[Jack Goldsmith and I will have this article out 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.]
Many state laws apply to internet communications. Indeed, we take many of them for granted. If you publish an online magazine or a blog that comments on people from all fifty states, you might be subjected to the libel law of each state.[1] If you sell online images of famous people (or, to be au courant, NFTs), you might be subjected to each state's right of publicity law.[2] Likewise as to the torts of disclosure of private facts, false light, and more. To be sure, the First Amendment uniformly protects much of this speech. But if you go beyond the First Amendment's protections, you could in principle be subject to many different state laws.
When, if ever, must courts reject such laws as unduly burdening interstate commerce in violation of the Dormant Commerce Clause? Courts in the 1990s and early 2000s often invalidated some internet-related state statutes under this Clause—especially ones that restricted "harmful to minors" material.[3] But more recently, and increasingly, courts have upheld state laws regulating various internet transactions.[4]
