After Congress failed to pass the problematic Journalism Competition and Preservation Act (JCPA) in the last session, California is now considering its own bill to force online platforms to fund journalism.
TechFreedom, joined by several leading Internet law scholars, wrote to the California State Assembly explaining that the California Journalism Preservation Act (CJPA) would violate the First Amendment and undermine content moderation in the same ways as the ill-fated JCPA.
Even the seemingly simple task of determining which “journalism providers” qualify under the CJPA raises significant constitutional concerns. By conditioning eligibility on subjective assessments of journalistic practices, CJPA will thrust the courts into the untenable position of deciding what qualifies as “real journalism.” The First Amendment issue is two-pronged: the government has no business determining what constitutes “legitimate” journalism, and likewise it cannot seek to benefit only that journalism that it approves of. But if legislators think that it will pull off the latter, they may be disappointed when, in order to avoid thorny constitutional questions, courts interpret the eligibility criteria so broadly as to include publications that make it harder to find reliable and accurate news.
The CJPA also violates online platforms’ First Amendment rights by prohibiting them from refusing to carry an eligible journalism provider’s content once it has demanded payment under the law. The First Amendment protects a platform’s decision about what to publish, and also what kind of expression it will subsidize. Whether or not one believes that platforms should pay for journalism content that appears on their services, the government cannot force platforms to carry—and pay for—content that they wish not to.
While it’s clear that many publications are struggling to adapt to the digital age, the solution cannot come in the form of the government’s heavy hand on the scales of speech.
We can be reached for comment at email@example.com. See our related work:
- Our letter on the Journalism Competition and Preservation Act of 2022 (S. 673), (Dec. 6, 2023)
- Our coalition letter on the September 15, 2022 markup of the JCPA, (Sep. 15. 20220)
- Our coalition letter on the September 8, 2022 markup of JCPA, (Sep. 8, 2022)
- Our Fifth Circuit brief critiquing HB 20’s common carriage theory (April 8, 2022)
- Our Eleventh Circuit brief critiquing SB7072’s common carriage theory (Nov. 15, 2021)
- Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (Apr. 14, 2021)
- No, Florida Can’t Regulate Online Speech, Lawfare (Mar. 12, 2021)
- The Wall Street Journal Misreads Section 230 and the First Amendment, Lawfare (Feb. 3, 2021)