The news media has long enjoyed a special place in anti-trust law, as it should. Since newspapers and television networks have the power to influence the way people vote, allowing too many of them to be concentrated in too few hands could have powerful anti-democratic implications.
And for decades, Congress used nominal federal ownership of the airwaves to impose rigid limits on media ownership within markets, with the goal of ensuring a competitive array of voices and viewpoints. Ownership of a newspaper and a TV station in the same market was prohibited, and any individual broadcaster's share of the audience was capped at 25 percent. That began to change in earnest only in the 1990s, as the rise of cable television and the internet allowed media conglomerates to argue that consumers had no shortage of options.
What didn't change was the underlying premise: We need a plethora of aggressive and well-funded news outlets for America to work the way it's supposed to. That's clearer than ever in 2017. From Theranos and Uber to Michael Flynn and James Comey, the role of a strong press watchdog in keeping the powerful accountable has never been more apparent.
Unlike newspapers and their kin, internet platforms don't occupy any special place in American legal thinking. It's precisely because search and social media aren't seen as having particular influence over how people think and vote that Google and Facebook have been able to roll up a quasi-monopolistic share of digital advertising expenditures. (More than 70 percent of every new dollar spent on digital goes to one of those two companies.) After all, it's not like they're competing with news companies for influence or scoops.
The problem, of course, is that the publishers and the platforms are very much part of the same ecosystem. All those dollars Google and Facebook are hoovering up have to come from somewhere, and a great many of them are coming from newspapers. Since the turn of the century, the U.S. newspaper industry's annual revenue has fallen by more than $40 billion.
This situation is in no way the creation of either Facebook or Google. It was Craigslist that first swept the legs out from under newspapers by absconding with the classifieds section--the most profitable advertising that newspapers ran, and likely the easiest money the industry ever knew. A decade ago, it was "aggregators" like the Huffington Post that were earning threats of litigation from companies like The New York Times, which accused them of shoplifting expensive reporting and tarting it up with catchy headlines to reap the clicks. Since then, the situation has grown dire, especially for local and regional newspapers outside the biggest markets. (To name just two examples, the Tampa Tribune and Denver's Rocky Mountain News both shuttered in recent years.)
Now, the newspaper industry has a new plan.
The News Media Alliance, a trade organization comprising more than 2,000 papers, is asking Congress to grant an exemption from anti-trust laws that would enable them to negotiate as a collective, in much the same way union members are allowed to band together to bargain with management. "If [publishers] open a unified front to negotiate with Google and Facebook--pushing for stronger intellectual-property protections, better support for subscription models, and a fair share of revenue and data--they could build a more sustainable future for the news business," News Media Alliance CEO David Chavern writes in a Wall Street Journal op-ed announcing the proposal.
It's an idea with precedent behind it. Remember, the point of anti-trust law as it applies to media is to preserve a diversity of voices. Sometimes that means limiting ownership concentration, but sometimes it means sheltering vulnerable players from market forces. That was the objective of the Newspaper Preservation Act of 1970, which paved the way for joint operating agreements in which competing newspapers in the same hometown combined some business functions to save costs.
Granted, such agreements weren't much better than a Band-Aid on the decline of local papers. And Stratechery analyst Ben Thompson thinks a new antitrust exemption for newspapers would be similarly pointless, at best allowing them to extract insignificant concessions from the platforms that don't address the underlying economics. He would prefer to see the news industry move onto a completely different footing, charging its readers directly via subscriptions rather than monetizing their attention through advertising.
The weakness with that model is that publishers who put up paywalls continue to compete with publishers that give their content away for free. Financially, some of them have been able to make that trade off work. But, again, we're talking here about anti-trust law and its ultimate aim: to ensure a healthy competition of ideas. Were most newspapers to put their reporting behind paywalls, the result could be very unhealthy.
We got a taste of that in the 2016 election cycle. Facebook and Google may not compete with news outlets to influence public opinion, but they are the primary vectors for other entities that do so. "Fake news" has important advantages when competing on an even footing with the legitimate kind. There's no cost of newsgathering when you're making it up, and foreign governments may even be willing to underwrite production and distribution of it if it suits their propaganda aims.
Both Facebook and Google say they are eager to crack down on fake news and have taken steps in that direction. But both companies have also been saying for years they care deeply about supporting "quality journalism." Their efforts to do so have been less than paradigm-rattling.
Publishers understand by now not to rely too much on such assurances. It would be better for us all if they didn't have to. If newspapers think the key to their survival is a dose of the laissez-faire regulation that let Silicon Valley flourish, isn't it worth letting them try?