Today, TechFreedom was joined by seventeen leading, Competition, and Internet law scholars in a letter to the Senate Judiciary Committee renewing our concerns over the ill-named Journalism Competition and Preservation Act of 2023. Unfortunately, despite positive amendments last year, the bill remains a serious threat to First Amendment rights and content moderation.
“The JCPA is government overreach at its worst—meddling that is both inappropriate and counterproductive,” said Ari Cohn, Free Speech Counsel at TechFreedom. The bill would create an unprecedented exemption to antitrust law and allow publications that meet subjective editorial process requirements to jointly negotiate with online platforms over the pricing and terms of access to their content. “The government has no business providing special benefits only to what it considers ‘legitimate journalism,’ just as it has no business forcing platforms to treat content as such. To avoid this First Amendment problem, courts will likely interpret the eligibility criteria broadly—to the benefit of the very content providers that Congress was trying to exclude.”
“Worse, JCPA’s anti-retaliation provision will force platforms to carry, promote, and pay for content that violates their policies,” Cohn continued. Amendments adopted from last year’s bill prohibit negotiating over content moderation, but the bill still broadly prohibits “retaliating” against a journalism provider engaged in a negotiation or arbitration. “Virtually any content moderation activity can be framed as retaliation, as could a platform’s decision that it would rather not carry certain content if it must pay for it. But the First Amendment protects these editorial judgments, and bars forced subsidization of speech. Congress cannot impose a price on expression and then force other speakers to purchase it.”
“The JCPA’s broad definition of ‘access’ would also force platforms to pay for content that they would never consider carrying,” Cohn concluded. The bill would trigger payment obligations whenever a platform “crawls” or ‘acquires’ content. “Crawling is how a platform determines what the content is in the first place—and whether it might violate their policies. Forcing platforms to pay for merely reading the content is nonsensical. It makes even less sense when providers upload content directly to a platform. Forcing a platform to pay for ‘acquiring’ that uploaded content would allow an eligible provider to upload content that glorifies terrorism, or incites violence, and demand payment for it.”
- Our letter on the California Journalism Preservation Act (Apr. 4, 2023)
- Our third 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)
About TechFreedom: TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.