The Dormant Commerce Clause, Internet Platforms, and Content 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.]
So far, we focused on platforms discriminating, in violation of state law, against users based on their status. But antidiscrimination laws can also reach discrimination based on the content of users’ speech.
Imagine HitchedIn, a hypothetical web site that lets users put up pages for their weddings, complete with a place for guests to RSVP, a gift registry, video streaming for people who can’t be physically present at the event, and a space for friends to have conversations about the wedding before or after (or even during). But HitchedIn decides not to allow (a) pages for same-sex weddings, and (b) pages or comments containing pagan religious messages.
Assume California courts conclude that:
- The California Unruh Civil Rights Act—which bans discrimination based on sexual orientation “in all business establishments of every kind whatsoever”[1
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