Jack Goldsmith's and my article with this title is now out in the Texas Law Review, as is David Post's response (many thanks for writing that, David!). Many of our readers are already familiar with it from when I serialized it here several months ago; but here's the Introduction:
Many state laws apply to internet communications. Indeed, we take many such laws 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 laws of each state. If you sell online images of famous people (or, to be au courant, non-fungible tokens), 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 used the Clause to invalidate some internet-related state statutes—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 Supreme Court's decision returning abortion regulation to the states may also lead to statutes limiting abortion advertising that is targeted at states where abortion is illegal, and to Dormant Commerce Clause (as well as First Amendment) challenges to those statutes.
