First Amendment Ironies of the JCPA

The following can be attributed to Christopher Mohr, President, Software & Information Industry Association (SIIA) regarding Antitrust and the JCPA.

History doesn’t repeat, but it rhymes.  SIIA represents more than 600 large and small companies, including business-to-business publishers, social media platforms and analytics firms. They represent the business of information, and our mission is to protect the three stages of the information lifecycle that make that business possible: creation, dissemination, and productive use.  SIIA believes that the First Amendment lies at the core of the information lifecycle’s health.

Suppose a town had only a couple of newspapers and the town dictated that newspapers had to carry opposing op-eds on request. Suppose further, this was motivated by a concern over rapidly changing technology and a decrease in access to ideas.  Then the state passes a law requiring newspapers to carry opposing views.  It wouldn’t be a surprise if the newspapers ended up suing and had that statute invalidated.

Turns out that actually happened–in 1974. In a case called Miami Herald v Tornillo, the state of Florida passed a statute requiring that newspapers be required to run editorial positions opposing those taken by the newspaper itself.  The reasons given by the state in support of the statute included many of the same issues animating this legislation, including a “monopoly of the means of communication,”[1] its fears of a “communication revolution,” “advocacy journalism,” and the influence of a “press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and the course of events.”[2]

Fast forward.  Congress is now considering forcing platforms to do something quite similar.  The Journalism Competition Protection Act prohibits a “covered platform” from discriminating against “any eligible digital journalism provider” based, among other things, on the views expressed by that entity and prohibits “retaliation” against entities that engage in “joint negotiations.” A separate and concerning novelty in the bill is that for the first time, platforms in the future would be required to pay for reporting the fact of a website’s online location (namely, linking).  Other parts of the bill, when read with the above “nondiscrimination” provisions effectively prohibit online platforms from considering the cost to their business of carrying ideas that destroy their desired communities.

Even more to the point, it would be a dangerous thing for the government to determine which ideas have gotten “too much sway.”  By prohibiting online platforms from applying basic content moderation policies, the JCPA would destroy the ability of private businesses to make their own First Amendment-protected decisions about what information they wish to carry and how.

That’s a road Congress we have suggested that Congress avoid.


[1] See Senator Ted Cruz, Remarks at the Senate Judiciary Committee Executive Business Meeting, Markup of the JCPA (Sept. 22, 2022).

[2] Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 249-250.

Comments are closed.