The Dormant Commerce Clause and Geolocation: Introduction
[Jack Goldsmith and I will have this article out in the Texas Law Review early next year, and I’m serializing it here. There is still plenty of time for editing, so we’d love to hear any recommendations you folks might have; in the meantime, you can read the entire PDF of the latest draft (though with some formatting glitches stemming from the editing process) here.]
Many state laws apply to internet communications. Indeed, we take many of them for granted. If you publish an online magazine or a blog that comments on people from all fifty states, you might be subjected to the libel law of each state. If you sell online images of famous people (or, to be au courant, NFTs), you might be subjected to each state’s right of publicity law. Likewise as to the torts of disclosure of private facts, false light, and more. To be sure, the First Amendment uniformly protects much of this speech. But if you go beyond the First Amendment’s protections, you could in principle be subject to many different state laws.
When, if ever, must courts reject such laws as unduly burdening interstate commerce in violation of the Dormant Commerce Clause? Courts in the 1990s and early 2000s often invalidated some internet-related state statutes under this Clause—especially ones that restricted “harmful to minors” material. But more recently, and increasingly, courts have upheld state laws regulating various internet transactions.
The issue has been most notably implicated by recent state statutes that limit platforms’ ability to block user posts based on the posts’ viewpoint. The Florida and Texas social media platform viewpoint-neutrality statutes were indeed challenged under the Dormant Commerce Clause—and though the courts didn’t reach the challenges, because they struck down the statutes on other grounds, the question will doubtless recur as states increasingly seek to regulate social media platforms. The Court’s decision returning abortion regulation to the states may also lead to statutes limiting abortion advertising that is targeted to states where abortion is illegal, and to Dormant Commerce Clause (as well as First Amendment) challenges to those statutes.
The Dormant Commerce Clause argument against state regulation of internet services is basically this: By imposing liability on internet speech sent to one state, a state law would potentially affect speech sent from and received in other states, and would in this respect be improperly extraterritorial. Requiring platforms or speakers to consider the laws of all fifty states can gravely burden such entities, and therefore interstate commerce. And in some situations, the laws may even conflict with each other—for instance, if state A limits sending pornogra
Article from Reason.com