Prof. Jack Goldsmith (Harvard) and I will have this article out in the Texas Law Review early next year, and I’ll be serializing it here in the next couple of weeks, starting Tuesday. 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. Meantime, the Abstract:
When does the Dormant Commerce Clause preclude states from regulating internet activity—whether through state libel law or invasion of privacy law; through state laws requiring web sites to accommodate disabled users (for instance, by providing closed captioning); through state bans on discriminating based on sexual orientation, religion, or criminal record; or through state laws that ban social media platforms from discriminating based on the viewpoint of users’ speech?
This essay argues that the constitutionality of such state regulation should generally turn on the feasibility of geolocation—the extent to which web sites or other internet services can determine, reliably and inexpensively, which states users are coming from, so that the sites can then apply the proper state law to each user (or, if need be, choose not to allow access to users from certain states). In recent years, geolocation has become feasible, and is routinely used by major web sites for ordinary business purposes. There is therefore more constitutional room for state regulation of internet services, including social media platforms, than often believed.
Note that the article is exclusively about the Dormant Commerce Clause questions, not the separate defenses internet services might have under either the First Amendment or 47 U.S.C. § 230 (for more on that, see this article of mine and this article by Adam Candeub and me).