Senate Judiciary Passes Bill Boosting Journalism Bargaining Power

Senate Antitrust Subcommittee Chair Amy Klobuchar, D-Minn., pulled the bill during markup earlier this month when Cruz first offered the amendment (see 2209080043). She worked with the office of Cruz and co-sponsor John Kennedy, R-La., over the past two weeks to reach agreement on language that passed with the bill Thursday. The bill creates a limited antitrust exemption to allow news publishers to collectively bargain with tech platforms for the use of their content.

Klobuchar initially objected to Cruz’s amendment over fears it would allow a loophole for tech platforms trying to avoid negotiating with journalism outlets. Klobuchar told the committee the latest language makes clear that content agreements between Big Tech and journalism outlets are outside the bill's scope. It addresses Cruz’s concerns in a content-neutral way, she said.

Big Tech “hates this bill,” Cruz told us after the markup. “If the bill becomes law, it will be the first federal legislation that puts significant consequences to Big Tech censorship, and that is a major step forward and victory for free speech. I hope its prospects are good, but we’ll see.”

It’s unclear whether the bill has the 60 votes it needs, Kennedy told us: “It hasn’t been whipped, at least on my side of the aisle, but I know there will be some opposition. There will be some opposition among Democrats. It’s a tough issue.” Sens. Jon Ossoff, D-Ga., and Alex Padilla, D-Calif., said during the hearing they aren’t ready to support the bill on the floor, though they voted yes Thursday. Republicans voting against were: Texas’ John Cornyn, Utah’s Mike Lee, Nebraska’s Ben Sasse, Missouri’s Josh Hawley, Arkansas’ Tom Cotton, North Carolina’s Thom Tillis and Tennessee’s Marsha Blackburn. Ranking member Chuck Grassley, R-Iowa, told us he’s not worried about the bill passing if it gets to the floor. Senate Majority Leader Chuck Schumer, D-N.Y., taking up the bill is the question, said Kennedy.

Padilla has concerns the added journalism revenue will only pad the profits of corporations instead of benefiting working journalists. He told us he's also hesitant because the bill could undermine efforts to “battle disinformation” and the proliferation of hate speech.

The bill has nothing stopping platforms from deciding not to carry publishers’ content or deindexing content because they don’t want to pay for it, said Lee. He applauded efforts to restrict censorship but said Cruz’s amendment might undermine the entire bill. There are concerns about the sanctioning of the formation of cartels, which is a “troubling” contradiction against antitrust law, he said. “Let’s break up Big Tech, let’s take on their dominance of the ad stack, but I’m not a big fan of creating a cartel to fight a cartel,” Hawley told us. Hawley and Blackburn also voted against the amendment from Cruz, which passed by voice vote.

Ossoff said he’s concerned the bill’s implementation could affect journalism and publishing, and about the unintended consequences of consolidation within the publishing sector. It carries long-term impacts on the First Amendment, fair use and access to information that’s posted publicly, he said. “My hope is that improvements can be made as we move through the process,” he told us.

NAB and the News/Media Alliance applauded passage. “Local news outlets are at the mercy of a handful of Big Tech gatekeepers that dictate the terms by which their content appears online,” said NAB CEO Curtis LeGeyt. “This legislation would level the playing field by enabling fair negotiations between news publishers and dominant digital platforms for the market value of their local content.” News/Media Alliance CEO David Chavern urged the House Judiciary Committee to hold a vote on the bill next week, “likely the last opportunity to move the JCPA out of Committee before the midterm elections.”

Public Knowledge, the Computer and Communications Industry Association and Re:Create asked the Senate to reject the bill. “While objective journalism is critical to informing voters, inserting federal regulators into private sector business negotiations, mandating carriage of what the government thinks is ‘news,’ and promoting cartels is an irresponsible way to encourage an independent and robust news media,” said CCIA President Matt Schruers. PK called the bill a threat to content moderation. It “allows publishers to sue Facebook or Google for taking down content that the platforms find offensive or contrary to their community standards,” said Senior Policy Analyst Lisa Macpherson. Hate speech will be even harder to police because of the Cruz amendment, she said. Re:Create Executive Director Joshua Lamel opposed forcing platforms to carry and pay for media content and “creating a copyright loophole that will obstruct consumers’ basic access to information online.”