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  • Charles Bachmann

The Dormant Commerce Clause and the Dubious Constitutionality of State Regulation of Social Media

There is growing recognition in the medical community that social media applications are harmful to mental health, particularly for young people.[1] Researchers have observed an inverse relationship between social media use and various measures of psychological well-being.[2]  The testimony of former Meta insiders like Frances Haugen and Arturo Béjar has brought the issue into the political mainstream, highlighting the fact that social media operators are aware of the harmful effects of their products.[3]  Although the exact mechanisms are still under study, the prevailing theories suggest that the very structure of social media applications promotes unhealthy, and potentially addictive, habits among users.[4]

A clear majority of American adults are concerned with the effects of social media on mental health and there is significant support for some form of regulation.[5]  Although several proposals for reform are pending in Congress, their future is uncertain.[6]  The States have entered the regulatory vacuum, with Arkansas, Utah, Texas, California, and Louisiana having passed their own laws and several other states actively considering enacting similar legislation.[7]  Social media companies are strenuously resisting efforts to regulate their interactions with their most valuable users.[8]  There is also little hope that social media companies will effectively self-regulate in the absence of new laws. Leaving aside concerns regarding civil liberties, State regulations face a significant hurdle in the Dormant Commerce Clause.

The Commerce Clause grants Congress the power to “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[9]  The Supreme Court has held that this implies a restriction on State power such that their “laws [cannot] discriminate purposefully against out-of-state economic interests.”[10]  Whenever a State seeks to regulate any interstate commercial actor, even if non-discriminatorily, the law must not put excessive burdens on the interstate actor relative to in-state benefits—a “test that is nearly always fatal in fact.”[11]  The exact contours of the doctrine are obscure, however, leading to uncertainty over the limits of State power to regulate commerce.[12]

This limitation on state power has already been implicated in State regulation of social media companies.  In 2023, Montana entirely banned TikTok from operating within its territorial limits, albeit not for reasons of public health.[13] TikTok sued immediately, seeking an injunction to halt enforcement of the law.[14]  The Montana district court granted the injunction, in part on Dormant Commerce Clause grounds.[15]  Predictably, TikTok argued that the injunction would cause it significant economic harm, and the court accepted that this harm likely outweighed any potential local benefits in enforcement of the law.[16]  Both Arkansas’s and California’s social media regulations, which are focused much more on curbing design features thought to be harmful to mental health,[17] have been preliminarily enjoined.  Although the court did not reach it, a Dormant Commerce Clause argument was made in the California litigation.[18] 

Because there is so much uncertainty over whether the states may permissibly regulate social media operators, to say nothing of the logistical headache of complying with potentially conflicting state regulatory regimes and the undesirability of siloing social media users from different states, it is imperative that Congress act expeditiously to put some guardrails on social media.

 

 


[1] See, e.g., U.S. Sᴜʀɢᴇᴏɴ Gᴇɴᴇʀᴀʟ, Pʀᴏᴛᴇᴄᴛɪɴɢ Yᴏᴜᴛʜ Mᴇɴᴛᴀʟ Hᴇᴀʟᴛʜ: Tʜᴇ U.S. Sᴜʀɢᴇᴏɴ Gᴇɴᴇʀᴀʟ’s Aᴅᴠɪsᴏʀʏ, 8 (2021), https://www.hhs.gov/sites/default/files/surgeon-general-youth-mental-health-advisory.pdf.

[2] Jean Twenge, Gabrielle N. Martin & W. Keith Campbell, Decreases in Psychological Well-Being Among American Adolescents After 2012 and Links to Screen Time During the Rise of Smartphone Technology, 18 Eᴍᴏᴛɪᴏɴ 765, 774 (2018) (Finding that “psychological wellbeing was lowest in years when adolescents spent more time online, on social media…”); Cara L. Booker, Yvonne J. Kelly & Amanda Sacker, Gender Differences in the Associations Between Age Trends of Social Media Interaction and Well-Being Among 10-15 Year Olds in the UK, BMC Pᴜʙ. Hᴇᴀʟᴛʜ, 2018, at 9 (Finding that “greater interaction on social media at age 10 was associated with worsening socio-emotional difficulties with age among females.”); Holly B Shakya & Nicholas A Christakis, Association of Facebook Use with Compromised Well-Being: A Longitudinal Study, 185 Aᴍ. J. Eᴘɪᴅᴇᴍɪᴏʟᴏɢʏ 203, 208-10 (2017) (Finding that not only was present Facebook use associated with reduced well-being, but that it was associated with likelihood of diminished future wellbeing.).

[3] See, e.g., Ruth Reader, Evan Peng, Carmen Paun, Daniel Payne & Erin Schumaker, A Meta Whistleblower Speaks Up, Pᴏʟɪᴛɪᴄᴏ (Nov. 21, 2023, 2:00 PM), https://www.politico.com/newsletters/future-pulse/2023/11/21/a-meta-whistleblower-speaks-up-00128125.

[4] See Mark D. Griffiths, Adolescent Social Networking: How Do Social Media Operators Facilitate Habitual Use?, 36 Eᴅᴜᴄ. & Hᴇᴀʟᴛʜ J. 66, 67-68 (2018) (Cataloging design features that promote compulsive use of social media, such as the allure of social affirmation measured in “likes” and audio and haptic notifications that disrupt activities and encourage users to return to social media applications); Rasan Burhan & Jalal Moradzadeh, Neurotransmitter Dopamine (DA) and its Role in the Development of Social Media Addiction, J. Nᴇᴜʀᴏʟᴏɢʏ & Nᴇᴜʀᴏᴘʜʏsɪᴏʟᴏɢʏ, Nov. 27, 2020, at 1-2 (Suggesting that social media use may alter dopamine feedback signals in the brain in away observed in gambling and other addictive behaviors); Anindita Chakraborti, Facebook Addiction: An Emerging Problem, 11 Aᴍ. J. Psʏᴄʜɪᴀᴛʀʏ Rᴇsɪᴅᴇɴᴛ’s J. 7, 8 (2017) (“Similar to other addictions, individuals with Facebook addiction can present with symptoms of tolerance, withdrawal, salience, conflict, and relapse”).

[5] Mᴏʀɴɪɴɢ Cᴏɴsᴜʟᴛ, Nᴀᴛɪᴏɴᴀʟ Tʀᴀᴄᴋɪɴɢ Pᴏʟʟ # 2110047, 50 (Oct. 2021) https://assets.morningconsult.com/wp-uploads/2021/10/18135638/2110047_crosstabs_MC_TECH_FACEBOOK_Adults_v1_CC.pdf (finding 51% of adults “very concerned” and 31% of adults “somewhat concerned” about “[s]ocial media’s influence on users’ mental health”); Id. at 75 (finding 23% of adults “strongly support” and 29% of adults “somewhat support” government regulation of social media companies).

[6] See, e.g., Cristiano Lima-Strong, Senate Poised to Pass Biggest Piece of Tech Regulation in Decades, Wᴀsʜ. Pᴏsᴛ (Feb. 15, 2024, 4:22 PM), https://www.washingtonpost.com/technology/2024/02/15/kids-online-safety-act-kosa-senate/; Cristiano Lima-Strong, House and Senate on Collision Course Over Child Privacy, Wᴀsʜ. Pᴏsᴛ (July 28, 2022, 9:00 AM), https://www.washingtonpost.com/politics/2022/07/28/house-senate-collision-course-over-childrens-privacy/.

[7] See Kyooeun Jang, Lulia Pan & Nicol Turner Lee, The Fragmentation of Online Child Safety Regulations, Bʀᴏᴏᴋɪɴɢs Iɴsᴛ. (Aug. 14, 2023), https://www.brookings.edu/articles/patchwork-protection-of-minors/.

[8] Id. (“Big tech companies . . . have fought recent state legislation, and NetChoice, a lobbying organization that represents large tech firms, recently launched a lawsuit contesting Arkansas’s new law, and also challenged California’s legislation last year.”). In 2022, the top six social media companies, Facebook, Instagram, Snapchat, TikTok, Twitter, and YouTube, are estimated to have earned $11 billion in revenue from advertisements served to users under the age of 18. See Amanda Raffoul, Zacharey J. Ward, Monique Santoso, Jill R. Kavanaugh & S. Bryn Austin, Social Media Platforms Generate Billions of Dollars in Revenue from U.S. Youth: Findings from a Simulated Revenue Model, PLᴏS ONE 1, 3 (2023).

[9] U.S. Cᴏɴsᴛ. art. I, § 8, cl. 3.

[10] Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 364 (2023).

[11] See Brannon P. Denning, Reconstructing the Dormant Commerce Clause Doctrine, 50 Wᴍ. & Mᴀʀʏ L. Rᴇᴠ. 417, 422 (2008).

[12] See Note, The Dormant Commerce Clause and Moral Complicity in a National Marketplace, 137 Hᴀʀᴠ. L. Rᴇᴠ. 980, 980 (2024) (“noting that the Dormant Commerce Clause “has proven difficult to pin down”).

[13] An Act Banning TikTok in Montana, SB 419 (2023), available at https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf. The preamble makes abundantly clear that the law is motivated by fears that TikTok serves as a tool of “corporate and international espionage” on behalf of its Chinese parent corporation, ByteDance, although it also alludes to concerns with viral pranks spread by the app. Id.

[14] Alario v. Knudsen, No. 23 Civ. 23, 2023 WL 8270811, at *1 (D. Mont. Nov. 30, 2023).

[15] Id. at *16-17.

[16] Id. at *17-18.

[17] Netchoice, LLC v. Bonta, No. 22 Civ. 8861, 2023 U.S. Dist. LEXIS 165500, 4-5 (N.D. Cal Sept. 18, 2023); Netchoice, LLC v. Griffin, No. 23 Civ. 5105, 2023 U.S. Dist. LEXIS 154571, 3-5 (W.D. Ark. Aug. 31, 2023).

[18] Bonta, 2023 U.S. Dist. LEXIS 165500, 71-72; Griffin, 2023 U.S. Dist. LEXIS 154571, 3-5.

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