While the Journalism Competition and Preservation Act (JCPA) was rumored to be considered as part of the National Defense Authorization Act (NDAA), it was ultimately excluded according to the latest text of the legislation. Unfortunately for consumers, this doesn’t mean the legislation is dead. Rather than attempting to prolong what they view as the “golden age” of journalism, lawmakers should instead protect the competitive process. Journalism and news have a long history of evolution, and market signals are better able to help news outlets navigate the transition to online readership than government intervention.

The JCPA — introduced by Senator Amy Klobuchar (D-MN) — would primarily target specific tech companies by creating the designation of covered platforms. This term is defined by size thresholds that are measured by monthly and active platform users as well as a company’s financials. Once designated a covered platform, these companies are then subject to specific regulations and, in the case of the JCPA, sanctioned illegal behavior from certain news providers. The JCPA would permit organized and joint negotiations by news and content creators for four years, when in negotiations against designated Big Tech platforms. 

Under current antitrust laws, this type of joint negotiation would be illegal. Section 5 of the JCPA creates legal carveouts for news outlets, and Section 5 (d) specifically refers to the carveouts as antitrust immunity. The two specific sections of antitrust laws from which new providers would be shielded are: the portion section of the Clayton Act, which prohibits interference in commerce either between states, territories, or foreign nations, and Section 5 of the Federal Trade Commission Act which prohibits “unfair or deceptive acts or practices in or affecting commerce.”

Klobuchar believes that these legal exemptions are justified due to the changes in the economy that have adversely impacted smaller and often local news sources. Klobuchar states that “local news is facing an existential crisis in our country, with ad revenues plummeting, newspapers closing, and many rural communities becoming ‘news deserts’ without access to local reporting. To preserve strong, independent journalism, we have to make sure news organizations are able to negotiate on a level playing field with the online platforms that have come to dominate news distribution and digital advertising.” 

In some regards, Klobuchar is correct. Journalism has undergone a shift as the digital ecosystem moves more news online and newspapers in general have declined. Gannett, the country’s largest newspaper chain, has been forced to close 120 newspapers in two years. The COVID-19 pandemic expedited the process, with over 360 U.S. newspapers closing between late 2019 and the end of May 2022. Most of these papers have not been replaced and have contributed to a smaller overall news and journalism marketplace.  

Part of this decline can be attributed to the digital transition of the overall economy and the struggle for news to fully transition online. However, journalism and news have not been static up until this digital transition. Attempting to preserve one period in the history of journalism shows a lack of appreciation for the evolution and changes the industry has undergone to reach this point. 

According to Chris Daly in American Journalism, news is subject to changing market conditions like other forms of industry. He identifies five specific eras: The politicization of news (1704-1832), the commercialization of news (1833-97), the professionalization of news (1900-1974), the conglomeration of news. (1965-1995), and the digitization of news (1995-). 

The professionalization of news can be characterized by the perceived independence of journalism marked by a lack of bias and reporting of neutral facts. This era is followed by the digitization of news, which is the latest phase of development, according to Daly. By reducing barriers to entry, the digitization of news has resulted in the need to garner attention as the prime focus, which can conflict with fact-based and neutral reporting. 

Based on this explanation, the targeting of Big Tech is misplaced and could backfire. If Meta makes good on its public statement that it will remove news content from its platforms if the JCPA becomes law, it would make it harder for smaller news sources to reach audiences.

Journalism as a field has and will continue to change and evolve. Unfortunately, legislation like the JCPA, which fails to consider the historical context of the news industry, could make it harder for the very outlets it intends to help. Rather than create legal carveouts against large tech companies, lawmakers should focus on protecting the competitive process. Throughout history journalism has been sensitive to market signals from readers. Such signals — not legislation — could assist in the transition to the next era of news media.