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Handcuffing companies in the name of ‘free speech’ is unconstitutional

SB228, which passed the Utah Legislature, would infringe upon the rights of private businesses and religious organizations.

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People sit in the gallery of the Senate during the Utah Legislature’s 2021 general session at the Capitol in Salt Lake City on Wednesday, March 3, 2021. SB228, Electronic Free Speech Amendments, passed the legislature last week.

Jeffrey D. Allred, Deseret News

The internet is a powerful tool that is used in every facet of daily life, especially as our lives have been limited during a global pandemic. Our children use the internet to attend classes when in-person learning is not an option; our businesses and consumers turned to the internet to buy and sell goods as storefronts closed and patronage was limited to prevent the spread of the highly contagious virus; we attended church services online; and some of our homes became offices with the internet allowing us to continue working remotely through the pandemic.

The reach of the internet is infinite, and we have stayed connected to friends and family during the public health crisis through online video forums and social media platforms.

But, for all the reasons the internet has made the past year more bearable, it has also seen increased scrutiny over the spread of misinformation, conspiracy theories and other harmful content.

Today, we are dealing with a balancing act over how much the internet should be regulated by government, if it all, and the responsibility of platform operators to self-regulate and ensure harmful, even dangerous content is not permitted to be perpetuated on social media.

Unfortunately, when we start talking about putting the government in charge of regulating private companies’ editorial discretion to remove misinformation and promote safety, we’re headed toward a dangerous precedent that is in direct violation of the First Amendment, which protects free speech as well as private companies’ right to moderate content on their platforms.

While the goals of legislation like the Electronic Free Speech Amendments (SB228) are commendable — we all enjoy the luxury of protection of our speech rights under our Constitution and do not want to see those fundamental rights infringed upon — the reality is that giving the government the enforcement power to review and moderate private companies’ speech rights violates the very protections provided for under the First Amendment. 

In 2021, as our state’s economy is still struggling, the last thing we need to do is place stifling government regulation on small businesses and social media startups who would be required to pour significant money into complying with unconstitutional government regulations.

SB228 would abridge religious freedoms and a religious organization’s ability to moderate its own content.

This legislation would not just affect Big Tech — it extends to all tech startups, and even to our beloved religious institutions. In fact, to put the myriad of issues with this proposed legislation into perspective, The Church of Jesus Christ of Latter-day Saints, which has seen enormous amounts of online hate and harmful content directed toward its online channels, would not be able to remove content from their comments section on its website under this new law. This includes comments by satanic worshippers and others who continue to troll the church. Instead, SB228 would abridge religious freedoms and a religious organization’s ability to moderate its own content.

We want an internet that is free, open and accessible. That’s one of the bedrocks of our American values — and an enviable position for many around the world who are heavily regulated by authoritarian regimes that use the internet to assert power over its own citizens and silence critics.

In the case of SB228, the pursuit of equitable policy decisions will result in inequitable solutions for all Utahns. Utah Gov. Spencer Cox should protect Utah’s small business and growing tech start up community and veto this unconstitutional measure. We must stand up to big government and protect Americans’ fundamental rights by saying “no” to this unconstitutional measure.

Suzanne Gleed is the president of SGW Investments.

Correction: A previous version criticized an independent review board that would have been established by SB228. That provision was removed before final passage of the bill.