Destructive legislative ideas often take a number of years before they’ve overstayed their welcome in the halls of Congress. Unfortunately, such is the case with the Journalism Competition and Preservation Act (JCPA). The bill is based on an Australian news media law, which would give traditional media outlets exemptions from existing antitrust laws. This allows them the ability to collectively bargain with tech companies for compensation for sharing of their content. If passed in the United States, JCPA would be a disaster for the economy and online discourse.
JCPA has rightly been rejected a number of times by lawmakers. The bill was first introduced in 2019, having gotten no traction and fizzling by the end of the session. It was again re-introduced in 2021 and passed out of the Senate Judiciary Committee after a chaotic markup. The bill again could not get broader support in the full Senate. Sponsors tried a last-ditch effort to get the bill text added to the National Defense Authorization Act (NDAA), but failed after observers rightly noted how very much unrelated it is to national defense.
In Australia, the bill has had a rocky start. Facebook temporarily pulled all news links off of its platform for Australian users. A separate deal had to be negotiated with the nation’s government to restore access to news on Facebook in Australia. Google warned it would also severely inhibit search results. Ultimately, tech companies had to make tough adjustments and are nowpaying out roughly $200 million per year to news outlets for sharing their links.
It is important to note that Australia’s population is roughly one-thirteenth the size of the United States’. If you were to expand the results and numbers coming from Australia to a media market as large as the United States, tech companies would be shelling out more than $2 billion annually to comply with the JCPA. This would amount to a massive giveaway to legacy American media outlets.
There are also severe First Amendment concerns with bills like JCPA. Under the terms of the legislation, the federal government would get to decide which news outlets are exempted from antitrust law. This puts the government in clear position to determine which outlets it deems “legitimate” or not. JCPA was ironically introduced mere days after journalist Matt Taibbi was targeted for IRS audit scrutiny after he helped blow the whistle on government pressuring tech companies to censor speech. To pass such a bill after that would be tone deaf to the potential threats.
JCPA’s re-emergence onto the federal scene also represents another disturbing trend in American governance. Policymakers are using antitrust policy to achieve political outcomes well outside the scope of antitrust. Conservative supporters of JCPA want to punish big tech companies for their alleged censorship and leftist biases. Progressive supporters of the bill want to punish big tech companies for their respective sizes and help amplify news media they believe avoids supposed “misinformation.”
This is also the reason why JCPA has failed and will inevitably do so again. Those unrelated political outcomes that those on both sides of the aisle are attempting to accomplish here are miles apart. Congress has seen the same story play out with other antitrust bills like the Open App Markets Act (OAMA) and the American Innovation and Choice Online (AICO) Act.
The renewed push for JCPA also ignores that other solutions already exist to the problem the bill sponsors are ostensibly trying to solve. The law currently has stringent regulations around media ownership, which apply to more traditional types of news, but not tech companies. Instead of making cartelization of media legal, policymakers could reform or remove these restrictions to allow traditional media to merge, grow, and innovate to become competitive with their tech counterparts.
Giving the government more power over speech very rarely turns out well and JCPA will not be the exception to this rule if passed into law. The government has shown itself time and time again to be an untrustworthy steward of said power. Even recently, it has weaponized itself against political opponents – so much so a special committee was formed to address the issue. Beyond that, JCPA will come with another set of economic complications that are not worth the effort.
