"Viewpoint Diversity" Requirements as a New Fairness Doctrine
I have this article forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. Here are the opening sections:
Introduction
The Trump Administration has been trying to attach "viewpoint diversity" mandates to federal funding, especially for universities. This Essay analyzes the parallels between these new proposals and a much older one: the Fairness Doctrine.
The arguments for both are similar, though of course not identical: The claim is that, when the government is
- distributing benefits—whether access to scarce spectrum, or scarce grants and other federal funds—
- it may attach viewpoint-neutral conditions that aim to
- make the benefits promote a wide range of opinion, rather than leaving it entirely to the beneficiary to choose which opinions it promotes.
"It is the purpose of the First Amendment," the theory goes, "to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee." Lawyers who want to argue in favor of the constitutionality of viewpoint diversity mandates may thus get some help from Red Lion Broadcasting v. FCC, which upheld the Fairness Doctrine against constitutional challenge.
But the arguments against the Fairness Doctrine—ultimately accepted by the Reagan Administration's FCC in 1987, when it rejected the Doctrine—are also powerful arguments against viewpoint diversity mandates. Both the Fairness Doctrine and viewpoint diversity mandates tend to deter the targeted institutions (whether broadcasters or universities) from allowing controversial speech, or hiring or admitting controversial speakers. And both, unlike nondiscrimination mandates, are inevitably viewpoint-discriminatory in application.
To quote the FCC's 1987 decision,
- "enforcement of the [Fairness] doctrine acts to inhibit the expression of unpopular opinion";
- "it places the government in the intrusive role of scrutinizing program content";
- "it creates the opportunity for abuse for partisan political purposes"; and
- "it imposes unnecessary costs upon both broadcasters and the Commission."
Much the same, I will argue below, is likely to be true of government-imposed viewpoint diversity mandates. If one agrees with the 1987 FCC that the Fairness Doctrine violates the First Amendment, one should say the same of the viewpoint diversity mandates. And even if one believes that Red Lion was correct in upholding the Fairness Doctrine, but agrees with the FCC that the result undermined the marketplace of ideas more than promoting it, one should take the same view of the viewpoint diversity mandates.
In what follows, I will begin (Parts I–IV) by laying out the Fairness Doctrine and proposed university viewpoint diversity mandates, and noting the analogies between how the Doctrine and the mandates have been justified. I will then discuss in Parts V–VIII how some of the problems created by the Fairness Doctrine, which ultimately led to its repeal, are likely to similarly plague the university mandates. Finally, Parts IX–X will discuss the limits of the analogy, and note how viewpoint nondiscrimination rules as well as narrow viewpoint diversity conditions on specific funding programs may avoid some of those problems.
[I.] The Fairness Doctrine and Red Lion Broadcasting
The Fairness Doctrine was part of American broadcasting law from 1938 to 1987, when it was abolished by the FCC. In essence, the Doctrine required "that broadcasters, while permitted to editorialize, must seek a reasonably balanced presentation of all viewpoints on public issues of controversial importance." Modern law would recognize this as
- a speech compulsion, since broadcasters had to carry speech they would rather not, and
- a content-based burden on the broadcasters' speech, since including "controversial" messages would trigger an obligation to supply speech that would "balance[]" those messages.
But in Red Lion, the Court upheld this mandate. The Court stressed that broadcasters were able to broadcast because they enjoyed a tremendous advantage—a government-supplied license, which the overwhelming majority of would-be speakers lacked. Broadcasters had "no constitutional right" to such a license in the first place: They got the license because the government chose to provide it.
And when the government provided this benefit, it could require that the beneficiary "share [the benefit] with others":
There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
This might reduce the speech opportunities of broadcasters, but it would serve public discussion more broadly:
[T]he Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium…. It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee…. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.
And such government-imposed requirements, the argument went, would properly prevent "station owners and a few networks" from having "unfettered power … to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed":
There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests."
Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions.
[II.] Calls for Viewpoint Diversity in Universities
Now let us consider the Trump Administration's April 2025 demand to Harvard, sought as a condition of Harvard continuing to get federal funds:
By August 2025, the University shall commission an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse….
Harvard must abolish all criteria, preferences, and practices, whether mandatory or optional, throughout its admissions and hiring practices, that function as ideological litmus tests. Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity; every teaching unit found to lack viewpoint diversity must be reformed by admitting a critical mass of students who will provide viewpoint diversity.
The Administration's October 2025 proposed "Compact for Academic Excellence in Higher Education" also calls for universities to promote a "broad spectrum of ideological viewpoints." The Compact states, in relevant part, that funding recipients must "commit themselves" to "fostering a vibrant marketplace of ideas on campus," to engaging in a "rigorous, good faith, empirical assessment of a broad spectrum of viewpoints among faculty, students, and staff at all levels," to "sharing the results of such assessments with the public," and to "seek[ing] such a broad spectrum of viewpoints not just in the university as a whole, but within every field, department, school, and teaching unit." It also states that "A vibrant marketplace of ideas requires an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant, both along political and other relevant lines."
It remains to be seen whether the Compact proposal demands enforceable viewpoint diversity mandates, or whether it sets forth viewpoint diversity as an aspirational goal, the way one might set "excellence," "openmindedness," "fairness," and the like as aspirational goals. But the April 2025 letter suggests that the Administration may insist that the viewpoint diversity mandate would be seen as enforceable and not just aspirational.
To be sure, conditions on government funding must generally be viewpoint-neutral, at least where—as with the bulk of federal money that indirectly goes to universities—they are aimed at promoting a diversity of private views (rather than a programmatic governmental message). Even when it comes to government funding,
Viewpoint discrimination is … an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.
Although acknowledging that the Government is not required to subsidize the exercise of fundamental rights, … we [have] reaffirmed the requirement of viewpoint neutrality in the Government's provision of financial benefits.
This requirement of governmental viewpoint neutrality is especially strong when it comes to universities: Viewpoint-based rules involve governmental examination and classification of ideas, which would lead to a "corollary" "danger … to speech from the chilling of individual thought and expression," a "danger [that] is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." But presumably the argument in favor of viewpoint diversity requirements would be that they do not prefer particular viewpoints.
[III.] The Common Links
So far, we can see close analogies between the arguments in favor of the Fairness Doctrine and proposed viewpoint diversity mandates attached to government funding for universities (or other institutions):
- The government is providing a tremendously valuable underlying benefit, whether a broadcast license or massive funding.
- This benefit gives the beneficiary much greater power to speak: It allows broadcasters to speak via the airwaves or promotes universities' speech via their faculty members (in classrooms and outside them).
- The government argues that it wants to ensure that "views and voices which are representative of [the] community" would not "be barred" from the airwaves or the university.
- The government promotes this diversity to increase opportunities to speak, and not just to prevent situations where some voices are completely barred altogether from all opportunities to speak: The Fairness Doctrine required each broadcast station to provide balanced coverage, regardless of whether other stations in the same market offer a rival voice. The Doctrine also aimed to provide such balance as "to all discussions of issues of importance to the public" and not just on a few. University viewpoint diversity views would likewise apply to each department and presumably would require diversity on many issues.
- The government argues that it is acting "to preserve an uninhibited market-place of ideas" and to prevent "monopolization of that market," including by "private" recipients of government benefits, and more broadly to avoid "unlimited private censorship operating in a medium not open to all."
To be sure, Red Lion discussed "the scarcity of radio frequencies." That scarcity created the need for licensing, so as to prevent "the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished." Broadcast licensees also received not just billions of dollars in grants, but rather the legal right to broadcast—a right that nonlicensees entirely lacked. One might thus distinguish Red Lion as applying only in situations where the government is indeed creating a legal "monopolization" of at least particular frequencies, and thus making the medium "not [be] open to all."
Indeed, the Court has largely cabined Red Lion to the specific context of over-the-air radio and television broadcasting, and some Justices have cast doubt on it even there. Red Lion thus wouldn't be an entirely solid precedent for supporters of ideological diversity conditions to rely on.
This having been said, it's probably the strongest such precedent, and the similarities are more significant than the differences. First, in both situations, the government gives institutions massive benefits, which give the beneficiaries vastly greater access to listeners, viewers, faculty, and students. Someone who lacks a broadcast license can still try to reach an audience through, say, leafletting or organizing public speeches, but those options will be much less effective at reaching a mass audience. Likewise, a university that doesn't receive federal funds can still try to attract faculty and students, but that will be much harder to do.
Second, in both situations, the government's goal is to make sure that those benefits don't unduly skew the "market-place of ideas" in favor of the views favored by the beneficiary's operators. Indeed, scarcity of spectrum slots is a close cousin of the limited availability of federal grants, which are often distributed on a highly competitive basis, and which disproportionately go to elite institutions. Just as "100 persons [may] want broadcast licenses [when] there are only 10 frequencies to allocate, so 100 universities may want federal grants when there is only funding for 10 grants to go around.
Defenders of the viewpoint diversity requirements can argue that when the government is distributing taxpayer funds this way, it is entitled to try to make sure that the funds end up promoting a "widest possible dissemination of information from diverse and antagonistic sources." "[T]he First Amendment," Red Lion reasoned, "confers no right on licensees … to an unconditional monopoly of a scarce resource which the Government has denied others the right to use." "It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern."
Likewise, the argument would go, the First Amendment confers no right on universities to channel scarce government-provided funds—which the Government denies to many other grant applicants—into promoting a narrow range of university-preferred views. And "[i]t does not violate the First Amendment to treat [universities] given the privilege of using scarce [federal grants] as proxies for the entire community, obligated to [promote a diversity of views on] matters of great public concern."
Finally, the government may also assert a non-scarcity-related rationale for a viewpoint diversity mandate as well: Because the government is spending funds, it can attach conditions that aim to ensure that the funds are spent productively. And it seems at least plausible that a university department that has more viewpoint diversity would, all else being equal, produce better research and teaching, by reducing the dangers of echo chambers and other forms of groupthink.