Consensus on social media guardrails so far elusive

Pennsylvania lawmakers have recently debated bills that would mandate disclosure of artificial intelligence-generated images, ban TikTok from state-owned phones, and require monitoring of minors' social media.

Consensus continues to elude them, and related debates — particularly around social media regulations — demonstrate the balancing act and free speech sensitivities they would need to navigate in doing so. 

Also this week, limited information is publicly available about water testing done in Pennsylvania as a result of a plea deal over Mariner East II construction pollution.

Finally, the Forward Party wants to get attorney general and treasurer candidates on the general election ballot this year. To do so, they'll need to overcome hurdles including collecting thousands of signatures and surviving probable court challenges. 

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How a U.S. Supreme Court decision could impact local government transparency in Pa.

A city manager posts on Facebook. Is he speaking with authority as a government employee or exercising his right to free speech in expressing his opinion? In a March ruling, the U.S. Supreme Court created a two-part test to answer that question.

The line between private conduct and state action is dependent “on substance, not labels,” the high court said. Public officials’ actions, including on social media, must meet two conditions to be considered official conduct. 

Justice Amy Coney Barrett delivered the court’s unanimous decision. She wrote that a public official “engages in state action” only when they possess actual power to speak about a particular issue and seem inclined to or intend to exercise that power. 

“A post that expressly invokes state authority to make an announcement not available elsewhere is official, while a post that merely repeats or shares otherwise available information is more likely personal,” Barrett wrote.

This determination sets a precedent that would be binding on some decisions by state and federal courts across the country, municipal lawyer Josh Bonn told Spotlight PA.

Bonn deals with open records matters in Pennsylvania and said this interpretation could affect government transparency in the commonwealth. 

For example, Pennsylvania Commonwealth Court established a three-factor test last year to judge when social media posts on public officials’ personal accounts should be accessible under the Right-to-Know Law. 

That test directs government agencies, the Office of Open Records, and the courts — which have the power to decide what records are accessible to the public — to examine the social media account in question, including its private or public status; its appearance or purpose; and any actual or apparent duty for public officials to operate it.

The Commonwealth Court decision was appealed to the state Supreme Court, which agreed to take the case on in December. 

In light of the March decision, Pennsylvania’s highest court will have to weigh whether the test previously developed by Commonwealth Court conflicts with the U.S. Supreme Court’s two-part test and whether the latter should apply in the context of public records in Pennsylvania, Bonn said.

The high court’s two-pronged test was created for civil rights matters, such as determining whether someone’s First Amendment rights were violated when they are blocked on social platforms, which may not be comparable with public records matters in Pennsylvania, he added.

The U.S. Supreme Court decision “is not the last word,” Bonn told Spotlight PA, because it dealt with one particular set of facts. Considerations for forthcoming cases appearing before state and federal courts would further scrutinize the issue of public officials’ use of social media. 

In his work as a solicitor for local governments, Bonn advises officials to maintain separate social media accounts for public-facing communications and their private lives. —Min Xian, local accountability reporter

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