Flaws Remain in Amended California Journalism Preservation Act
California’s proposed link tax is back in the spotlight, as legislators’ proposal to subsidize media conglomerate newsrooms has been amended in advance of an upcoming hearing. The latest version of the California Journalism Preservation Act (CJPA) appears to mirror Canada’s Online News Act and gives so-called “covered platforms” two options: paying an unknown annual fee for “accessing the internet websites of the providers” or entering into arbitration with media outlets producing articles to access their content.
Due to these updates, now the bill not only remains a harmful link tax that undermines the principles of information sharing online at its core, but is looking to mimic Canada’s failures on this front. There have been multiple examples this year of how the Canadian bill has resulted in disruption for news websites. Experts continue to warn how similar occurrences would happen if the California bill passes.
The justification behind the California Journalism Preservation Act represents a fundamental misconception: the allegation that social media and search engines profit massively from hosting news content, and these profits would otherwise go to the news publications. This is not the case. Instead, small and large publications alike find and keep meaningful audiences due to the traffic that is driven to their websites from these valuable digital services. Lawmakers need to remember the internet is not responsible for the ongoing journalism crisis nor are digital services for hosting links from news publications.
The latest version of the bill has garnered positive coverage from publications owned by the “parent companies” or conglomerates that would benefit from this newsroom subsidization. Despite changes within the bill on what newsrooms qualify for funds and how they could spend them, the language still would funnel large sums to large out-of-state publications and publications owned by hedge funds or broadcasting conglomerates.
Constitutional concerns with the bill were also not addressed by the amendments. The CJPA continues to violate the First Amendment by forcing covered platforms to link to content against their choice. This is due to the bill’s “must-carry” provisions. Even worse, the bill still requires internet firms to pay for the content they must carry, an unprecedented regulatory framework in U.S. law.
Issues with the bill’s approach to copyright were not resolved either. The CJPA continues to violate the Supremacy Clause because it requires payment for the display of headlines, ledes, facts, and other elements of copyrightable works that the U.S. Copyright Act deems as freely accessible.
Implications regarding interstate commerce also were not resolved during these changes. Because of the impact on digital platforms that operate across state lines, this would lead to a tax-like burden on linking to out-of-state content. It also opens the question of whether a California-based article would have to be taxed if shown to an out-of-state resident. Since news/linking is interstate, it would fall under the Commerce Clause, which says if the nature of businesses is between multiple states, federal law has jurisdiction.
Overall, the CJPA continues to be a harmful bill that would uproot information sharing on the internet and would limit Californians’ access to the news and information they need. The bill’s approach would not benefit local or community journalism during a time of disruption. Rather, it would undermine these publications that are seeking to engage with audiences, foster online communities, and generate ad revenue at a grassroots level.
