The Dormant Commerce Clause, Web Platforms, and Content material Discrimination Bans – #historical past #conspiracy
Thus far, we targeted on platforms discriminating, in violation of state legislation, in opposition to customers primarily based on their standing. However antidiscrimination legal guidelines may attain discrimination primarily based on the content material of customers’ speech.
Think about HitchedIn, a hypothetical site that lets customers put up pages for his or her weddings, full with a spot for company to RSVP, a present registry, video streaming for individuals who cannot be bodily current on the occasion, and an area for mates to have conversations in regards to the marriage ceremony earlier than or after (and even throughout). However HitchedIn decides to not enable (a) pages for same-sex weddings, and (b) pages or feedback containing pagan spiritual messages.
Assume California courts conclude that:
- The California Unruh Civil Rights Act—which bans discrimination primarily based on sexual orientation “in all enterprise institutions of each sort by any means”[1]—covers web sites, each with respect to customers who’re posting on the web sites and customers who’re studying them.
- Such discrimination primarily based on the same-sex-wedding-related content material or pagan content material constitutes discrimination primarily based on sexual orientation or faith—very similar to discrimination in opposition to same-sex weddings has been held to be sexual orientation discrimination when performed by bakers, florists, and different marriage ceremony service suppliers.[2]
- This nondiscrimination rule would not violate the First Modification,[3] and is not preempted by § 230.[4]
Right here too, the Dormant Commerce Clause should not preempt a studying of California legislation that will require platforms to not discriminate as to posts by customers who’re posting from California, when their posts are learn by individuals in California (once more, Choice 1), as long as the platforms can use geolocation expertise to find out who’s in California. A resort in Los Angeles cannot refuse to host same-sex weddings or pagan weddings, or so we will assume beneath the hypothesized interpretation of the Unruh Act. Likewise, a social media firm—whether or not the California-based Fb or Twitter, or the Tennessee-based Parler—working a web page that is utilized by Californians to speak to Californians could not refuse to let Californians use that web page to convey related spiritual views. And the identical harder and unsure evaluation as above would apply to an Choice 2, beneath which California legislation would shield Californians from such discrimination even after they’re corresponding with out-of-staters.
This tees issues up effectively to probably the most controversial merchandise: statutes banning platforms from discriminating primarily based on submit content material or viewpoint. Extra on that within the subsequent submit.
[1]. Cal. Civ. Code § 51(b). The Act could be very broad, masking, for example, discrimination primarily based on “medical situation, genetic data, marital standing, sexual orientation, citizenship, major language, or immigration standing” in addition to the extra acquainted classes. Id.
[2]. See Elane Images, LLC v. Willock, 309 P.3d 53, 61–63 (N.M. 2013).
[3]. See Volokh, supra word 137.
[4]. See Candeub & Volokh, supra word 138.
