"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Chilling Effect on Controversial Faculty Speech

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine 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. You can see the opening sections  drawing the Fairness Doctrine / viewpoint diversity requirements analogy here; here is a section that explains how one of the problems with the Fairness Doctrine is likely to also arise with viewpoint diversity requirements.

[V.] Chilling Effect on Controversial Faculty Speech and on the Hiring of Controversial Faculty

[A.] The Fairness Doctrine

Yet just as Red Lion offers some support for ideological diversity conditions on government funding, so the critiques of the Fairness Doctrine apply to ideological diversity conditions as well.

To begin with, the Fairness Doctrine tended to deter broadcasters from featuring controversial speakers, because having such speakers would require the broadcasters to provide free time to rivals. The Red Lion Court pooh-poohed that concern:

At this point, … that possibility is at best speculative. The communications industry, and in particular the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard….

[And] if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues….

But just five years later, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court rejected a Florida statute that provided a right of reply to political candidates who were criticized in a newspaper, and it did so partly on chilling effect grounds:

Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced.

That ruling did not directly invalidate the Fairness Doctrine, of course,  because the Court had concluded in Red Lion that broadcasters should be treated differently from newspapers under the First Amendment. But Miami Herald's reasoning did reinforce the view that, even if the chilling effect concerns are "speculative," such speculation could be plausible and legitimate. Later criticisms of the Fairness Doctrine—including the FCC's argument for finally jettisoning it in 1987—relied heavily on this chilling effect concern, as the quote in the Introduction illustrates. And subsequent empirical work linked the 1987 repeal of the Fairness Doctrine to an increase in informational programming—suggesting, perhaps, that the past chilling effect is no longer merely "speculative."

[B.] Viewpoint Diversity Rules and the Apolitical Safe Harbor Conjecture

Viewpoint diversity requirements at universities are likely to have much the same chilling effect—and one that would indeed be viewpoint-based because it would be focused on controversial viewpoints. Here too this is speculation, but it's likely correct speculation, given the foreseeable political environment in which the rules are likely to be enforced.

Let me start with what I call the Apolitical Safe Harbor Conjecture: government officials will rarely demand greater viewpoint diversity from universities where faculty members focus on the discipline rather than on politics. Imagine, for instance, an English literature department in which the faculty are just interested in English literature. They have viewpoints about Chaucer, Shakespeare, and Thackeray, but they say little about modern politics, in class or out. Or imagine a mathematics or chemistry department in which the faculty likewise focus on publicly uncontroversial (or maybe even publicly incomprehensible) features of their subject, rather than trying to draw controversial political connections between their views and, say, global warming or the disparate effects of chemical pollution on different communities.

Such a department is unlikely to draw concerns about viewpoint diversity, whether from government officials or political activists. If a university is required to proactively audit the department despite the lack of such concerns, it will presumably issue a report saying that the department is fundamentally apolitical. (Indeed, even a law school or a public policy department might avoid much scrutiny from those who worry about viewpoint diversity if its faculty keep a relatively low political profile—at least compared to similar departments at other universities—and tend to avoid the most controversial topics.)

To be sure, one could imagine a literal reading of "viewpoint diversity" under which such an apolitical department would be required to hire more ideologically vocal faculty. "Where are your vocal Marxists?" auditors might ask the apolitical English department. "Where are your vocal Objectivists?" "Where are your vocal adherents of left-wing or right-wing schools of literary criticism?" "Where," they might ask the Chemistry department, "are your advocates of a critical race theory approach to chemistry or chemistry education? You must hire more faculty like that."

But this literal reading seems practically unlikely. Among other things, if the department's faculty aren't seen as political in the first place, there is likely not to be much pressure to introduce ideological components into fields that many legislators, administrators, faculty, alumni, parents, and students might see as quite properly apolitical. Indeed, people who object to lack of viewpoint diversity also often object, for plausible reasons, to departments that are unduly "politicized." There would likely be little pressure to create more viewpoint diversity by deliberately politicizing departments that are currently apolitical.

One could also imagine a reading of viewpoint diversity under which the inquiry examines what the faculty believe deep down inside, regardless of whether their teaching or public commentary reflects that. For instance, one could review voter registration records or submit surveys asking faculty for their views on various political issues. {Beyond implicating the First Amendment rights of universities, such requirements might also implicate the First Amendment rights of professors. Hiring professors based on their party affiliation would usually be unconstitutional at a public university. The government pressuring private universities to hire professors based on their party affiliation would likewise generally be unconstitutional. Query whether the same would apply to party-balance hiring policies. }

But here too I expect that the government and activists would place little pressure on a university where the faculty appear middle-of-the-road. For example, if 60% of the chemistry faculty are registered independent and offer generally centrist answers to survey questions, 20% are moderate Democrats, and 20% are centrist Republicans, the department will likely be safe from having to substantially change its hiring practices. And if that's correct, prospective faculty will have plenty of reason to register as independents and to give centrist answers. After all, not being able to vote in a Democratic or Republican primary—or in a Green or Libertarian primary—involves little tangible loss, while becoming more employable by controversy-averse departments involves great tangible gain. {Indeed, in states that have open primaries, voters might not have to register as party members at all.}

Finally, one could imagine another literal reading of "viewpoint diversity" under which the government would evaluate the department based on its diversity of intra-disciplinary viewpoints. Under this reading, the English department would need to have a mix of different views about how to interpret texts or how to evaluate aesthetic qualities. There would need to be a mix of people who believe that poetry is best when rhymed and metered, and those who instead favor blank verse. Likewise, physics departments might need to have a mix of people with different views on the implications of quantum theory. Medical schools might need to have a mix of people with different views on the best ways to treat or prevent cancer or heart disease. This might be a sensible idea in principle, at least to some degree. Indeed, some departments probably already try to have some such mix of intra-disciplinary viewpoints.

But again, it's fairly unlikely that there will be much government or public pressure for departments to insist on this as a primary hiring criterion. Many legislators and government officials might not even know the main intra-disciplinary rifts in various fields. And there will be considerable internal pressure for departments not to focus unduly on such intradisciplinary viewpoint diversity, given that there are so many other hiring criteria that might be necessary. A department might, for instance, reasonably insist more on a mix of subject matters than viewpoints, and within each subject (e.g., 20th-century English-language poetry) a small department might only have one hiring slot available. As a result, "viewpoint diversity" is likely to focus on political views and not on intradisciplinary views.

[C.] The Risk Posed by Faculty with Controversial Views

If having relatively apolitical faculty offers departments a safe harbor, then hiring faculty who are known to have more controversial views would jeopardize that safe harbor. Say a department has 20 tenured faculty who don't have any prominent political profile. (Most faculty members in most departments are indeed apolitical, at least in their professional lives.) Two retire, and the department has to decide among a pool of replacements, some of whom are likewise apolitical, but others are publicly known to be left-wing, whether based on their scholarship, their public commentary, or both.

The department will likely feel some pressure to avoid hiring the visibly political candidates. Once it starts having prominent left-wing faculty, it will start to draw attention from critics who ask, "Where are the right-wing faculty to provide viewpoint diversity?" The presence of many non-left-wing apolitical faculty is unlikely to be much protection: Because the apolitical faculty are less noticeable in such debates than the political ones, a department can get a reputation as being highly skewed even from just a few controversial hires.

Now this wouldn't be the end of the world, of course: The department could respond to critics by assuring them that it will then add some right-wing hires to provide diversity. But the important thing is that—if my Apolitical Safe Harbor Conjecture is correct—hiring prominently ideological faculty would cause trouble for the university: It would draw unwanted attention from government officials, and it would constrain future hiring—something no department likes. (After all, there might be only a small pool of hires with the suitably balancing viewpoints available, and they might not fit well with the department's curricular needs.)

To be sure, the hypothetical department of 18 apolitical faculty and two left-wingers is actually more viewpoint-diverse than that of the 20 apolitical faculty (even if a department with 10 apolitical faculty and 10 with a broad range of political views would be even more viewpoint-diverse). But, for the reasons discussed in the previous subpart, the department with all apolitical faculty is going to draw many fewer objections of lack of viewpoint diversity. To borrow from the FCC's criticism of the Fairness Doctrine, "instead of promoting access to diverse opinions on controversial issues of public importance, the actual effect of the doctrine is to 'overall lessen[] the flow of diverse viewpoints to the public.'"

Likewise, let's return to the 20-person department in which the faculty are apolitical in their professional lives. Say that five of them, motivated by some issue in the news that's related to their discipline, are considering publicly expressing themselves—for instance, in op-eds, congressional testimony, or a coauthored paper. That has long been understood as a proper role of university faculty: to apply their expertise to the problems facing their community, the nation, and the world, and to offer that application to the public.

But say they're aware that their views are going to be politically controversial and will cause them to be publicly labeled as "left-wing" or "right-wing." For example, some of the chemistry department faculty are considering speaking out on matters related to global warming, "environmental justice," or the need for controversial international treaties to deal with acid rain or fossil fuel use. They—and their Dean or University President—will realize that this expression will start to draw attention to their department, and that it may produce questions about whether the department is ideologically skewed and thus in need of more viewpoint diversity. The foreseeable result is that the professors will be reluctant to express controversial views, whether because of pressure from supervisors or because of their own worries about such political pushback. {And this chilling effect can remain even if the federal government takes a light hand in enforcing any viewpoint diversity mandates, for instance, by carefully screening public complaints and acting only on a few of the ones that it receives. See 1985 Fairness Report (likewise concluding that "there is a substantial danger that many broadcasters are inhibited from providing controversial issues of public importance by operation of the fairness doctrine," even if "the Commission requests broadcasters to respond to only a small number of the complaints it receives annually").}

Consider, by way of comparison, what the FCC said in 1987 in rejecting the Fairness Doctrine:

Each time a broadcaster presents what may be construed as a controversial issue of public importance, it runs the risk of a complaint being filed, resulting in litigation and penalties, including loss of license. This risk still exists even if a broadcaster has met its obligations by airing contrasting viewpoints, because the process necessarily involves a vague standard, the application and meaning of which is hard to predict….

[E]ven if [the broadcaster] intends to or believes that it has presented balanced coverage of a controversial issue, it may be inhibited by the expenses of being second-guessed by the government …. Further, in view of its dependence upon the goodwill of its audience, a licensee may seek to avoid the possible tarnish to its reputation that even an allegation that it violated the governmental policy of "balanced" programming could entail.

Furthermore, … the doctrine inherently provides incentives that are more favorable to the expression of orthodox and well-established opinion with respect to controversial issues than to less established viewpoints…. [Many of the broadcasters] who had been denied or threatened with the denial of renewal of their licenses on fairness grounds … [had] espoused provocative opinions that many found to be abhorrent and extreme, thereby increasing the probability that these broadcasters would be subject to fairness doctrine challenges.

Change a few of the words, and the analysis would apply much the same way to university viewpoint diversity requirements.