It’s time for the feds to stop hassling and spying on the press

FBI headquarters. Photo (cc) 2008 by zaimoku_woodpile.

Previously published at GBH News.

It was a move reminiscent of the post-9/11 Patriot Act, which allowed federal investigators to spy on the reading habits of library and bookstore customers in the name of fighting terrorism.

Last week we learned that the FBI had subpoenaed USA Today in pursuit of Internet Protocol addresses and other data. The goal was to help the agency figure out the identities of people who had read a story last February about a Florida shootout in which two FBI agents were killed and three were wounded. The subpoena specifically cited a 35-minute time frame on the day that the shootings took place.

Fortunately, USA Today’s corporate owner, Gannett Co., the nation’s largest newspaper chain, took a principled stand and fought the subpoena. On Saturday, the FBI backed down. There’s already little enough privacy on the internet without having to worry about the possibility that government officials will be looking over our shoulders as we’re reading.

We are in the midst of a systematic assault on the media’s role in holding the powerful to account. And it’s long past time for our elected officials to do something about it by passing legislation rather than relying on assurances by President Joe Biden that he’s ending these abuses. After all, Biden’s assurances can be undone by the next president with the flick of a pen. We need something stronger and more stable.

Barely a month ago I wrote about the revelation that the Trump Justice Department had spied on three Washington Post reporters’ phone records. I observed that Trump’s actions were in line with a long string of presidential attacks on the media, from Richard Nixon to George W. Bush to Barack Obama.

Since then, the revelations have come at a dizzying pace. In addition to the USA Today subpoena, which strikes me as especially egregious since it targets readers rather than journalists, there have been at least two other noteworthy instances of abuse:

• In late May, CNN reported that the Trump administration had secretly obtained 2017 email and phone records of Barbara Starr, a longtime reporter for the network. The period in question was June 1 to July 31, 2017.

• In a particularly noxious abuse of the government’s power, The New York Times reported several days ago that the Justice Department had subpoenaed Google for the email records of four Times reporters — and that, though the inquiry had begun under former President Donald Trump, it continued under Biden. As recently as March, the Justice Department obtained a gag order prohibiting Google from informing the Times. That order was later amended so that a few top officials at the Times could be told, but not executive editor Dean Baquet.

“It is urgent that we hear from the attorney general about all three Trump-era records seizures, including the purported reasoning behind them and the rationale for not notifying the journalists in advance,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement released last week. “The goal must be to ensure that such abuses never occur again.”

Compounding the problem is the widely misunderstood belief that government officials are violating the First Amendment. For instance, on CNN’s “Reliable Sources” this past Sunday, Adam Goldman, one of the four Times reporters targeted in the Google probe, said, “The U.S. attorney’s office in D.C. has a history of trampling on the First Amendment, so that’s why I wasn’t surprised. They treat the media, they treat newspapers like drug gangs.”

In fact, over the past century the Supreme Court has interpreted the First Amendment in such a way that the protections for news gathering are exceedingly weak.

Protections for publication and broadcast are strong, which is why the press has been able to report on secret stolen documents — from the Pentagon Papers to the Snowden files — with few concerns about facing prosecution.

But the court has ruled that journalists have no constitutional right to protect their anonymous sources. And with regard to the current string of spying revelations, the court has held repeatedly that journalists enjoy no special rights that would not be available to ordinary citizens.

President Biden recently pledged to end the practice of seizing reporters’ records, saying the practice is “simply, simply wrong.” Some observers questioned whether he actually meant it, since he’d be breaking not just with Trump’s abuses but with longstanding practice. That, in turn, led press secretary Jen Psaki to assure journalists that Biden planned to follow through on his pledge.

But what a president does, a future president can undo. To guarantee that the press will be able to perform its watchdog role, we need a federal shield law so that reporters won’t be compelled to reveal their confidential sources. Such protections — either by law or by court decision — are already in place in 49 states, with the sole exception being Wyoming.

We also need legislation that prevents the government from secretly spying on journalists’ online activities — and on readers’ activities as well.

No doubt opponents will insist that the government needs to be able to spy in order to keep us safe. But the Post, CNN and Times cases appear to involve the Trump administration’s politically motivated attempts to learn more about the origins of the Russia probe, including the activities of former FBI Director James Comey. The USA Today case did involve a much more serious matter. But after dropping its demands, the FBI told the BBC that “intervening investigative developments” made the information unnecessary.

Which is nearly always the case. Rarely does the government’s desire to interfere with the press’ role involve a situation that’s literally a matter of life or death. And the law can accommodate those rare instances.

In general, though, the government should go about its business without compromising the independence or freedom of the press.

Is government-funded local journalism an idea whose time has come?

U.S. Treasury. Photo (cc) 2007 by Adam Fagen.

The local news crisis has some people talking seriously about government funding for journalism. The idea isn’t entirely new. Nonprofit news organizations enjoy tax benefits, and public broadcasters receive some federal money. As I recently reported for GBH News, federal pandemic relief actually meant that 2020 was a better year than 2019 for some media outlets.

But what comes next? Local media are being squeezed on one side by technology and on the other by avaricious chain ownership. Ideally, you would want to find ways to help independent news organizations without rewarding the corporations and hedge funds that are cutting newsrooms without conscience. But it’s hard to imagine how you would draw distinctions between the two.

Moreover, direct government assistance raises serious questions about how journalism can play its traditional watchdog role if it’s receiving money from the watchdog. It strikes me that it would be a hard sell with taxpayers, too. Nevertheless, some smart people are thinking about how we can provide communities with the news and information they need in an era of market failure.

One idea was offered recently by Osita Nwanevu in The New Republic. Under the headline “The Next Infrastructure Bill Should Save Local Journalism,” Nwanevu writes:

Really, the administration’s push for a more capacious definition of infrastructure should encourage us to think even more creatively about what else should qualify for the next package as it takes shape. Can it seriously be argued, for instance, that access to the news isn’t an important feature of any well-functioning society? We all depend upon a steady stream of accurate information; obviously, we owe much of our awareness that America’s infrastructure is crumbling to the work of journalists who helped alert policymakers and the public to the problem in the first place.

Nwanevu notes that the $3 per capita we currently spend on public broadcasting is a pittance compared to the $90 that is the average in many other developed countries. He also writes favorably of ideas that Andrew Yang put forth during his presidential campaign for a fellowship program for journalists and a “Local Journalism Fund” to help news outlets transition to sustainability. But Nwanevu is also thinking bigger than that, calling for $30 billion to $40 billion over the next 10 years.

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I’m not sold, though, mainly because Nwanevu only half-defines the problem. He cites the challenges posed by technology and the rise of Google and Facebook, but he makes no mention of corporate ownership, which has made the crisis much worse than it needed to be. With chains like Gannett and hedge funds like Alden Global Capital bleeding their newspapers dry, there is no money left over to invest in the future. Meanwhile, a number of independent news organizations across the country, for-profit and nonprofit, are doing a good job of serving their communities. We need more.

The Columbia Journalism Review recently published a conversation with the longtime media reformer Robert McChesney; Steve Waldman, the co-founder of Report for America; and the economist Andrea Prat. All of them offer their own ideas for providing some public assistance for news, with McChesney’s proposal for a “Green New Deal for journalism” being the most ambitious. He describes the challenge this way:

This is the public policy imperative facing the United States regarding journalism in 2021: we need the funding to support independent, competitive, professional local news media. That money must come from the government, but we cannot allow the government to pick and choose who gets the money. The policy must be like the postal subsidy of newspapers: large enough to get the job done, and it cannot discriminate on the basis of ideology or political viewpoint. Censorship is entirely unacceptable. It must allow the people to make of it what they will, and trust them in the process of self-government.

So how would McChesney accomplish that? Through elections at the county level (that wouldn’t really work in Massachusetts, which is pretty much county-free) to elect boards that would distribute between $32 billion and $35 billion a year over a five-year period to fund local news and foster the development of new nonprofit organizations. It’s pretty breath-taking, and McChesney admits there’s no support for such a plan in Washington at the moment. But the value McChesney has always brought to the table is that he thinks big and gives us a chance to wrap our minds around larger possibilities.

Waldman’s plan, by contrast, already has a great deal of support on Capitol Hill: a $250 refundable tax credit to pay for local news subscriptions or to donate to nonprofit media outlets. He would like to see a tax credit for hiring and retaining journalists as well, which is something currently being done in Canada.

Prat, though, argues that the tax credits would mainly benefit large news organizations, whereas “the most urgent problem is not the overall information level but its distribution across the population.” A voucher system, he says, “would give more access to information-poor people.”

So, has the moment come for government-funded news? My own guess is probably not, at least if we’re talking about the ambitious proposals put forth by Nwanevu and McChesney. But some modest assistance aimed at helping news organizations make the transition to a sustainable future might well be a good idea.

Waldman’s tax credits and Prat’s vouchers could be seen as extensions of the help we already provide through nonprofit tax incentives. And surely we can provide more funding for public media while broadening the definition to include community-based journalism.

Everything needs to be on the table.

It’s no surprise that Google Podcasts include hateful content

I think there’s something of a category error in today’s front-page New York Times story on the hateful and false content you can find on Google Podcasts. Reporter Reggie Ugwu repeats on several occasions that Google Podcasts includes some pretty terrible stuff from neo-Nazis, white supremacists and conspiracy theorists that you won’t find at Google’s competitors. He writes:

Google Podcasts — whose app has been downloaded more than 19 million times, according to Apptopia — stands alone among major platforms in its tolerance of hate speech and other extremist content. A recent nonexhaustive search turned up more than two dozen podcasts from white supremacists and pro-Nazi groups, offering a buffet of slurs and conspiracy theories. None of the podcasts appeared on Apple Podcasts, Spotify or Stitcher.

The problem here is that Apple, Spotify and Stitcher are all trying to offer a curated experience. Google’s DNA is in search. If you Google “InfoWars,” you expect to be taken to Alex Jones’ hallucinatory home of hate and disinformation. And you are. So if you search Google Podcasts, why should that be any different? Indeed, that’s exactly the reasoning Google invoked when Ugwu contacted them for comment:

Told of the white supremacist and pro-Nazi content on its platform and asked about its policy, a Google spokeswoman, Charity Mhende, compared Google Podcasts to Google Search. She said that the company did not want to “limit what people are able to find,” and that it only blocks content “in rare circumstances, largely guided by local law.”

Let me be clear. It doesn’t have to be this way. Google could choose to keep its searches wide open while providing users of Google Podcasts with the same safe experience that its competitors offer. And maybe it should. It’s just that I find it unremarkable that a search company would run its business differently from those whose business model is based on creating a safe, walled-in environment.

I’m hardly a Google fanboy. I’d like to see it broken up so that it can no longer use search to leverage its advertising business to the disadvantage of publishers. But unless you think it ought to stop showing hate-filled websites when you search for them, then I don’t think you should be surprised that it also shows you hate-filled podcasts.

Rep. Cicilline to push bill allowing news publishers to negotiate with Big Tech

Could Australian-style rules to force Google and Facebook to pay for news be coming to the United States?

U.S. Rep. David Cicilline, D-R.I., told the CNN program “Reliable Sources” over the weekend that the House will soon take up legislation that would give news publishers an antitrust exemption allowing them to bargain collectively with the Big Tech platforms. The purpose would be negotiating a compensation system.

“Local news is on life support in this country,” said Cicilline, who chairs the House Judiciary Antitrust Subcommittee. “The monopoly power of these two platforms is resulting in a significant decline in local journalism.”

More broadly, he said his committee will also take up parts of a 450-page report, compiled over 16 months, to rein in the power of the giant platforms. He told host Brian Stelter that many of the recommendations in the report have bipartisan support and are aimed at breaking up the tech companies’ monopoly power.

The most intriguing of those ideas, according to a recent story by Cat Zakrzewski in The Washington Post, involves “interoperability and data portability, which would make it easier for consumers to move their data to new or competing tech services.”

Facebook has massive market dominance, and it would be difficult for a competitor to get a toehold in the market in any case. But it would be at least somewhat more feasible if users could easily transfer all their data over to a new service and delete it from Facebook, something that is almost impossible to do at the moment.

Regardless of what happens, it seems that Google and Facebook may soon no longer be able to operate with impunity. I’m far from certain that the Australian system is the best way to go given that it privileges entrenched publishers like Rupert Murdoch. But the idea that the platforms should pay something for what they use is long overdue.

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Facebook to fund revenue models for community news projects

When Facebook has announced various initiatives to help news organizations, they have tended to benefit larger newsrooms that are less in need of assistance. For instance, when the News Tab was unveiled a year and a half ago, it was explicitly designed to benefit behemoths like The New York Times, The Washington Post and BuzzFeed.

As I wrote then: “At a time when local news is under unprecedented economic pressure, the News Tab will only widen the gap between relatively well-off, highly visible national news organizations and small local projects. The national sites will get paid; the local sites will be billed monthly.”

On Wednesday, though, LION (Local Independent Online News) Publishers announced a $1 million, two-year initiative funded by the Facebook Journalism Project to help its members develop their revenue models. Anika Anand, deputy director of LION Publishers, writes:

Through an application process, we will select a group of LION member organizations that will receive up to two years of funding to hire someone who will focus primarily on revenue generation with the goal of making their position self-sustaining at the end of the two years. For our first cohort, we will prioritize news businesses pursuing sustainability through a revenue strategy focused on readers, major donors or advertisers. Every LION member will be considered eligible for this program — their tax status will not matter.

In other words, the program is open to for-profit and nonprofit ventures alike.

News organizations that are part of LION are sources of reliable journalism, and they’re providing it on the community level, where the news implosion has hit the hardest. With 262 members, $1 million isn’t going to go a long way. But we do seem to be at a moment at which Facebook and Google understand that they are going to have to pay for the news they’ve been using. The LION program is exceptionally worthy.

Let’s call this a good start.

Can Gannett and McClatchy’s joint venture reinvigorate national advertising?

At root, the debate over whether Google and Facebook should pay for news is about how their duopoly destroyed the value of digital advertising and then kept most of the revenues for themselves.

News, which is expensive, can’t survive on the pennies brought in by Google’s programmatic ads. That’s why there’s been so much emphasis in recent years on reader revenue — an emphasis that, at least in a few places, is starting to pay off.

Still, it would surely be a positive if news organizations could develop a revenue stream other than digital subscriptions. When readers are empowered, they expect their preferences and prejudices to be catered to. You need a balance. That’s why it’s interesting to see Axios’ recent report that Gannett and McClatchy will combine forces to sell national advertising for their hundreds of local and regional papers.

Can Gannett and McClatchy’s efforts drive up the price of digital ads? That’s the real issue, and without that their effort is not going to have much of an effect. Of course, it also does nothing to boost ad sales at the local level, which have been on the decline for years. Yes, local businesses have gravitated to Facebook just like everyone else. But local newspapers aren’t exactly known for being aggressive and creative about selling to the local hair salons, pizza restaurants and funeral homes, either. It can be done. Just ask Howard Owens, publisher of The Batavian in western New York state.

The partnership shows why I differentiate between Gannett and Alden Global Capital, even though their nuke-the-newsroom approach to the bottom line looks very much the same on the ground. Alden, by all appearances, is trying to squeeze as much money as it can out of the newspapers it’s killing and then get out. Gannett, on the other hand, is hoping to build a community news chain that can be sustainable in the long run.

Gannett’s biggest mistake, carried over from its predecessor company, GateHouse Media, is that its executives think they can build for the future while failing to provide enough journalism to retain readers. No matter how smart your business model, it’s not going to work if all you’re offering your audience is a shell.

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Facebook flexes its muscles, then claims it was all a mistake

Regardless of what really happened, this had the appearance of pure extortion.

In response to Australia’s new law requiring Google and Facebook to hold negotiations with news publishers aimed at compensating publishers for their content, Facebook took down not just news — which would be a proportionate response, I suppose — but all kinds of information.

The newly banned Facebook content comprises, as The Washington Post reports, “dozens of government and charity websites as well, including public health sites containing critical information about the pandemic during the first week of its coronavirus vaccine rollout.”

The information was restored about 12 hours later, and Facebook claimed it was all a mistake. Still, it was a powerful demonstration of what Mark Zuckerberg can do if you refuse to kiss the ring.

The standoff in Australia shows why Google needs news more than Facebook does

I’m hardly the first person to make this observation, but there’s a reason that Google is trying to accommodate Australian news publishers while Facebook is fighting them tooth and nail: Google needs news much more than Facebook does. The New York Times puts it this way:

Facebook and Google ultimately value news differently. Google’s mission statement has long been to organize the world’s information, an ambition that is not achievable without up-to-the-minute news. For Facebook, news is not as central. Instead, the company positions itself as a network of users coming together to share photos, political views, internet memes, videos — and, on occasion, news articles.

Writing at the Columbia Journalism Review, Mathew Ingram notes that news makes up only 5% of the content on Facebook’s News Feed, at least according to the company.

While I have no problem with publishers trying to extract some revenues from the two tech giants, I’m disheartened to see that Google is trying to buy its way out of trouble in Australia by cutting deals with the likes of Rupert Murdoch. This shouldn’t be a matter of buying off critics and then resuming business as usual.

That’s why I prefer an idea put forth by the tech analyst Benedict Evans in a conversation with Ingram: help fund news by taxing Google and Facebook. At least theoretically, that could lead to a more equitable distribution of revenues to large and small publishers alike.

Regardless of what the road ahead looks like, though, it’s clear that Facebook is going to be harder to deal with than Google. The Zuckerborg just doesn’t need journalism as much.

Earlier:

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Microsoft’s president says Google and Facebook should pay for news content

Photo via Needpix.com

The Overton Window has opened a bit wider for the idea of requiring Google and Facebook to pay for news content. At Axios, Sara Fischer reports that Microsoft president Brad Smith has endorsed the Australian government’s move to do just that — and thinks such a system ought to be considered in the U.S. as well.

What’s taking place in Australia is complicated, but essentially it requires Google and Facebook to bargain with the news business and come up with a compensation system. Both companies have said they would stop offering some of their services if Australian authorities don’t back off.

In the U.S., the News Media Alliance, a lobbying group for news publishers, has been pushing for several years for an antitrust exemption that would allow them the right to bargain collectively with the tech giants — which is exactly what is going to happen in Australia. With the sheen wearing off Big Tech’s once-sterling image, the likelihood of Congress passing such an exemption has increased. A lawsuit brought by a group of West Virginia newspapers that I wrote about for GBH News last week may serve as a further goad.

In a blog post, Microsoft’s Smith cites a News Media Alliance study showing that Google makes an estimated $4.7 billion a year “from crawling and scraping news publishers’ content.” That study came under fire at the time of its release a couple of years ago. But regardless of the actual figure, Google — and Facebook — are surely making a lot of money from other people’s content without paying for any of it.

Smith makes no bones about his own business imperatives, saying that Microsoft is prepared to play by Australia’s rules through its Bing search engine, writing:

Microsoft’s Bing search service has less than 5% market share in Australia, substantially smaller than the 15-20% market share that we have across PC and mobile searches in the United States and the 10-15% share we have in Canada and the United Kingdom. But, with a realistic prospect of gaining usage share, we are confident we can build the service Australians want and need. And, unlike Google, if we can grow, we are prepared to sign up for the new law’s obligations, including sharing revenue as proposed with news organizations. The key would be to create a more competitive market, something the government can facilitate. But, as we made clear, we are comfortable running a high-quality search service at lower economic margins than Google and with more economic returns for the press.

A final thought. If Congress isn’t prepared to act, might it be possible to require Google and Facebook to compensate news publishers at the state level? Jack Nicas reports in today’s New York Times that a proposal has been made in North Dakota to forbid Apple and Google from collecting app-store fees from North Dakota-based businesses.

The legislation strikes me as more than a little half-baked. Yet the principle — that states can impose their own regulations on Big Tech — is one worth pondering.

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Google and Facebook have decimated newspaper ad revenues. A lawsuit aims to change that.

GBH News illustration by Brendan Lynch

Previously published at GBH News.

One afternoon in early 2016, I arrived at The Boston Globe’s former headquarters in Dorchester to talk with John Henry about the state of his newspaper. Before we could begin, though, he wanted to talk about something that was bugging him.

Google, it seemed, had started slapping the word “subscription” on Globe content when it came up in searches, even though few people were likely to run into what was then a relatively porous paywall. It took months to straighten out, he complained — costing the Globe readers and, therefore, advertising revenue.

Henry’s lament illustrates the complicated relationship publishers have long had with Google. On the one hand, they complain bitterly that the dominant search engine is repurposing their journalism without paying for it. On the other hand, they depend on the clicks that Google sends their way.

Now matters may be coming to a head.

Under pressure from the Australian government, Google and Facebook have agreed to start paying for the content they repackage, MediaPost reports.

In the U.S., the News Media Alliance, which represents newspaper publishers, has long sought an exemption from antitrust law so that they could attempt to negotiate a compensation package with the two companies. There are signs that Congress may finally pass legislation to let them try.

And now, a chain of newspapers in West Virginia has filed a lawsuit charging that Google and Facebook violated antitrust laws by forming an alliance aimed at perpetuating their monopoly on digital advertising.

In order to understand exactly what the two companies — especially Google — have done to harm the news business, you need to consider two different but related practices.

First there is the matter of grabbing content, which, as Henry’s complaint shows, is convoluted: Publishers can’t live with Google and can’t live without it. Years ago, before the Google-Facebook lockdown on ad revenue was even on the horizon, publishers would argue that Google should pay them. Google would counter that it was driving traffic to news sites, thus increasing the value of advertising on those sites. There was some logic to Google’s argument, though somehow it never worked out in favor of the publishers.

The problem in recent years is that Google acquired a number of advertising businesses and now controls not just search but also the advertising associated with search. Through the use of an automated auction system, the price of digital ads is being driven ever lower, making it all but worthless. As Nicco Mele, a former deputy publisher of the Los Angeles Times, explained several years ago, a full-page weekday ad in the paper that cost $50,000 had given way to Google ads on its website that brought in less than $20 to reach the same number of readers.

“To a large extent, Facebook and Google are sucking up revenue that publishers of content should be receiving,” Mele told an audience at Harvard.

It’s the ever-shrinking value of digital advertising that’s being targeted in the West Virginia lawsuit, brought by HD Media. The small chain owns seven newspapers, most notably the Charleston Gazette-Mail and The Herald-Dispatch of Huntington. Paul Farrell, the lawyer who represents the papers, told the trade magazine Editor & Publisher that Google is leveraging its control of two entirely different businesses in order to monopolize ad revenues and squeeze out anyone else.

“They have completely monetized and commercialized their search engine, and what they’ve also done is create an advertising marketplace in which they represent and profit from the buyers and the sellers, while also owning the exchange,” Farrell was quoted as saying. “Google is the broker for the buyer and gets a commission. Google is the broker for the seller and gets a commission. Google owns, operates and sets the rules for the ad exchange. And they are also in the market themselves.”

So where does Facebook fit in? According to a lawsuit filed by several state attorneys general that was reported by The Wall Street Journal, Google and Facebook are colluding through an agreement that Google has code-named Jedi Blue. The AGs contend that Google provides Facebook with special considerations so that Facebook won’t set up a competing ad network. (Google and Facebook have denied any wrongdoing, and, in the E&P story, Google reiterated that stance with regard to the HD Media suit.)

For Google, it’s a perfect closed environment: It holds a near-monopoly on search and the programmatic advertising system through which most ads show up on news websites. And it has an agreement with Facebook aimed at staving off competition.

As Washington Post media columnist Margaret Sullivan observed, the collapse of advertising is what has led to the closure of more than 2,000 newspapers over the past 16 years — as well as the shrinkage of surviving papers like the Gazette-Mail, which won a Pulitzer Prize for its coverage of the opioid crisis in 2017.

Back when newspapers were manufactured out of dead trees, advertising was responsible for about 80% of revenue. Once they started moving online, that revenue stream was decimated, first by Craigslist, a mostly free service that scooped up nearly all the classified ads, and then by Google and Facebook.

Ironically, Craigslist founder Craig Newmark today directs much of his considerable philanthropy to the news business, and Google and Facebook spend quite a bit on various journalism initiatives as well. But whereas Newmark’s only sin was to build a better mousetrap, Google and Facebook’s dominance has more in common with the robber barons of the Gilded Age. It’s time that someone brought them to heel.

At least some newspapers have come up with a formula for overcoming the digital-advertising debacle. The New York Times, The Washington Post, The Wall Street Journal and, yes, John Henry’s Boston Globe have all reinvented themselves as successful enterprises by reducing their reliance on ads in favor of digital subscriptions.

But it’s far from clear whether that will work for local and most regional papers, and even those that are doing well run the risk of becoming overreliant on one source. A reliable stream of ad revenue, freed from the depredations of Big Tech, would go a long way toward revitalizing journalism.