Jack Goldsmith & Eugene Volokh, State Regulation of Online Behavior: The Dormant Commerce Clause and Geolocation, Texas L. Rev. (forthcoming 2023).
Abstract: When does the Dormant Commerce Clause preclude states from regulation 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 feasability 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. As a result, there is more constitutional room for state regulation of Internet services, including social media platforms, than often believed.