[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.[1]) 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.[2]
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,"[3] so courts will have to consider the local benefits. But those benefits are quite important.
