereignty. Policies concerning scope of translation may yield more languages where Facebook builds up 

technical expertise. The existence of the Board already makes the process seem much more dialogic, with the 

Board making policy recommendations and Facebook required to respond.   

Strategic Architecture  

Legitimacy can also be enhanced by addressing the institutional architecture or environment in which moderation 

decisions are made. The addition of the Oversight Board might remedy capacities wanting or missing in the 

original Facebook/Meta arrangements and constraints. The idea of an occasion for review is a popular one, 

especially if the review is conducted not by the original decision maker but by a more distant entity. In 

constructing the Board, attention was paid to making it appear to be an entity sharply differentiated from 

Facebook. Facebook is so byzantine, so overwhelming, so seemingly impervious to massive change that a 

proposal for improvement based on marginal change in content moderation practices could be uninspiring and 

simply bolster distrust. There are tens of thousands of moderators who engage in the taxing work of reviewing 

hundreds of thousands of posts and deciding which should be taken down; how these foot soldiers are trained, 

the guidelines they are to follow, how consistency is maintained in their work, how they engage with Community 

Standards, how and whether they are exploited, and how that affects their work are aspects for continued attention 

and reform. All this makes direct change of Facebook as a mode of gaining legitimacy a complex proposition 

from a public point of view. The Oversight Board could be characterized as just the reverse of the involuted, 

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sprawling culture of content moderation at Facebook. The Oversight Board provides an idealized and initially 

more controlled canvas on which a more ideal moderation process can be depicted, a contained sandbox of 

content moderation. Where Facebook is sprawling and profusely engaged, the Oversight Board is what might be 

called deliberately deliberate. The Oversight Board hardly scales, but here small is somewhat beautiful. The 

Board is where change in processes can be studied and discussed before being applied across the entire world of 

moderation.   

At the outset, the currency of achievement—the contribution to legitimacy—was measured in large part by the 

quality of process, global consultations, focus groups, and accumulated discussions. What was featured, 

highlighted as achievements, and celebrated in the blogosphere was the elaborate exercise in elicited 

collaboration. It was also important to delineate and broadcast how the Oversight Board would maintain 

independence in every way. For example, complexity and care are evident in the rules concerning the financing 

of the Board. An innovatively structured trust was set up to guarantee funds while confirming independence. 

Furthermore, the method of selection of the members of the Board and the details of length of service, 

compensation, and similar matters underscore how legitimacy of process was seen as significant in enhancing 

legitimacy.   

As the Oversight Board matures, legitimacy will turn, largely, on perceived quality of actions. These actions 

include choosing which cases to review, the decisions it renders in those cases, but also the nature of its dialogue 

with Facebook on policy questions and how much influence it eventually wields. In particular, there will be 

questions of whether the decisions of the Oversight Board sufficiently affect the course of decision-making at 

Facebook level. Put differently, how much of an actual impact will the decisions of the Oversight Board have on 

the massive Facebook apparatus (into human moderation and algorithmic review), and will these decisions 

reverberate in the outcomes of other platforms? Will the Board seek deeper involvement in the mechanisms by 

which that translation takes place? Thus, the legitimacy of the Board rests not only on its own performance, but 

also on Facebook’s performance vis-a-vis the Oversight Board.   

Creating an Epistemic Community  

We offer a final category of legitimacy building related to the Oversight Board. It involves how the Board is 

supported and continues to be supported by a broad consultative network. The Administrative Procedure Act in 

the United States is built, in large part, on the idea that agencies should give notice of proposed decisions and be 

willing to receive copious and presumably helpful comments on the potential action. Decisions gain legitimacy 

(or at least it is often so suggested) as various entities—administrative agencies, court, executive officials—have 

dialogues with constituencies and stakeholders who might enrich the decision-making process. Sometimes this 

is perfunctory, providing the illusion of inclusion; sometimes it is a mode of obtaining consensus, whether 

warranted or not. But the theory here is that the governing entity is stronger or engenders more respect or cause 

for adhesion if the discourse surrounding it is broader and deeper, part of a process of examining alternatives. 

Usually, the mandate for consultation is required by the state. There are different aesthetics and pragmatics of 

this interchange or process of engagement. It is at times mechanical or box-checking. In Habermasian terms, the 

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point is to create a domain of social life where public opinion is formed: a verdant, nondominated, noncorrupt 

public sphere often tailored to the specific entity or decision maker.   

One could read the formation of the Oversight Board as an intervention designed more formally to reengineer its 

relationship to a critical set of interlocutors. The procedures established to govern decisionmaking contain 

structured efforts to include comments from the public. And the launch of the Board has been the occasion for 

serious debates that bring together scholarly, governmental, civic, and business zeal. This has been a process that 

has involved academics writing alone and academics assembling in purposive formations, such as Stanford’s 

project on intermediary liability, the Information Society Project at the Yale Law School, or the Committee of 

Experts on Internet Intermediaries of the European Council. Building expertise has engendered large-scale 

foundation-funded studies. A valuable contribution to critical community building is the work of individual 

scholars, like Evelyn Douek (2019, 2020, 2022), who have become solo institutional critics, generating 

knowledge, advancing positions, and creating patterns of debate and discussion that raise the quality of decision-

making for the Oversight Board, governments, and other stakeholders.  

What emerges is what some might call an epistemic community, “a network of professionals with recognized 

expertise and competence in a particular domain and an authoritative claim to policy relevant knowledge within 

that domain or issue area” (Haas, 1992, pp. 2–3). Epistemic communities marshal information or knowledge to 

improve operation of an institution. In an inaugural article, Peter Haas (1992) provided four characteristics or 

typical features: a shared set of principles; a shared understanding of the way things happen, including problems, 

policies, and outcomes; shared ideas of what is acceptable; and a common enterprise, or shared goals (p. 3). 

When he first wrote about epistemic communities, Haas (1992) rooted his concept of an epistemic community 

within a formalist understanding of scientific expertise. But the coming together of scholars across disciplines 

suggests that the description of community can and does change. Mai’a Davis Cross (2012) has written of a more 

commodious set of characteristics that emphasizes the episteme, the core knowledge or knowledge system that 

undergirds a community.  

If, for Haas (1992), an epistemic community is predicated on shared values, shared understandings of the world, 

and a shared sense of what is valid or acceptable, the Oversight Board has a diverse set of understandings of the 

world and what is acceptable—and this is its virtue—indeed one could ask if it is diverse enough (Domino, 2020; 

Douek, 2020; McSherry & York, 2020). An epistemic community would be a locus for debating the role of human 

rights, justice as fairness, science and the scientific enterprise, rationality, rule of law, and other hallmarks of 

liberal democracy. This is part of the system of beliefs that provides a framework for a claim on legitimacy. An 

epistemic community brings together several senses of “legitimacy,” including not only expertise and legitimacy 

of process. The “community” implicitly buttresses the rightness and moral authority of the Board through what 

we could term “soft” legitimacy. What evolves may even be a shared sense of moral responsibility, which 

hearkens back to Lorraine Code’s (1983) notion of epistemic community as implying epistemic responsibility.   

Manufactured Legitimacy?  

We have titled this article “Manufacturing Legitimacy” as a tip of our hats to Herman and Chomsky (1988) and 

to emphasize the complex forces at play when institutions are introduced that seek to exude democratic values 

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but may shield, even with contrary intent, how pre-existing hierarchies are involved in creating the aura of 

authority. Addressing these crises of legitimacy, the responses have yielded a range of modifications. It is too 

early to determine how to assess the kinds and degrees of legitimacy that an institution like Meta requires to be 

effective, what deficits will be present and the capability of the system, through the Oversight Board and other 

mechanisms, to repair these deficits. By the end of its first years of operation, the relationship between the 

corporation and the Oversight Board was already manifesting strains. Issues of trust, jurisdiction, transparency, 

and capacity were providing tests of acceptability of the existing arrangements. Epistemic communities were 

cracking, new strategic narratives were being shaped, and what constitutes attributes of legitimacy could change. 

Rarely, if ever, has there been so great a gulf between the aspiration for meaningful and appropriate management 

and the capacity of available instruments to deliver a coherent and feasible system. So monumental is the impact 

of social media, so conflicted are the human rights standards and commitments to safety and security that 

standards design—especially when scale requires wholesale dependence on artificial intelligence—is almost 

impossibly complex. In that context, the Oversight Board’s careful deliberations and crafted decisions, coming 

at a measured rate, may appear quaint or largely irrelevant; yet, we have taken the position here that an 

experimental tribunal may potentially play an intriguing role in an emerging architecture of legitimacy, within 

the social media landscape and beyond.  

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