Experts Raise Numerous Concerns About Fair Competition, Content Moderation, And Constitutionality For The JCPA
After the Journalism Competition Preservation Act (JCPA) passed out of Committee this week, it is important to remember the following:
— The bill creates the type of antitrust exemption that has historically harmed competition and consumers.
— JCPA forces private actors to carry the speech of others, raising significant constitutional concerns.
— As with other proposed antitrust legislation, JCPA threatens platforms’ ability to moderate harmful and dangerous online content.
— Overhauling regulation to protect competitors instead of competition would harm online innovation and consumers’ access to information.
“The JCPA will compound some of the biggest issues in our information landscape and do little to enable the most promising new models to improve it” warns a bipartisan coalition of legal experts, public interest, consumer advocacy and civil society groups in a letter to the Senate Judiciary Committee. Signatories include Association of Research Libraries, Authors Alliance, Center for Democracy & Technology, Chamber of Progress, Coalition for Creativity (C4C), Common Cause, Computer & Communications Industry Association, Consumer Reports, Creative Commons, EFF, Fight for the Future, Free Press Action, Internet Archive, Library Futures, Local Independent Online News Publishers, Patreon, Public Knowledge, R Street Institute, Re:Create, Techdirt, and Wikimedia Foundation.
The bill creates the type of antitrust exemption that has historically harmed competition and consumers.
— “Historically, antitrust exemptions have not accomplished beneficial goals, and instead have harmed competition and consumers, entrenched existing power structures and increased codependence between industry incumbents,” cautions the coalition letter. “The JCPA will cement and stimulate consolidation in the industry and create new barriers to entry for new and innovative models of truly independent, local journalism.”
— The JCPA would allow media conglomerates to create a cartel and collude on price fixing, the “supreme evil of antitrust,” writes Project DisCo. “Under the JCPA, news publishers and broadcasters would receive a free pass to collude against digital advertising services. The bill would clearly shield price fixing and legalize collusion, the ‘supreme evil of antitrust,’ The likely and unfortunate consequence of this would be advertisers ending up paying higher prices, which would be consistent with the results of antitrust exemptions in other sectors and industries. Generally speaking, most antitrust exemptions are disfavored by experts, who regard similar permissions to form a cartel as ‘a product of special interest pressure within the legislature.'”
— Antitrust exemptions typically increase concentration at the expense of consumers, explains a 2007 report from the Antitrust Modernization Commission. “Typically, antitrust exemptions create economic benefits that flow to small, concentrated interest groups, while the costs of the exemption are widely dispersed, usually passed on to a large population of consumers through higher prices, reduced output, lower quality, and reduced innovation.”
— “The Journalism Competition & Preservation Act would make a bad media problem worse by opening the door to more consolidation, more power for the big guys, and less community news & information,” writes retired FCC Commissioner Michael Copps.
JCPA forces private actors to carry the speech of others, raising significant constitutional concerns.
The bill forces private actors to carry and support others’ speech, going so far as to demand online platforms to subsidize the speech:
— “As currently drafted, this scheme is hopelessly unconstitutional. It forces private actors to publish others’ speech, and to subsidize that speech. Both actions are independent First Amendment landmines, which the JCPA stomps on with vigor,” explains Project DisCo.
— Moreover, Project DisCo writes: “The JCPA bans regulated platforms from removing links to publishers demanding to be paid for the traffic they receive (Sec. 6(a)(2) and Sec. 6(b)(1)). Platforms are therefore forced to display user-posted content from publishers, but upon doing so, must pay that publisher.”
— The bill “sets a legal and political precedent that some uses of content that were once free of charge now require payment,” explains the coalition letter. “Requiring payment for using facts flies in the face of Supreme Court precedent, based on the First Amendment, that no one may own facts.”
— The bill “forces platforms to negotiate for payments and to carry the content of any digital journalism provider that qualifies to be part of a joint negotiation,” the coalition letter further warns. They explain that: “This form of government mandate for covered platforms to carry and pay is also a violation of First Amendment protections.”
As with other proposed antitrust legislation, JCPA threatens platforms’ ability to moderate harmful and dangerous online content.
— “[T]he bill continues to invite extensive and protracted litigation over content moderation, which will deter platforms from engaging in moderation in the first place. We also remain deeply concerned that the bill will operate as a ‘must-pay’ mandate for all DJPs because a covered platform must pay any DJP whose content it ‘accesses,’ whether or not it displays that content,” warns TechFreedom and a group of legal scholars.
— The coalition letter explains that the “new language [in JCPA] forces platforms to negotiate for payments and to carry the content of any digital journalism provider that qualifies to be part of a joint negotiation, regardless of how extreme their content.”
— “In that regard, the JCPA would directly affect current content moderation practices by inhibiting platforms’ ability to take down dangerous information and protect their users. Although objective journalism is critical to informing users, policymakers should be careful not to interfere with platforms’ ability to engage in First Amendment-protected editorial discretion and not to curtail the platforms’ own important guidelines and policies in this area,” writes CCIA in a letter.
— Springboard explains that the same content moderation concerns in the JCPA are also present in the American Innovation and Choice Online Act (AICOA) and experts from Free Press, TechFreedom, and Taxpayers Protection Alliance have all noted the contradictory view and goals of Democratic and Republican lawmakers with respect to the bills’ impact on content moderation. Springboard has also previously noted lawmakers had similar conflicts around AICOA.
Overhauling regulation to protect competitors instead of competition would harm online innovation and consumers’ access to information.
— The bill being considered to regulate this industry could “reduce free and open access” to the internet and information, explains Public Knowledge. “[T]he JCPA, and particularly what would be required to enact it, would actually reduce free and open access to the internet, and the information available to citizens for civic engagement.”
— “[L]aws like the JCPA could make it more difficult and costly for platforms to provide access and allow users to share this sort of information from small, local news sources. Consumers might end up facing additional paywalls as online platforms will have to pay for sharing news,” warns Jennifer Huddleston.
— Proposals to change the way consumers access news online would block “an important aspect of the value of web content,” writes Professor Tim Berners-Lee. “Requiring a charge for a link on the web blocks an important aspect of the value of web content. To my knowledge, there is no current example of legally requiring payments for links to other content. The ability to link freely – meaning without limitations regarding the content of the linked site and without monetary fees – is fundamental to how the web operates, how it has flourished till present, and how it will continue to grow in decades to come.”