Freedom of speech and Social Media

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The purpose of this bill is to encourage the use of social media platforms to provide opportunities for public engagement, to express an opinion, respectfully debate ideas and policy, and receive public comment. 

Social media can be a great platform for expressing opinions and for robust debate.  All Americans have a right under our constitution to express themselves freely.  Social Media is often used to provide the avenue for this expression. 

Social media can also be a means of destroying reputations and livelihoods unfairly.  We have seen allegations made against judges, politicians, party officers, private citizens, and others that have spread like wildfire on social media.

Some of these allegations have been shown to be unfounded, and have been leveled to destroy or defame political opponents. With this bill, we want to ensure that elected officials do not use their office to level allegations or to like or share allegations unless they are supported by evidence and that every effort is made to investigate allegations before they are stated and or repeated as fact.

Legislators, citizens, and elected officials need the ability to state their opinions without fear of censorship or reprisal, AND Utahns deserve to have their reputations, and livelihood protected from unfounded, unproven, and defamatory allegations.  We need to do both. 

Social media is uniquely designed to spread information, whether true or untrue through the platforms themselves, and especially through functions such as liking and sharing. Using these functions a person can spread a message to their followers without comment, context, or proven veracity.  The person liking or sharing a message is assumed by the receiver to be responsible for or in agreement with the message, but, when using these functions, they lack the opportunity or ability to qualify their intention regarding the reason for liking or sharing.

Elected officials are particularly susceptible to this, as their constituents may reasonably believe that the things they like or share are true because of the reputation or position held by the sharer or liker.  It is not an unreasonable assumption, for example, for a Utah Citizen to believe that if the Governor likes a statement alleging that someone committed an offense, the allegation must be true because the Governor said it was.  Both Facebook and the New York Times have recently discussed this. 

They admitted that misleading or untrue information is as easily transmitted by Social Media as is information that is true. They particularly called out the like and share functions for this ability to spread information quickly.

Even the courts have accepted likes and shares as evidence for intent or belief.  A local Utah politician was convicted on federal charges which were in part supported by the things he liked and shared on social media. The Government’s allegation, in this case, was that liking or sharing a post shows a person’s agreement with the statement being liked or shared, and can be proof of a conspiracy.

So, what we are asking for is legislation that protects the right of Utah Elected officials to express freely their opinions, but prohibits them from spreading unproven allegations as if they were facts. Often, this can be as simple as making a qualifying statement such as “in my opinion”, “I believe”, “if this is true”  or “as I understand it”.

Unfortunately, we have seen examples where unfounded, and unsubstantiated allegations have been spread widely by Elected Officials who liked and shared the allegations. The truth of these allegations will be decided in court, but, if the plaintiff prevails, the taxpayers of Utah may be on the hook for the cost of lawsuits and the damages awarded. We need to protect the taxpayers from this exposure in the future.

We need to protect the taxpayers from liability when elected officials like, share or make defamatory statements on social media.  We need to help elected officials state their opinions freely, while also avoiding liking, sharing, or making statements that are untrue or defamatory.

Here is the link to the State of Utah Social Media Policy:  https://dts.utah.gov/standard/state-of-utah-social-media-guidelines.  

This is a good place to start, but it needs to be expanded to more clearly distinguish between statements that are opinion and statements of fact.

Use of Social Media by State Agencies

State of Utah Legislators, its Governor, Lt. Governor, and State employees who participate in social media, shall understand and follow the latest version of  State of Utah Social Media Guidelines. These guidelines will evolve as new technologies and social networking tools emerge.

A state employee shall not use a State-Sponsored Social Media platform to discuss, comment on, or promote personal opinions, or beliefs, or to promote personal business ventures, or for any purpose not directly related to the state of Utah business.  A state employee who uses a State-Sponsored Social Media Platform shall be assigned by the state agency or official to use the platform, shall discuss only approved state policy, and shall not use public resources to discriminate against, harass, defame, intimidate, or otherwise threaten anyone who comments on or is the subject of a comment on a state-sponsored platform.

A state employee shall use a campaign social media platform only for campaign communications and discussion of the campaign and or political issues.  A state employee shall not use a campaign platform to discuss, debate or reveal any private information obtained from state sources, or to conduct any state business.

Use of Social Media By State Legislators, Governor, Lt. Governor, and State Employees for Personal Use

A State Legislator, Governor, Lt. Governor, and state employee may use social media to express a personal opinion and to discuss, and debate public policy.  Those elected officials   who participate in blogs, and social networking sites or platforms for personal use shall:

• State unequivocally that they are personally responsible for the post, like, share, or other communication.  That the post, like, share or other communication, is their own opinion and that the post, like, share or other communication does not represent the views of the State of Utah or its agencies and the post, share, like or other communication on the site or platform does not imply support for, or the truthfulness of any decision, policy or position, allegation or investigation conducted, sponsored by or represented by the State of Utah.
• If stating an opinion, shall formulate the statement such that it clearly is an opinion, and cannot be construed as a statement of fact.  This can be accomplished by the use of terms such as “in my opinion”.  “as I understand it”, “I think”, “I believe” or “if this is true,”
• If making a statement of fact, shall be prepared to share the evidence, information, or facts they rely on to make the statement of fact and to debate the veracity of the evidence, information, or facts cited.  Such debate should be encouraged. 
• A State Legislator, Governor, Lt. Governor, or State Employee may not imply that they speak for, or represent the State of Utah or any of its divisions or entities in any way when they post, like, share, or otherwise communicate on a personal social media site, page or platform.

A State Legislator, Governor, Lt. Governor, other elected or appointed official or State Employee who participates in blogs and social networking sites or platforms for personal purposes shall not:

• Use State-owned equipment including computers, phones, or other devices to post comments, likes, shares, or other communications on their personal social media sites or platforms without specific permission from their state agency or entity.
• Claim to represent the positions, policies, or decisions of the State of Utah or any state agency or entity on any personal platform or site; 
• Post the seal of the State of Utah, or trademark or logo of an agency on their personal social media pages, sites, etc.  
• Post protected or confidential information, including copyrighted information, confidential information received from agency customers, or agency issued documents without permission from the agency head; or
• Unlawfully discriminate against, harass, defame, intimidate, or otherwise threaten a citizen of Utah, a person doing business with the State of Utah, or any employee of the State of Utah.

The State of Utah may enforce this policy:

• A Utah State Agency may establish a policy to supplement this section.
• A State Legislator, Governor, Lt. Governor, or State Employee may be disciplined according to R477-11 for violations of this section or agency policy.
• State employees must avoid using personal social media during work hours without explicit permission from the agency they work for, and shall not disclose confidential information about their job duties or workplace. 
• A State Employee may be disciplined for talking negatively about their job or sharing negative or discriminatory opinions that reflect badly on the state on personal social media pages. 

State Employees Use of State-Sponsored Blogs, Social Media Sites, or Platforms:

• Some State Employees hold positions that include the responsibility of managing a social media account for the agency or department. 
• If this responsibility is part of a State Employees’ job description, they shall follow the guidelines listed in the State of Utah Social Media Guidelines

Responsibility for Posts

A State Legislator, Governor, Lt. Governor, other elected or appointed official or State Employee is ultimately responsible for anything that they post, like, share, or communicate in any other way on Social Media.  

• The state will not indemnify a State Legislator, Governor, Lt. Governor, other elected or appointed official or State Employee against any suit or controversy resulting from a statement made, a subject or post liked or shared, or anything else distributed or communicated on social media, whether on a state, campaign, or personal site or platform that is abusive, harassing, defamatory, misleading or untrue information, and if they knew or should have known it was abusive, harassing, defamatory, misleading or untrue. 
• A court may, in judging a case brought under this section, determine whether it was reasonable for an elected or appointed official to rely on the evidence, facts, or information supplied by others when making statements that are determined by the court to be defamatory, misleading or untrue. Courts should, in determining reasonableness, review sources, and whether the information, evidence, or facts were obtained from multiple sources or were the result of an official investigation or proceeding.
• Upon determining it was reasonable for an elected or appointed official to rely on the evidence they received from others, the court may use this determination as a mitigating factor when determining damages against the official

Any victim of such a post may bring suit against a State Legislator, Governor, Lt. Governor, any other elected or appointed official, or state employee for damages in District Court in Utah.  If a District Court finds that the State Legislator, Governor, Lt. Governor, other elected or appointed official or state employee knew or should have known, that the post, like, share or other communication was abusive, harassing, defamatory, misleading, or untrue, they shall award to the victim reasonable attorney’s fees in addition to any damages awarded.

Engagement

When a State Employee is assigned to manage a Social Media Account for a state agency or entity or is asked to post on a state site or answer questions received on a State site, the State Employee shall:

• Ensure that their agency officially sanctions their participation and representation on social media sites.
• Comment only in their area of expertise.
  •  provide unique, individual perspectives on what is going on at the state and in other larger contexts.
  • Post meaningful, respectful comments. 
  • A State Employee shall  NOT post spam and/or remarks that are off-topic or offensive, abusive, harassing, defamatory, misleading, or untrue.
• Protect and not disclose proprietary information, content, and confidentiality.
• When disagreeing with others’ opinions, comments shall be appropriate and polite, and shall not reflect poorly on the state or the agency.
• Participate in ways that are consistent with the provisions of Utah Administrative Rule R477-9. Employee Conduct, and that comply with the posted Privacy Policy of the State.
• Know and follow the State’s Acceptable Use Policy, Information Protection 5000-1700, and Confidential Information 5000-1701 policies.
• Use social media collaboration tools explicitly authorized in the state’s Internet-based Collaboration Tools Standard.
• Follow applicable agency social media policies.
• Participation in social computing on behalf of the state is not a right. The opportunity to represent the state on Social media may be removed from any employee at any time.  
• A state employee shall treat the responsibility to represent the state or its agencies or entities seriously and with respect. They shall follow the terms and conditions for any third-party sites.

Moderating Comments

In some social media formats such as Facebook, Blogs, Twitter responses, etc., a state employee assigned to manage a state agency or entity's social media sites may encounter comments which cause the employee concern as a moderator or responsible party. 

• If user content is positive or negative and in context to the conversation, then the content shall be allowed to remain, regardless of whether it is favorable or unfavorable to the state. 
• If the content is ugly, offensive, denigrating, defamatory, slanderous, and completely out of context, then the content shall be rejected and removed.
• The following types of content are considered inappropriate for posting on the State’s social media platforms and website(s): commercial; self-promotional; campaign-related; prurient; abusive; defamatory, discriminatory speech, including but not limited to, hate speech based on race, gender, sex, national origin, age, sexual orientation, religion or disability; in certain contexts, personal contact information.
• The state of Utah shall have the right to remove and/or block posts, content, and/or comments that are violent, obscene, profane, defamatory, hateful, racist, sexual, suggestive, or that encourage illegal activity from the State’s social media platforms and website(s