February 5, 2022
Dear constituent and voter,
Freedom of speech is an absolute for me. It is one of our first freedoms, enshrined in the First Amendment to the US Constitution. I firmly believe in robust engagement, gathering facts, and articulating one's position. I believe informed citizens questioning our elected officials and those in authority is essential to good governance, accountability, and choosing the best candidate to represent you and your community.
It is with this in mind that I am sponsoring a bill titled "Freedom of Speech and Honest Discourse on Social Media", see details below.
In our world of technology and almost immediate communication, I embrace the positive aspects and opportunities social media provides regarding free speech and political engagement. However, we also see the dangers of social media and the possible distortion of free speech, as well as censorship by big tech companies, and the rapid spread of both ideas and misinformation on these platforms.
Because of the complex nature of this issue, which includes constitutional rights, potential legal recourse, and more, I am requesting your review, your insight, and your thoughtful analysis. Please see below the actual notes and guidelines that I provided to the drafting attorney at Legislative Research.
If freedom of speech is an important issue for you, I respectfully request that you take time to review the outline below. I recognize there is a lot of material to read and digest. I also recognize this issue might need further review during the summer interim session 2022. Nevertheless, I believe your citizen input is now essential and I would appreciate any feedback you can provide.
Please reply with your thoughts and constructive suggestions.
Thank you for your willingness to engage and to participate in this legislation that has been brought to me by constituents and voters like you.
You will be among those notified first as my Freedom of Speech and Honest Discourse on Social Media and other bills become available. In the meantime, please follow me on twitter.com/phil_lyman and here on the website to stay informed. I look forward to reading your comments, questions, and suggestions.
Representative Phil Lym
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:
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:
The State of Utah may enforce this policy:
State Employees Use of State-Sponsored Blogs, Social Media Sites, or Platforms:
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.
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.
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:
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.
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