Instead of an Antitrust Exemption for Newspapers, End Antitrust

America’s traditional newspaper publishers are struggling in the era of the internet. So, they’re looking to Congress for help. Representative David Cicilline obliged, introducing the Journalism Competition and Preservation Act of 2018 (JCPA). The Act would

provide a temporary safe harbor for the publishers of online content to collectively negotiate with dominant online platforms regarding the terms on which their content may be distributed.

That is, award an exemption from the antitrust laws.

The New Jersey Star-Ledger, not surprisingly, enthusiastically supports the law. In its 10/30/18 editorial, This website is under siege by Facebook and Google. Send help, the Star-Ledger wrote:

James Madison feared that our democracy cannot survive without the free and independent press -- "chequered as it is with abuses," he admitted, but essential for "all the triumphs which have been gained by reason and humanity over error and oppression."

That's still the mission statement. That is probably why journalism is the only profession Madison deemed important enough to be granted explicit protection in the Constitution [the First Amendment], and as he would have guessed, the press is just as crucial today as it was in the 1780s.

What is different is how we access it: Most of us read news in digital form, often through portals such as Facebook and Google News. Odds are you are reading this sentence through one right now. It is heartening that the demand for news remains extremely strong on the internet. Its appeal to advertisers remains very robust.

But only a few companies benefit financially from that digital ad revenue, and they do it without supplying any of the digital news content.

This is an economic imbalance that needs to change.

My emphasis. The Star-Ledger argues that

The only way to break the Facebook/Google duopoly is to allow 2,000 newspapers to take them on in a collective negotiation, but antitrust laws protect these trillion-dollar web behemoths from united actions by publishers.

The Star-Ledger concludes by again invoking James Madison and democracy:

These solutions cannot wait. At the time of year when we consume news at a voracious rate, this is an ideal moment to tell your Congressman that you care about the digital landscape and the future of news. Because our democracy, as Madison predicted, depends on it more than ever.

There’s undoubtedly an element of disingenuousness in the Star-Ledger’s position. The alleged “Facebook/Google duopoly” broke the predominantly Leftist mainstream press’s stranglehold on news. So, the demise of the newspaper business is probably driven in part by competition. Suddenly, people can bypass the newspapers for a more freewheeling news source. I’m a longtime reader of the Star-Ledger, and I see first hand the Leftist bias in the news reporting. So, I shed no tears for the newspapers.

Also, for all of the Star-Ledger’s invoking of the First Amendment, the editors “forget” that the First Amendment broadly protects freedom of speech, not just press. Yet the Star-Ledger has no qualms about stifling freedom of speech for non-journalists, including its opposition to Citizens United, one of the most important pro-free speech Supreme Court decisions ever.

And just five years ago, the Star-Ledger called for an antitrust assault  on Google. So it is really rich for the Star-Ledger to now plead for “help” today. (To be fair, perhaps the Star-Ledger has changed its views since then. It writes, “Nobody wants a war. Newspapers do not want to deny the digital platforms the ability to distribute their content.”)

That said, I left these comments:

The first paragraph tempted me to stop reading and turn the page. Madison didn’t want to protect democracy. He hated democracy. That’s why he championed a new constitution--to make America a republic that protects individual rights from the political power of electoral factions. He wrote the First amendment because free expression is an inalienable right, not to “save” democracy.

That little piece of fake news aside, I sympathize with the Star-Ledger. Newspapers should be exempt from antitrust laws. So should everyone else. The problem is precisely that these laws are "flexible and adaptive”--a zealous prosecutor’s dream. A flexible law is no law at all. It is the rule of men; i.e., tyranny. And that’s antitrust. Antitrust punishes competitive success but also hampers competition by forbidding companies from exercising their economic power earned in the marketplace. The call for this exemption proves the point. Why should 2,000 newspapers be banned from using collective negotiation in the first place? Why should these trillion-dollar web behemoths be protected from united actions by publishers?

Like I said, I sympathize with the Star-Ledger. But I also don’t like exemptions from laws for some, but not for others. That’s institutionalized cronyism. Law enforcement should be equal. Law enforcers should not have the power to dish out favors.

Antitrust has a long history of abuse. It is also based on myths about free markets. Yet antitrust has widespread support in our culture. It’s time to consider the argument against. The fact that the Journalism Competition and Preservation Act of 2018 (JCPA) has been introduced, and that traditional newspapers believe they need it to survive, is itself an indictment against antitrust. I recommend “The Abolition of Antitrust” by Gary Hull.

Related Reading:

The Abolition of Antitrust--Gary Hull

My [Small] Place in the Journalism World

Note to #FREEPRESS: A Free Press Derives from Freedom of Speech

Norquist/McAuliffe Fall Short on Antitrust

Antitrust Prosecution of Apple is Rotten

My published letter-to-the-editor: Google not a Monopoly (Scroll down to the fourth letter)

SCHOLARS WITH THUMBSCREWS: ANTITRUST’S PREDATORY ACADEMICS—Tom Bowden