MANDATING DIGITAL PLATFORM SUPPORT FOR QUALITY JOURNALISM.

• Author: Netanel, Neil Weinstock

TABLE OF CONTENTS I. INTRODUCTION 474 II. HARM CAUSED BY PLATFORMS 478 A. Advertising 479 B. Gateway to Readers and Maintaining Brand for Quality Journalism 481 III. QUALITY JOURNALISM 483 A. The Fourth Estate 483 B. Especially Valuable and Vulnerable Quality Journalism 487 1. Investigative Journalism 488 a. Definition and Import 488 b. Economics 489 2. Local Journalism 493 a. Definition and Import 493 b. Economics 493 IV. LEADING INITIATIVES FOR SALVAGING QUALITY JOURNALISM 495 A. Intellectual Property 495 1. Copyright 496 2. Misappropriation of Hot News 498 3. Legislating a News Publishers' Right 500 a. Article 15 Press Publisher's Right 500 b. Ineffectiveness of Press Publishers' Right 502 c. Off Target 505 B. Leveling the Competitive Playing Field 506 1. Asserting Antitrust Against Platforms 506 2. Antitrust Exemption for News Media 509 3. Mandating Platform Bargaining 510 C. Facebook and Google Initiatives 512 D. Conclusion 514 V. EXCISE TAX ON DIGITAL ADVERTISING REVENUE 514 A. Background: Public Funding of News Media 514 B. An Excise Tax on Digital Advertising Revenue 516 C. Allocation of Tax Proceeds 519 D. Parallels in Other Countries 521 E. Comparison with Other Public Funding Proposals 522 VI. SUPPORT FOR NEWS PUBLISHER BRANDS 523 A. Prioritizing Original Reporting 526 B. Prominence for Original Reporting 529 C. News Publishers' Rights to Linking and Trustworthiness Rating 531 D. Open API 532 VII. POSSIBLE FIRST AMENDMENT OBJECTIONS 535 A. Excise Tax on Digital Advertising to Support Investigative and Local Journalism 536 1. Discriminating Among News Publishers and Projects 536 2. Imposing an Excise Tax on Platforms' Digital Advertising Revenue 537 B. Requiring Digital Platforms to Accord Priority and Prominence to Original Reporting and to Maintain APIs for News Publishers 538 1. Not Compelled "Speech" 539 2. Must-carry Analogy 542 VIII. CONCLUSION 545 I. INTRODUCTION

Our democracy depends on a vibrant press dedicated to informing the electorate and holding the powerful to account. Yet American newsrooms have suffered a precipitous decline in recent years. Since 2004, more than 2,100 newspapers have closed up shop, leaving more than half of U.S. counties without a daily newspaper. (1) As Jill Lepore painfully laments, newspaper after newspaper "cut news coverage, or shrank the paper's size, or stopped producing a print edition, or did all of that, and it still wasn't enough." (2) Indicative of the industry's severe economic distress, the market valuation of major daily newspapers, including the Boston Globe/Worcester Telegram & Gazette, Chicago Sun-Times, and Minneapolis Star Tribune, dropped by more than 90% between the 1990s and early 2010s. (3) Throughout the industry, newsroom employment fell by 47% from 2004 to 2018, and the hemorrhage has continued since. (4) Two areas of reporting that are vital to democratic governance have been especially hard hit: original, investigative journalism and local news coverage. (5)

Several factors have contributed to journalism's tailspin. They include debt-financed media conglomeration, the global financial collapse of 2008, a glut of online content, and the loss of classified advertising to Craigslist. (6) But in recent years one factor looms particularly large: the overwhelming market power of digital platforms, principally Google and Facebook.

As detailed below, digital platforms inflict multiple wounds on news publishers. First, Google and Facebook have devoured the advertising revenue upon which American news publishers have heavily depended for over a century. (7) Second, digital platforms have become most newsrooms' principal gateway to readers. In so doing, the platforms usurp news publishers' traditional role of curators, editors, and distributors of journalists' work product, thus diminishing news publishers' ability and incentive to maintain a distinct brand representing the type of journalism that readers value. (8)

Commentators and policymakers have proposed various measures to salvage journalism from digital platforms' catastrophic impact. Their aim is not merely to shore up a troubled industry. Rather, they seek to ensure that news publishers, whether commercial, publicly funded, or non-profit, will continue to produce "quality journalism" of vital importance to democratic governance. (9) Media scholars define "quality journalism" as that which aims to uncover and educate readers about facts that are matters of public concern (and of interest to actual readers) and does so in keeping with journalistic ethics of independence, transparency, trustworthiness, and objectivity (or at least openness about bias). (10)

Some media scholars employ other terms to describe democracy-enhancing journalism. These include "civic," "public," and "accountability" journalism, each of which carries a different nuance. (11) But in this Article, I use the term "quality journalism," as defined above, and I focus on two of its primary pillars: original, investigative reporting and local news.

This Article critically assesses three broad initiatives to bolster quality journalism that have recently gained traction. (12) The first accords news publishers an intellectual property right in aggregating and repackaging their news stories. The European Union has recently enacted such a news publishers' right in Article 15 of the EU's Directive on Copyright and Related Rights in the Digital Single Market of 2019. (13) The second initiative would aim to level the competitive playing field between digital platforms and news publishers. It would do so through revitalized antitrust enforcement against Google's and Facebook's anticompetitive business practices; providing news organizations with an exemption from antitrust law to permit them to negotiate collectively with digital platforms; or mandating digital platform bargaining with news publishers under threat of compulsory arbitration. (14) The third initiative involves sundry moves by Facebook and Google to provide support for the press, instituted in the face of public pressure from news publishers and the threat of regulatory intervention. As I detail below, the three initiatives--publishers' intellectual property rights, antitrust, and major platforms' seemingly voluntary moves--would be variously ineffective and conceptually off the mark. They are also insufficiently targeted at bolstering the quality journalism upon which our democracy depends.

I then proffer a distinct two-part blueprint for mandating digital platform support of quality journalism. First, I propose that the federal government should levy an excise tax on digital advertising revenues to help fund investigative journalism and local affairs reporting. As I explain, this proposal is a supplement to other proposals for public funding of news media, ranging from direct government subsidies to citizens' vouchers. (15)

Second, I propose various measures to support news publishers' efforts to bolster distinct brands for quality journalism. Public recognition is vital for providing news publishers with an incentive to invest in costly, high-quality journalism. To that end, major digital platforms should be required to give priority and prominence to original journalism. Google and Facebook have each announced voluntary plans to favor original reporting over repackaged content in their feeds. (16) My proposal would deepen that proposed practice and would ground it in government regulation, applicable to all major digital platforms that distribute news stories. In addition, as I will explain, news publishers should have the right to demand that platform news feeds link to the news items on the publisher's website and display a certification of trustworthiness from a third-party media watchdog of the news publisher's choice. I explore two vehicles for furthering these brand fortification objectives: direct regulation of platforms' content curation algorithms and mandating that platforms provide open application interfaces ("API") that would enable news publishers to offer their own curated news content to platform users.

My argument proceeds as follows. Part II elucidates how digital platforms have harmed quality journalism. Part III reviews why professional, quality journalism remains critical for a functioning democracy, and explains why investigative journalism and local reporting are particularly vulnerable to digital platforms' displacement. Part IV critically assesses the three leading proposals for salvaging quality journalism: granting news publishers an intellectual property right in news content, leveling the competitive playing field through antitrust law, and the major platforms' own initiatives. Part V presents my proposal for an excise tax on digital advertising as a source for public funding of investigative journalism and local news coverage. Part VI presents my proposals for measures fortifying news publisher's brand identity to bolster publisher incentives to invest in quality journalism. Part VII addresses First Amendment issues that my proposals might raise. Part VIII concludes.

2. HARM CAUSED BY PLATFORMS

   Digital platforms harm quality journalism in two basic ways. They usurp news publishers' advertising revenue and they impede news publishers' ability and incentive to build a reputation for quality journalism. This Part considers each in turn.

   1. Advertising

      While Google and Facebook are known for their respective dominance of search and social network services, their primary source of revenue is digital advertising. Together, Google and Facebook reap over half of U.S. digital advertising revenue and over 90% of digital advertising growth. (17) The two technology company giants exercise extraordinary market power--and engage in considerable self-dealing--in various aspects of the complex digital advertising market. (18) They simultaneously attract advertiser dollars to their respective platforms, run electronic auction marketplaces...