The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

dormant Commerce Clause

The Dormant Commerce Clause, Internet Platforms, and Content Discrimination Bans


[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.]

So far, we focused on platforms discriminating, in violation of state law, against users based on their status. But antidiscrimination laws can also reach discrimination based on the content of users' speech.

Imagine HitchedIn, a hypothetical web site that lets users put up pages for their weddings, complete with a place for guests to RSVP, a gift registry, video streaming for people who can't be physically present at the event, and a space for friends to have conversations about the wedding before or after (or even during). But Hitched­In decides not to allow (a) pages for same-sex weddings, and (b) pages or comments containing pagan religious messages.

Assume California courts conclude that:

  1. The California Unruh Civil Rights Act—which bans discrimination based on sexual orientation "in all business establishments of every kind whatsoever"[1]—covers websites, both with respect to users who are posting on the websites and users who are reading them.
  2. Such discrimination based on the same-sex-wedding-related content or pagan content constitutes discrimination based on sexual orientation or religion—much like discrimination against same-sex weddings has been held to be sexual orientation discrimination when done by bakers, florists, and other wedding service providers.[2]
  3. This nondiscrimination rule doesn't violate the First Amendment,[3] and isn't preempted by § 230.[4]

Here too, the Dormant Commerce Clause shouldn't preempt a reading of California law that would require platforms not to discriminate as to posts by users who are posting from California, when their posts are read by people in California (again, Option 1), so long as the platforms can use geolocation technology to determine who is in California. A hotel in Los Angeles can't refuse to host same-sex weddings or pagan weddings, or so we can assume under the hypothesized interpretation of the Unruh Act. Likewise, a social media company—whether the California-based Facebook or Twitter, or the Tennessee-based Parler—operating a page that's used by Californians to talk to Californians couldn't refuse to let Californians use that page to convey similar religious views. And the same more difficult and uncertain analysis as above would apply to an Option 2, under which California law would protect Californians from such discrimination even when they're corresponding with out-of-staters.

This tees things up well to the most controversial item: statutes banning platforms from discriminating based on post content or viewpoint. More on that in the next post.

[1]. Cal. Civ. Code § 51(b). The Act is very broad, covering, for instance, discrimination based on "medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status" as well as the more familiar categories. Id.

[2]. See Elane Photography, LLC v. Willock, 309 P.3d 53, 61–63 (N.M. 2013).

[3]. See Volokh, supra note 137.‌

[4]. See Candeub & Volokh, supra note 138.‌