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Can Legislation Save Journalism in California?

One of the biggest problems facing news publications over the past decade has been the fact that digital publishers have swallowed a huge chunk of the profits. The major tech platforms—Facebook, Google, Apple—largely controlled how much traffic a news site would get, and served as gatekeepers for both readers and ad dollars. They even sometimes dictated how outlets built their newsrooms: the phrase ”pivot to video,” inspired by an edict from Facebook, is both a dark joke and a post-traumatic stress trigger for many former colleagues. And in recent years, this dynamic has only gotten worse, as the big tech companies take a larger and larger chunk of the pie by keeping viewers on their own platforms rather than sending them to the actual websites whose information they’re using.

But it’s not hopeless.

There have been some serious legislative efforts to address this problem. In 2021, Australia passed a first-of-its-kind law to force social media companies to share a portion of the profits they make from news content with news companies. (The law brought in almost $150 million in its first year.) Canada followed suit last year. 

Now California lawmakers are seriously considering the California Journalism Preservation Act, a bill modeled on those countries’ laws with the aim of arresting and reversing the decline in local media. It would be the first of its kind in the US. (Similar legislation has been introduced in Congress but so far hasn’t gotten much traction.) The bill would force the big tech companies into an arbitration process with newsrooms, to establish a fee that the companies would pay to carry news articles. It passed the California State Assembly last July with broad bipartisan support. Its backers hope that after some modifications, it could become law later this year.

Unsurprisingly, the bill has run into vocal opposition from Big Tech. Meta threatened to pull news from Facebook and Instagram in California if it becomes law. (The company carried through on this threat in Canada.) But the legislation also has faced criticism from some journalists and media experts, who worry that the bill as currently crafted could result in a payment scheme that encourages high-volume clickbait, and would disproportionately benefit larger newsrooms while doing little to help smaller ones.

I talked to Buffy Wicks, the Democratic assembly member who represents the East Bay and is the bill’s lead sponsor, about how the proposed law would work, when it might pass—and what changes she’s considering making to it after hearing from journalists and other stakeholders.

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Here’s our conversation, edited for length and clarity.

CJ: Walk me through what this legislation aims to achieve. 

BW: It requires the tech platforms to pay for the content they repurpose. We’ve lost about one hundred publications in California in the last ten years. There’s been a pretty, pretty intense decline of journalism. The LA Times just laid off a hundred and twenty people. So it’s pretty alarming, and there’s a desire to quickly act on this so that we don’t continue to lose more newsrooms.

It has bipartisan support. I think that’s really important. A lot of the colleagues who became big supporters of the bill were colleagues of mine who came from local offices. When they were in city council or on the county commission, they’d have these Tuesday night city council meetings where they’re making budgetary decisions and policy decisions that impact people’s day-to-day life, and there was just literally no one covering it. There were no more reporters covering the work they were doing.

You introduced this bill last year, but after some criticism you agreed to pause it until this year to address concerns. Why?

Some of the critiques of the bill I actually share—I think it’s stuff that we have to work through. One of the critiques is, “If the payment is allocated by impressions, does that incentivize clickbait?” I think it’s something we should think through. We don’t want to incentivize clickbait. 

In addition to that, another critique was, “Will this [do more to benefit out-of-state] publications like the New York Post?” “How do we ensure that the resources benefit California-based publications, or publications that have a significant footprint in California if they’re not based here?” Those are some of the concerns that I also want to work through. So Senate Judiciary chair [Tom] Umberg came to me and said, “Can we make this a two-year bill? Put the bill on pause and work through those issues?” And I said, “Yes, we can.” I’d rather get it right than get it quick.

What changes have you made since last summer?

Part of the reason we held it was so that we can see what happened in Canada, and that has been very informative.

They have their payout structure based on the number of employees, versus impressions [quantity of Web traffic]. That could be a better model that I think helps address the clickbait concern. 

We have a fund out here in California—twenty-five million dollars went to UC Berkeley to fund journalism fellows [who] would go to a lot of [local] publications. We’re looking at potentially portioning out some of the funds toward that program.

We’re also trying to figure out how we can ensure in code that the money goes to California-based publications, or publications with a large footprint here, without violating federal interstate commerce law. 

We’re in the middle right now of negotiating…talking to my colleagues, but then also chatting with the philanthropic nonprofit publications [which have been critical of the bill], the larger publications, the [journalists’] guilds, the ACLU…so that we can land this plane in a way that we feel like is fair. 

Obviously we’re talking to Google and Meta as well.

As you mentioned, a number of smaller news organizations are worried that the payout scheme would disproportionately benefit large newsrooms, and leave them out. Are you considering adjusting the payout structure to avoid this?

We are going to make changes.

In the current bill, we have a mechanism where the smaller publications can band together. The Oakland Post is a smaller Black-owned publication in Oakland. They’re not going to lawyer up and go on to take on Google in an arbitration process. 

But if you get all of Black media plus ethnic media plus the smaller publications together, and it’s more economies of scale for them to actually hire legal representation and actually go into the arbitration process to ensure that they have a real seat at the table, so they can come together collectively.

It’s like baseball-style arbitration. One side says, “I think that I’m owed this much.” The other side says, “I think I should pay this much.” And whatever the arbiter feels like is the most accurate amount, they pick. They don’t split the difference. So that encourages both sides to come to a fair deal. But we’re looking at other things in the bill similar to Canada, where if you have a separate agreement already in place, or if you want to develop an agreement, you wouldn’t be part of this process. I don’t care how the companies get there so long as they’re paying for the content they’re repurposing and that there’s transparency on how that money is spent.

What timeline are we looking at right now for this? 

We’ll bring it back up in the Senate Judiciary Committee, I think, in June, and then it’ll be on the floor for a vote in the Senate in August and off to the governor’s desk.

Has Gov. Gavin Newsom taken a position on this bill?

He has not weighed in on it.

I have not talked to him about it yet. I think it’s too early. We’re still negotiating with all the stakeholders. We still have a lot of work to do on the bill to get it into a place where it’s going to get out of committee and on his desk.

Meta has been pulling back from news on Facebook for years. How can you be sure that the tech companies are bluffing, like you said, and won’t just fully pull out of news?

They bluffed in Australia. They threatened to pull out, and they came back forty hours later or something like that. They pulled out in Canada. The question is, do they go back or not? It’s a gift for us because we can see how it’s playing out in real time there. 

Having said all of that, they may pull out. [Meta CEO Mark] Zuckerberg has said publicly they want to get out of news. So it’s not been a secret. They may be wanting to get out of news regardless.

I don’t think it’s the same thing for Google. They can’t get out. Google’s entire value proposition is that they are the owners of information. How does that work if they don’t have journalism, published content?

I think the fact that Google has paid out in Canada makes it difficult for them to say they can’t do it here.

What national impact do you hope this would have?

If we do it the right way, it would be first in the nation. It can be a model for federal legislation. And it could be a model for other states. 

Other notable stories:

  • Breaking this morning: local prison officials in Russia said that Alexei Navalny, the prominent opposition leader (and sometime investigative journalist, as we have reported in this newsletter), has died. The officials claimed that Navalny fell ill after a walk and lost consciousness, though, as The Guardian notes, his death, if confirmed, “is likely to be seen as a political assassination attributable to Vladimir Putin.” In 2020, Navalny was poisoned by agents of the Russian state; he survived following treatment in Germany and returned to Russia, only to be jailed, most recently in a remote Arctic penal colony. Last month, he was seen in a video shot in prison, and appeared gaunt, if defiant. At time of writing, his team had not been able to confirm his death; the story is developing.
  • This week has been yet another brutal one for media layoffs. On Tuesday, Paramount Global made cuts across the company, including at CBS News, where around twenty staffers were laid off, including several prominent correspondents. (Among them was Catherine Herridge, an investigative reporter who has recently been fighting a subpoena to reveal her sources for a story dating to her prior job at Fox News.) Then, yesterday, NowThis laid off around half of its unionized editorial team (affecting twenty-six staffers, according to the union), while The Intercept laid off fifteen staffers, citing “significant financial challenges.” Roger Hodge, the editor in chief, will be among those departing.
  • In 2021, the Justice Department introduced a policy barring officials from seizing the records of journalists (apart from in certain limited circumstances) after it emerged that the department had done just that during leak investigations under the Trump administration. In 2022, the department codified the new rules; this week, it released fresh guidance to help staffers abide by them, CNN reports. Bruce Brown, of the Reporters Committee for Freedom of the Press, praised the guidance as evidence of the department’s commitment to “further anchor” its “historic policy changes.”
  • A year ago, Kevin Roose, a tech columnist at the Times, wrote about an unsettling exchange with a Microsoft AI chatbot that propositioned him and encouraged him to end his marriage. Now Roose reflects on the impact of the episode, which not only got wall-to-wall media attention (and even inspired the name of a craft beer) but also prompted major AI companies to add extra guardrails to their chatbots. Today, the most common complaint Roose hears about such chatbots is that they’re “too boring.”
  • And—as Ralph Nader, the consumer advocate and sometime presidential candidate, turns ninety—the Post’s Laura Wagner reports that he is still regularly peppering journalists from the Times and the Post with unsolicited feedback on their work. Getting through is another matter, however. “It’s not fun, saying that you can’t get through to the press,” Nader told Wagner. “It’s like saying you don’t have any influence anymore.”

ICYMI: Threads: You can have political content but you will have to work for it

Cameron Joseph is a freelance political reporter with recent work in The Guardian, the Los Angeles Times, Rolling Stone, and Politico Magazine. A recipient of the 2023 National Press Foundation Dirksen Award for distinguished reporting of Congress and the 2020 National Press Club award for excellence in political journalism, he previously worked for VICE News, Talking Points Memo, the New York Daily News, The Hill and National Journal.

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