JCPA would Break Content Moderation and Violate the First Amendment

Yesterday, TechFreedom was joined by leading academic experts in a coalition letter to the Senate Judiciary Committee expressing deep concerns about the Journalism Competition and Preservation Act (JCPA). While the bill aims to support serious journalism, the JCPA will be weaponized against moderation of misinformation, hate speech, and various other forms of online content that are corroding our democracy. The bill is simply not ready for markup, and we recommend further hearings on how it will affect content moderation before taking any further action.

The JCPA violates the First Amendment in several ways:

• Potentially compelling platforms to carry (and pay for) content of digital journalism providers that are part of “joint negotiation” cartels
• Prohibiting both cartels and platforms from discriminating against digital journalism providers based on viewpoint—ensuring endless litigation over routine content moderation decisions about promotion, ranking, placement, and monetization 
• Imbuing negotiating cartels with legally sanctioned power to coerce platforms into not moderating content that violates their community standards

Benefiting some digital journalism providers over others based on subjective assessments of their journalistic quality may seem like sound policy, but it violates the First Amendment. As such, courts are likely to construe the criteria for defining “qualifying publications” broadly enough to include purveyors of misinformation and hate speech, giving them an equal share in the governance of each cartel and allowing them to benefit from protections intended for serious journalism.

Core provisions of this bill resemble the highly partisan legislation recently enacted in Florida and Texas to restrict content moderation. The essential feature of all three bills—banning viewpoint discrimination by private parties—violates the First Amendment. So, too, does the process of mandatory arbitration that the bill establishes. It’s up to Congress to pass amendments that would right the ship and fix the bill.