The Dormant Commerce Clause, Social Media Platforms, and Restrictions on Political Discrimination
[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.]
The same basic approach we laid out in the last several days, we think, should apply to bans on political discrimination. (Some California cases suggest that California law already bans such discrimination, and various cities, counties, and territories have explicit rules along those lines.) If, say, Iowa law bans social media platforms from blocking Iowan-to-Iowan speech based on its viewpoint, whether religious, moral, or political, Iowa courts could, consistent with the Dormant Commerce Clause, apply that law to HitchedIn and, for that matter, to Facebook and Twitter—again, so long as those platforms could geolocate the communicating parties as being in Iowa. Likewise for common carrier statutes, which would ban social media platforms from blocking such communication more generally (perhaps with a few viewpoint-neutral exceptions, such as for spam or sexually themed material). This question was raised in the challenges to the Florida and Texas laws that banned social media platforms from discriminating based on political viewpoint, but those courts didn’t reach it, because they struck those laws down on other grounds.
To be sure, one element of the Pike balancing test is to ask whether “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits,” so courts will have to consider the local benefits. But those benefits are quite important.
In our HitchedIn and SafeBook hypos, the local benefits were the benefits of protecting local residents from discrimination based on sexual orientation, religion, and criminal history. And in the political discrimination ban, they are the benefits that the Court viewed as important in Turner, albeit as to the First Amendment—”assuring that the public has access to a multiplicity of information sources,” “a governmental purpose of the highest order, for it promotes values central to the First Amendment.” “It has long been a basic tenet of national communications policy that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”
None of this tells us, of course, that applying such public accommodation laws or common carrier laws to social media platforms is a good idea. The only point is that the Dormant Commerce Clause doesn’t categorically preclude these sorts of experiments.
Because this topic is so much in the news—with Florida and Texas enacting such statutes, and other states considering them—let’s lay this out in some more detail, and in particular cover four possible categories of hypothetical Iowa statutes, and not just Options 1 and 2.
1. Forbidding viewpoint discrimination by platforms when Iowans read material posted by Iowans. This is the analog of Option 1 for the other statutes discussed in previous sections. It has the narrowest extraterritorial effect, because it doesn’t materially affect the service the platform offers outside the state.
Indeed, such a nondiscrimination law would be similar to a normal public accommodation law that bans brick-and-mortar public accommodations—such as bars or stadiums—in a particular state or city from excluding people based on their “political ideology,” including political speech. Such a law may require multistate chains to develop different rules for different states in which they operate. It may lead to some interstate travelers being upset, for instance if they are used to the chain’s restaurants forbidding (say) patrons from wearing Confederate-flag garb but have to endure seeing it in a jurisdiction that bans ideological discrimination. And it may have various other extraterritorial effects.
Still, it’s clear that a state can indeed impose such rules on businesses within it. Likewise, a state can impose similar rules with regard to communications that are sent and received from that state.
2. Forbidding viewpoint discrimination by platforms when anyone reads material posted by Iowans. This is what we’ve also labeled Option 2 in the examples above, and it’s similar to t
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