There is no denying that 2025 will be regarded as a tumultuous year for free speech. In such a moment, it’s paramount to remember and reflect on the basics of free speech as a matter of law in the United States. Free speech is guaranteed by the First Amendment. The First Amendment, like most other constitutional protections, is what is known as a negative right. Negative rights are restrictions on government actions, as opposed to positive rights which are entitlements to something. Therefore, protections for speech and the press are guaranteed by the restriction of government action, rather than some proactive role.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Unfortunately, this very basic and important concept has been expediently cast aside by many in the press, reflected by the latest push for the Journalism Competition Preservation Act (JCPA). Despite its name, what the JCPA would do is weaken existing competition laws and blur the lines between the government and media. The core of the JCPA is an antitrust exemption that would allow news publishers to form government-approved cartels to negotiate with online platforms. This is the opposite of fostering a competitive market. By allowing established media giants to collude, the JCPA would create a system that favors entrenched players and makes it harder for new, independent voices to emerge.
What’s most concerning however is just how anathema the JCPA is to the First Amendment’s underlying principle of government restraint. First, the JCPA opens the door for government bureaucrats to have a say in what constitutes a “legitimate” news source. This is a perilous step towards government-sanctioned media, undermining the editorial independence that is crucial for a free press. Further, the JCPA’s “must-carry” provisions would trample on this fundamental right by forcing publishers and online services to host content they might otherwise deem inappropriate or of low quality. This provision is a direct assault on the First Amendment, effectively stripping platforms of their right to editorial discretion—a right every newspaper editor takes for granted and that the Supreme Court has recently affirmed for online services in a case brought by NetChoice.
Far from preserving and empowering a free and independent press, JCPA would create a system where the government essentially picks winners and losers in the media industry, leading to news outlets becoming more beholden to political pressures. This threatens the integrity of journalism and further undermines the public’s already dismal trust in the media.
No amount of subsidization can restore public confidence in legacy journalism, and as the market has shown, no subsidy is needed to enable competing outlets. New online publications, such as The Free Press, Daily Wire, Punchbowl News and Semafor, are gaining audiences and advertising share as Americans look for alternatives.
In a year defined by intense debate over speech, the JCPA stands out as a particularly dangerous and misguided proposal. It fundamentally inverts the principle of the First Amendment, transforming a shield against government overreach into a sword for government intervention. By asking lawmakers to create a government-sanctioned cartel, proponents of the JCPA are trading away the core tenets of a free and competitive press for a short-sighted and state-managed bailout.
The path to a sustainable future for journalism does not lie in cronyism and coercion, but in the very principles the JCPA wants America to abandon: vibrant competition, innovation, and an unwavering commitment to keeping the government out of the newsroom. For the sake of a truly free press, Congress must reject this perilous path.
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