The Dormant Commerce Clause, Internet Platforms, and Status Discrimination Bans
[Jack Goldsmith and I will have an article out about the Dormant Commerce Clause, geolocation, and state regulations of Internet transactions 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.]
Let’s now consider how these principles might apply to state regulations of social media platforms, and in particular to statutes (whether framed as public accommodations statutes or quasi-common-carrier statutes) that ban discrimination based on various attributes of a user or of the user’s speech. We’ll begin with two relatively simple and narrow hypotheticals, and then turn in a later post to the more controversial and ambitious statutes aimed at forbidding certain kinds of political discrimination, such as the ones recently enacted in Florida and Texas.
Antidiscrimination Statutes: Status
Federal public accommodations law likely doesn’t cover social media platforms, because it’s limited to only a few kinds of establishments. It also only bans discrimination based on race, religion, and national origin. But many states ban public accommodation discrimination in many establishments, based on many criteria.
Of course, today’s major social media platforms likely wouldn’t expressly exclude members based on, say, race or sex or sexual orientation. But consider a peculiar form of antidiscrimination law: bans on discrimination in places of public accommodation based on arrest or conviction history. Ann Arbor categorically bans such discrimination based on arrest record. Madison, Urbana, and Champaign do the same as to arrest record or conviction record. Connecticut bans discrimination based on expunged criminal records. New Jersey bans discrimination based on criminal history involving possession, distribution, or manufacturing of marijuana and hashish. Illinois, Hawaii, New York, and Wisconsin also ban such discrimination in employment, so it’s easy to imagine one of those states extending the ban to public accommodations.
Indeed, say Wisconsin is, rightly or wrongly, persuaded to do that (especially given Madison’s step in that direction). But say some social network—call it SafeBook—decides to ban people with a history of criminal offenses from portions of its site that children can visit. (Maybe sex offenses, but maybe also drug offenses; many parents might not want their children to fall in with the wrong crowd online and be exposed to bad influences.)
And say that Wisconsin courts conclude that the Wisconsin law applies to social media networks. This isn’t implausible: Some courts have already held that bans on disability discrimination in places of public accommodation apply to websites. The Wisconsin law also provides that the term “public place[s] of accommodation or amusement” “shall be interpreted broadly to include, but not be limited to, places of business or recreation,” “and any place where . . . amusement, goods, or services are available either free or for a consideration.” Finally, say that courts conclude that this nondiscrimination rule doesn’t violate the social media networks’ First Amendment rights, and isn’t preempted by § 230.
The Dormant Commerce Clause shouldn’t invalidate this law, at least if certain assumptions about geolocation (more on them shortly) are satisfied. This is especially clear if the law only protects the right of users in Wisconsin to interact with other users in Wisconsin (let’s call this Option 1). Just as a theme park in Wisconsin can’t exclude visitors with a criminal record, so SafeBook can’t keep a Wisconsinite from logging on and having online conversations with other Wisconsinites who have criminal records.
To be sure, Wisconsin’s law would have extraterritorial effects: If SafeBook is headquartered in, for instance, Kansas, presumably SafeBook will have to do many things in Kansas to comply. But of course any corporation that deals with customers all over the country through bricks-and-mortar stores would have to comply with the laws of those places where it operates. Likewise, any corporation that mails material to customers, or deals with them through phone calls, would have to comply with the laws of those places (for instance, in deciding what it must do to legally record phone calls with customers).
This analysis assumes what is increasingly commonplace: that SafeBook has access to geographical identification tools at a reasonable cost that can determine whether a user and the users with whom he is corresponding are in Wisconsin. So long as Wisconsin only requires SafeBook to use reasonable best efforts with geolocation tools—rather than, say, imposing strict liability for any criminal history discrimination against users who happen to be in Wisconsin, even if they appear to be coming from Iowa—then SafeBook can still maintain its criminal-offender-free experience for users in other states. It could just hide any Wisconsin criminal-offender users so users in other states can’t correspond with them, but show them to their fellow Wisconsinites.
This sort of geography-based variation in experience is similar to what the Ninth Circuit ruled that CNN could provide to accommodate disabled users in California. Safebook would have to go beyond CNN in at least one respect: It would have to take note of the place from which the item was posted, and not just, as in CNN’s case, the place from which the item was accessed. But that move might be technically easy, to the extent that Safebook can geolocate the poster when the post is put up, and then store that location information together with the other fields in the post, such as the post date, time, author, and text. Armed with that information, the SafeBook software can make sure that Wisconsinites will see posts from other Wisconsinites, even if it wants to continue to
Article from Reason.com