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Klobuchar’s Revised Link Tax will Require Online Services to Pay for Vile Content

Senator Amy Klobuchar’s Journalism Competition and Preservation Act (JCPA) is back – even worse than before. The JCPA was ostensibly written to “preserve strong, independent journalism.” This may seem like a laudable goal, but the JCPA is irredeemably bad legislation that will have significant, adverse unintended consequences, especially to journalism. Its latest form, the JCPA contains an amendment to force online platforms to host and pay for vile and offensive content.

The JCPA started as a link tax, similar to the one written in Australia to appease (and enrich) big media and its owners. The tax forces platforms to pay news outlets for linking users to their publications by allowing most outlets with under 1,500 employees (which covers all but the three largest U.S. newspapers) to form joint negotiating cartels. These cartels are empowered to demand payment from websites like Google and Facebook, which face civil liability for nonpayment – conduct which would otherwise be illegal. Requiring payment for clicks fundamentally changes how the open internet works, and, ironically, the charge is for sending the news outlets’ traffic — an unequivocal boon for news outlets’ business models.

But the most recent version of the bill goes far beyond a link tax. It also threatens websites’ critical ability to moderate content. When the JCPA was in the Senate Judiciary Committee a couple months ago, Senator Ted Cruz added a manager’s amendment prohibiting platforms from “discriminating” against any news outlet in a negotiating entity based on their size or “viewpoint.” News outlets this applies to would extend far beyond The Federalist and Mother Jones. This amendment means Google must host white nationalist publications like the Daily Stormer; refusing to do so would be discrimination based on viewpoint. 

Cruz’s amendment passed by a one-vote margin. This means Klobuchar is now the prime sponsor of a must-carry bill which would effectively force Google News into hosting fringe disinformation providers. Indeed, if the JCPA becomes law, almost any publisher will be able to force their way into Google News by forming a joint negotiating cartel and threatening Google, or its competitors, with a costly civil lawsuit for refusing to host them. In this way, the current version of the JCPA undermines online platforms’ ability, and First Amendment right, to choose what content they host. 

The First Amendment’s free speech clause provides broad editorial discretion for private platforms of all sizes and ideological bents over the content they host. The Supreme Court established this right unequivocally in the 1974 case, Miami Herald v. Tornillo. Other federal appellate courts have affirmed it since then, with rare exception. Importantly, a private platform’s editorial freedom does not waver based on its medium. Just as the First Amendment bars Congress from forcing newspapers to include every viewpoint on every topic, it also bars Congress from forcing an online news aggregator or search tool to link to sources it chooses not to feature.  

The JCPA’s misguided content moderation provisions are a lot like recent, state-level, must-carry laws for user content on social media, which also give the government control over what content appears online. Florida’s SB 7072, which NetChoice is currently challenging in NetChoice v. Moody, forces websites to host any and all content from registered political candidates and loosely-defined “journalistic enterprises.” Texas’s HB 20, which NetChoice is currently challenging in NetChoice v. Paxton, bans websites from removing content based on the “viewpoint” it expresses. Both of these laws, like the JCPA, try to impose civil liability on platforms’ First Amendment right to choose the content they host.

The JCPA compromises websites’ First Amendment right to remove offensive content, forces them to pay for content that is free and forces unwanted association between websites and news outlets. Unsurprisingly, it has attracted a diverse coalition of detractors, including many groups which are generally not defenders of the tech industry. Both the House and Senate should heed these groups’ concerns and vote against the JCPA to ensure websites’ ability to moderate content remains intact.