Last week, the Journalism Competition and Preservation Act was pulled from Senate consideration after Sen. Ted Cruz managed to squeeze in a bill-killing amendment during committee markup.
The JCPA was introduced to give small- and medium-sized newspapers and broadcasters the ability to collectively bargain with tech giants like Google and Facebook that have been unfairly using news producers’ content for their own gain, even as Big Tech gobbles up the lion’s share of advertising revenue that newspapers and broadcasters need to stay afloat.
As tech companies and their platforms — Google, Meta/Facebook, Twitter, etc. — become more powerful and more pervasive, more advertisers are choosing to bypass local papers and news stations and use “targeted” advertising from platforms.
That’s a fair, free-market decision for them to make, right?
Not quite. Platforms don’t create content; they curate it and present it — and are profiting off what others have made.
Take a Google search for example. According to the News Media Alliance, between 16% and 40% of Google results are from news sources. With most searches, Google presents you with a simple answer in large font, right at the top of the page. With the question answered, you’re unlikely to click on the link where that answer came from. Same goes for virtually every result on the search page: You get a short snippet that likely has the desired information without ever having to click on the link.
In the meantime, Google paid attention to this search and others and will start sending you targeted ads, which advertisers have paid Google to show you. So, if you got the short answer from a preview of a newspaper’s article but never went its website, advertisers are more likely to pay Google to show you their ads instead of putting their ads in the newspaper or on its website. Similarly, Facebook tracks what posts and pages you interact with and shows you related ads. If you “like” a Dominion Post article about a local restaurant, even if you didn’t read the story, you might find ads in your newsfeed for that eatery or a similar national chain that paid Meta more.
JCPA could change that, though. It would — if passed as its intended version — temporarily exclude from antitrust laws news producing organizations under a certain size. This would allow them to team up and demand tech companies pay for using their content. If Google wants to show you a snippet of a Charleston Gazette article to answer your question about a chemical spill or The Dominion Post’s coverage of WVU football to show you game highlights, Google would have to pay to display any parts of those articles. How that would work — a flat fee or a pay-per-use agreement — would have to be decided at the negotiating table.
And that’s where Cruz’s amendment comes in. It states that if any party at the negotiating table even mentions content moderation (or “censorship,” as Cruz framed it), the antitrust exemption covering the news producers is immediately revoked.
This is what caused JCPA’s lead sponsor Sen. Amy Klobuchar to pull the bill. While Cruz and his cronies try to spin this as proof the point of allowing collective bargaining was to censor right-leaning media, Klobuchar rightfully points out that the language in Cruz’s amendment would allow tech platforms’ representatives to sit down at the table, mention content moderation and thereby immediately force the negotiations to end.
If the JCPA can be reintroduced, it would be a lifeline for hundreds of newspapers and news broadcasters across the country. Even with some minor changes — like an amendment that specifies only news producers can’t bring up content moderation, or excluding papers owned by large conglomerates — it could still level the playing field and allow local news to get back on its feet nationwide.
