In an endless game of lobbyists’ Whac-A-Mole, it’s a new year and here is new legislation trying to save the news. Except it’s not new.
First, from Oregon, comes a rehash of bad legislation written by newspaper hedge-fund lobbyists, versions of which were deflected in two other states last year. At least the Beaver State tries to add a new bit inspired by good legislation in New Jersey, but even that ends up somewhat mangled.
Next is New York. Last year, the governor signed the single worst piece of protectionist legislation to date, giving tax credits to print and broadcast news but not digital or not-for-profit news. How 1973 of the Empire State. Now a state senator has Xeroxed the same awful lobbyist’s legislation from other states and thrown it into the Albany sausage extruder.
And my Garden State is not off the hook, for though it boasts a model for other states to learn from, it also offers a silly new bill about AI and the news.
The Oregon bill, SB686, is two bills in one. The first half is a messy version of the California Journalism Preservation Act (CJPA), which I studied and testified against at the time. CJPA was superseded by Google’s deal with the state to help fund news with public and private funds.
CJPA was a near-carbon-copy of a bill that has so far been defeated in Illinois (which I also testified against), which in turn was a rendition of the federal Journalism Competition and Preservation Act (JCPA), which mercifully has gone nowhere in Congress. All these bills come initially from the pen of the News Media Alliance (NMA), the lobbyist that represents the interests of the hedge funds and billionaires who own and ruin American newspapers. The NMA is the rebranded merger of dying-industry trade associations, the 138-year-old American Newspaper Publishers Association and the 106-year-old Magazine Publishers Association.
In the first half of Oregon’s bill, it mandates a fee from only the largest internet platforms (companies with $550 billion market cap or 1 billion monthly users — i.e., Google and Meta). It requires them to pay news sites an unspecified amount for merely “accessing” their content. It is, in short, a tax on reading.
In the second half of the bill — and this is a new twist — Oregon offers platforms the choice to instead contribute a still-unspecified amount to a newly formed Oregon Civic Information Consortium. That sounds an awful lot like the New Jersey Civic Information Consortium, which has been doing excellent work — but, as I will shortly show, they are not alike.
A major problem with these bills, as I’ve testified over and over, is that they do not account for the value internet companies bring to news companies. Platforms “access” publishers’ content to benefit publishers; they “access” news to link to and bring audience to it. But Oregon’s bill specifically prohibits “any value conferred upon any digital journalism provider” — other than cash — from being reckoned in any negotiation mandated by the bill.
As I outline in my paper, we know well from Canada’s experience with its awful Online News Act that once Meta refused to negotiate and decided to take down headlines from its platforms, Facebook and Instagram suffered no loss of traffic (as verified by independent studies), while news providers lost up to half their traffic. That is to say, the headlines proved to have little to no value to the platforms, but the platforms’ links had incalculable value to news sites, now lost. Yet in Oregon, that is not to be discussed.
As with prior bad bills, Oregon’s requires that to get paid, a news site must already earn at least $100,000 in revenue or be a 501(c)(3), which leaves out a vast swath of small, new, community news outlets. This legislation, remember, is written by newspaper lobbyists to benefit newspaper owners, not new competitors. In a sop to the small guys, a big 1 percent of the money in Oregon’s bill would be paid to little guys earning less than $25,000 a year and the other 99 percent would be split among the big guys proportionate to their staffing.
Depending on their size, news providers are required to spend 50 or 70 percent of the money they receive under the bill on news and support staff. The rest, I guess, is funny money. But in fact, it’s all funny funds since money is fungible and there is no requirement that these resources will go to growing journalistic coverage in the state. The money will go straight to the owners’ bottom lines, thence in fees to the lobbyists who earned it.
As in the bills that Oregon copies, there is a nonretaliation clause, which forbids platforms from “refusing to access content” or affect its display. I will say again and again that compelled speech is not free speech. Canada could not require Meta to carry news because its human rights law would not allow it. (But we know these days that we are not nearly so enlightened as Canada.)
Oregon’s legislators kick the can on details — starting with how much money is being demanded — by requiring complex arbitration, claims administration, and auditing processes. I will spare you the details.
The other half of the bill is devoted to establishing an Oregon Civic Information Consortium to which platforms may contribute instead. Its purpose is to “advance research and innovation in the field of media and technology to benefit this state’s civic life and evolving information needs.” It requires news sites to work with universities on projects.
Here Oregon borrows the name of the New Jersey Civic Information Consortium — and its published goals — while missing the real benefits of what I call the New Jersey Model. Oregon avoids creating a new tax with the prickly political implications that comes with taxes by instead mandating a fee for “accessing content” to be paid directly by the platforms. New Jersey, in contrast, devotes public funds to the public good of journalism. New Jersey’s Consortium then raises additional private funds to support news. New Jersey’s Consortium gives grants directly to news enterprises that meet various goals. Oregon’s bill instead funnels the money through state universities — losing money and time to overhead fees and bureaucracy while also requiring the universities to match funds (not easy for any university to do in these hard times).
The New Jersey Model has another critical leg to the stool that is missing in Oregon. The NJ Consortium, its grantees, and all the state’s news ecosystem are supported by Montclair State University’s Center for Cooperative Media (where — full disclosure — I am a fellow) and its NJ News Commons (which I had a hand in founding a dozen years ago), which together provide training, mentorship, and coordination for collaboration.
About now is when I always issue my standing caveat: I get hives at the prospect of government involvement in and funding of speech, particularly journalism — witness what is happening now with the right-wing Congress attacking (again) NPR and PBS; Trump the sovereign’s new wealth fund to buy TikTok; and cases before the Supreme Court from Texas and Florida trying to compel platforms to cover noxious, right-wing speech. Danger lurks there.
But once the decision is made by state or local government to financially support local news, the New Jersey Model is the best framework for doing so that I have seen. Money does not go to feed hedge funds and their lobbyists’ but instead supports news organizations directly based on the Consortium’s published goals. Anyone can apply. Grants are awarded based on the merit of those proposals. Follow-on grants assure accountability. And the Center for Cooperative Media is there to help grantees — and all its 400-plus members — succeed. The Consortium is governed by a 16-member board made up of representatives from the state universities and appointments made by the governor’s office and legislature and the board itself. Thus far, New Jersey’s Consortium has made $9 million in grants to almost 60 applicants.
The Consortium is admirably transparent, releasing regular reports. And as I write this, it just published a case study it commissioned. I urge lawmakers thinking of writing legislation to benefit news to read the case study to see how it might be done. Indeed, as California is determining how to implement its deal with Google — and, it is hoped, more tech companies to come — I have argued that New Jersey presents a model for how to structure and operate such an effort. Without such an infrastructure, tax money or money demanded from tech companies could be wasted.
I have no personal dog in this hunt other than trying to see news ecosystems grow, rather than just handing over money to the hedge funds and billionaires who are primarily responsible for the fall of local news in America.
I also want to avoid further awful outcomes of bad legislation. I don’t want to see what happened in Canada happen here: I fear Meta could use this as an excuse to drop all news in the United States. And Google has made clear — as was also the case in Canada — that if legislation is enacted forcing it to pay for news, it will end its voluntary programs: the Google News Initiative and Google News Showcase, which provide much support to innovation and growth in news. Google (and Microsoft) are just about journalism’s last friendly benefactors in the tech industry. Why not first discuss public-private collaboration before unilaterally seeking retribution on them?
I hope that Oregon’s legislators will study both the NJ Civic Info Consortium case study and my paper about the California legislation and then I’m happy to discuss alternatives and connect them with the people doing this good work.
Now to New York. New York’s new bill, SB4401, is nothing more than a recycled copy of the News Media Alliance’s legislation.
The New York bill demands that platforms — defined as in Oregon (i.e., Google and Meta) — submit to arbitration to set an unspecified percentage of ad revenue that must be paid to news sites as a “journalism usage fee” — never mind that the platforms are promoting and linking to, not using up the news. The bill, like the others, forbids any consideration of the value platforms bring to news sites by linking to them and sending them audience, and also forbids platforms from not carrying and promoting their news. New sites are defined at any site that “has at least twenty-five percent of its editorial content consisting of information about topics of current local, national, or international public interest.” Note the “or” — the site doesn’t even have to be local.
Various organizations with savior complexes for news think that passing any legislation to support any part of the news industry is a good. No. What should be supported is growth in local news ecosystems, concentrating first on communities too long not represented in or served by incumbent, institutional “mainstream” (read: white) mass media. If you want to support old media, support Black and Latino media that have been serving their communities for generations with no public support. If you want to build the future, support innovation among young journalists and community organizations that have trust in those communities.
Says the New Jersey Consortium’s case study: “New Jersey is the first state to use state-appropriated funds to address the local news crisis and the rise of news deserts and misinformation by supporting news startup, early-stage, and more established products/outlets that seek to rebuild the community information network and grow the local news ecosystem.”
Growth is the goal, not short-term salve to failing legacy businesses. Do not just hand money over to the open palms of dying newspapers and pablum broadcasters and their national corporations. I keep telling politicians that they need not fear and cater to these old media outlets, which no longer buy their ink by the barrel. They now buy it by the thimbleful.
And there’s one more bad bill to discuss: New Jersey’s AB5164, which would “regulate artificial intelligence in [the] news media industry.”
After repeating the trope that for an AI company to read content is theft (doing what journalists do every day when they read, learn from, are inspired by, and use information from each others’ work), this bill says it seeks to “regulate artificial intelligence, particularly in the news industry, in order to protect journalistic integrity and the responsible dissemination of news.”
How? It would establish the Artificial Intelligence in Communications Oversight Committee — just what the world is crying for, another AI committee. I’m not sure why they focus only on AI’s impact on news. The bill would prohibit “using artificial intelligence in lieu of professionals and staff.” But if this struggling industry can save precious resources by using technology to bring efficiency to mundane tasks — as it did with typesetting and presses in days of yore — why should it be forbidden from exploring that today? The bill would require prominent labeling “that the content is generative AI” (does that include transcription, translation, and spell-check?), and a disclaimer that such content may not accurately reflect the source. It would require “credit to any source used to produce the content” (if only journalists were required to faithfully do that).
With all the problems in news and our world today, this isn’t one of them.
To learn more about news legislation across the world, see this legislative update produced by Montclair State’s Center for Cooperative Media, which I hosted two months ago:
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