[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.]
Considering how various state laws treat nationwide publishers, especially internet publishers, helps show the problems with courts' occasional condemnation of laws for which the "practical effect . . . is to control conduct beyond the boundaries of the State.". This focus shows how the Dormant Commerce Clause has been applied to internet communications, introduces the importance of geographic filtering in this context, and thus sets up the analysis of the more recent social media platform issues addressed in Part V. To make things concrete, imagine a major online publisher—say, Fox News—and the state laws that it might be subject to and therefore must consider. We'll focus on the publisher's own materials, thus avoiding any possible problem under Section 230 of the Communications Decency Act.[1]
For starters, like all publishers, Fox News must worry about libel law. Some basic principles of libel law are of course dictated uniformly by the First Amendment, but beyond that the rules vary. A few states, for instance—including New York, where Fox is headquartered—require a showing of "actual malice" for all statements of public concern, including statements about private figures.[2] Most other states allow recovery of proven compensatory damages for libel based on a showing of mere negligence.[3]
