Dormant commerce clause constraints on social media regulation

Ayesha Rasheed

Since 2021, thirty-four U.S state legislatures have introduced bills regarding technology companies’ moderation of users’ content. Of these, three have successfully become law, most notably in Texas and Florida, which, in a national first, have banned social media companies from censoring users’ opinions or de-platforming political candidates. Critically, neither law depends on a federal regulator, instead advancing a vision of state-by-state internet speech regulation that, at times, allows the state to assert extraterritorial authority while proposing no clear mechanism for delineating in-state and out-of-state users or interactions.

Social media laws like the ones in Texas and Florida directly implicate Dormant Commerce Claus concerns, which U.S. internet law has long avoided. Though later blocked by federal courts on other grounds, these social media laws likely violated the Dormant Commerce Clause, which requires that no state or local law places an undue burden on interstate commerce. While no court has yet reached the question, such arguments were raised challenging the Florida and Texas laws and will no doubt arise again as similar laws coming down the legislative pipe are contested in future.

This Essay argues that no commitment to federalism in the face of changing technology justifies giving one state the authority to substantially interfere with how out-of-state residents talk to each other. While perhaps well-intentioned, these laws will, at best, further balkanize interstate online discourse by jeopardizing innumerable businesses and individuals communicating across state lines, and at worst, allow individual states to unconstitutionally step beyond the reach of federal law. Though some scholars have argued that Dormant Commerce Clause challenges may be overcome through use of geolocation tracking, such solutions raise a host of privacy and cybersecurity concerns that would, perversely, only contribute further to degradation of a democratic, digital public sphere.