Facts of the case
Colorado website designer Lori Smith owns 303 Creative, LLC., a limited liability company providing website creation services. When Smith’s services expanded to include wedding websites, she wanted to create a message on her webpage explaining that her Christian faith prohibited her from designing websites for same-sex weddings. Upon noticing that this message would violate Colorado’s anti-discrimination laws, Smith sued the state in a pre-enforcement challenge. The U.S. District Court for the District of Colorado ruled against Smith, upholding the constitutionality of the laws. She then appealed to the Tenth Circuit, which ruled in favor of Colorado, causing Smith to petition to the Supreme Court.

Question for the Court
The Court considered whether forcing a website designer to create designs going against her personal beliefs violated her First Amendment rights.

Decision
In a 6-3 decision by Justice Gorsuch, the Court ruled that Colorado could not force the designer to create designs that go against her beliefs. Justice Gorsuch concluded that requiring Smith to create certain designs violates the compelled speech doctrine and that, in his perspective, Smith refused to create particular messages rather than refusing to serve particular clients. Justice Sotomayor filed a dissenting opinion in which Justices Kagan and Jackson joined, arguing that the law regulated Smith’s conduct, not her speech. Sotomayor wrote, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

Free press implications
The ruling is intentionally narrow; only prohibiting a vendor from being compelled to create a product that is both customized and expressive when the vendor disagrees with the message being conveyed by the product. How this may impact news publishers or magazines remains to be seen as the ruling gets applied to other scenarios. However, it may come into play if a publisher finds itself subject to a law that attempts to compel speech or create a “right of reply” (see Miami Herald Pub. Co. v. Tornillo that overturned Florida’s “right of reply” law).

For further reading, please visit:
SCOTUS blog: 303 Creative LLC v. Elenis

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“We are very pleased Senators Feinstein, Hirono and King have joined in support of the JCPA, and we applaud them for their commitment to sustaining high-quality journalism. Publishers must be compensated by the Big Tech platforms for use of their valuable content, and the JCPA will ensure they receive the compensation they need and deserve to be able to continue providing the important news and content that supports a strong and informed society. We look forward to working with all of the co-Sponsors to advance the JCPA toward becoming law.”

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Arlington, VA – The News/Media Alliance applauds Senate Antitrust Chairwoman Amy Klobuchar (D-MN) and Senator John N. Kennedy (R-LA) for today reintroducing the “Journalism Competition and Preservation Act” (JCPA). The bill would provide digital journalism providers the ability to collectively negotiate with Facebook and Google for fair compensation for the use of their valuable content. Currently, publishers do not have the ability to negotiate these deals on their own, as the dominant tech platforms capture the majority of U.S. digital ad revenue, leaving publishers with little to reinvest in the production of high-quality journalism. This follows in the wake of other countries’ successful compensation systems for publishers, with Australia’s Media Bargaining Code and European legislation leading the way and Canada and the UK expected to follow.

In response to the bill reintroduction in the Senate, News/Media Alliance Executive Vice President & General Counsel, Danielle Coffey said, “The time is now to pass this critical legislation that will protect and sustain local journalism, now more important than ever to ensuring an informed society. Emerging technologies such as AI are making it even more clear the need for compensation when content creators may soon see even less return than what they receive today. The cost of inaction is simply too great to ignore any longer. We must ensure that the digital ecosystem returns value back to the people who deliver high-quality journalism we all rely on around the world.”

Since 2018, the News/Media Alliance has been vocally advocating for such legislation in the U.S. “A compensation framework between news publishers and the tech platforms will help correct the current imbalance in the marketplace whereby Google and Meta have set the rules that everyone else must play by,” Coffey said.

Previously reintroduced in the 117th Congress (S. 673 and H.R. 1735), the Senate Judiciary Committee completed its bipartisan markup of the JCPA in September 2022. The bill received broad support, not only in Congress where it had 90 co-sponsors in the House and Senate (on both sides of the aisle), but also from over 300 consumer interest groups, unions, conservatives, advocacy groups and third-party organizations. In addition, nearly 24,000 individuals signed a Change.org petition for the bill and nearly 1,000 editorials in support of the JCPA have been published in newspapers in 48 states across the country. In a poll of 1,000 U.S. adults conducted in April 2022, 70 percent of Americans said they support Congress passing the JCPA.

The bill nearly passed into law in December when it was included in the NDAA legislation package. However, as it did in Australia just before the Media Bargaining Code passed there, Meta threatened to remove news from Facebook in the U.S. if the JCPA passed, further demonstrating their outsized power.

The JCPA has now been reintroduced in the 118th Congress to continue progressing forward.

Coffey added, “We are grateful to Chair Klobuchar and Senator Kennedy for their commitment to quality journalism, and we look forward to working with them to ensure small and local news publishers receive fair compensation from the platforms for the valuable journalism they work tirelessly to provide. News publishers need a lifeline, and the JCPA is that lifeline.”

More information on the bill can be found on the News/Media Alliance website at www.JCPABill.com.

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Media contact:
Lindsey Loving
Director, Communications
lindsey@newsmediaalliance.org

The News/Media Alliance is a nonprofit organization representing more than 2,000 news and magazine media organizations and their multiplatform businesses in the United States and globally. Alliance members include print and digital publishers of original journalism. Headquartered just outside Washington, D.C., the association focuses on ensuring the future of journalism through communication, research, advocacy, and innovation. Information about the News/Media Alliance can be found at www.newsmediaalliance.org.

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On October 17th, a Maryland circuit court judge struck down the state’s tax on digital advertising services. The ruling held that the tax violated the Internet Tax Freedom Act, the Constitution’s Commerce Clause, as well as the First Amendment. The Alliance applauds the court’s decision and maintains the stance that taxes on advertising are bad public policy, and harmful to the economy. The Alliance successfully fought for the exemption of newspapers and magazines under the legislation upon its original passage in 2020. The Alliance acknowledges the importance of advertising revenue for publishers as a means to providing quality news to their communities and will continue to oppose legislation that negatively impacts that ability.

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On September 26, the News/Media Alliance filed comments with the Federal Trade Commission (FTC) in its proceeding about Endorsement Guides Concerning the Use of Endorsements and Testimonials in Advertising. In these comments, the Alliance supports the FTC’s efforts to clarify these guidelines and advocates for guidance that doesn’t burden news publishers or magazines. The FTC’s proposed guidance on Live Reads is in line with the Alliance’s requested clarification in its earlier comments in this same proceeding. The Alliance specifically addressed “the increasing reliance on influencers and social media posts to endorse products and services and supports the inclusion of certain new Examples which address these practices.”

The Alliance’s comments request the FTC differentiate its guidance on intermediary liability by clarifying the duties of news publishers and magazines to ensure they have no excessive monitoring obligations or liability for influencer actions. Because monitoring obligations and extra liability for actions entirely removed from the news publisher or magazine would be unduly burdensome, the Alliance asks the FTC to clarify this guidance to exclude any excessive liability. The comments further request flexibility in both the definition of “endorsement” and “clear and conspicuous” to ensure news publishers and magazines do not face rigid standards that are difficult to comply with. The comments explain “Alliance members have directly witnessed the evolution of the advertising industry over the past 13 years since the Guides were last updated, and support the Commission’s general efforts to revise the Guides to reflect these changes.”

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The News/Media Alliance sent a letter to the United States Postal Service Board of Governors on Friday before their next scheduled meeting on Tuesday, August 9 to discuss a proposed change in Periodicals Critical Entry Times (CETs). The Postal Service filed a request at the Postal Regulatory Commission (PRC) on April 22 to change CETs for Periodicals mail to 8 am. Periodical mailings currently have as many as five different CETs, depending on the nature of the mailing and the facility.

The Alliance and MPA previously filed comments with the PRC asserting: (1) that the Postal Service’s proposal requires that it seek an advisory opinion from the PRC prior to implementation; and (2) that the proposal will harm publishers who must meet tight production, printing, and delivery schedules. While the PRC agreed with us and has ordered the Postal Service to request an advisory opinion before implementing its proposed CET modifications, the ultimate implementation decision lies with the Postal Service itself. The Alliance will continue to keep you apprised.

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