"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Viewpoint Diversity Rules as to Students

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 my argument about why viewpoint diversity requirements are likely to chill controversial faculty speech here; here is a brief follow-up section as to the problems with imposing such requirements as to students:

[E.] Viewpoint Diversity Rules as to Students

The Administration's letter to Harvard also calls on "audit[ing] the student body" and not just the faculty. But the problem of people being encouraged to misreport their political beliefs is likely to be even more severe with regard to the auditing of students. For college students, any such audit is likely to be based entirely on self-reporting, since most students will have little history of party registration, even less history of political donation, no formal publication record of the sort that academics have, and (again, for most students) little politically minded social media commentary.

Yet if universities try to achieve viewpoint diversity by asking would-be students their political beliefs when they are applying, many students will likely claim beliefs that they see as likely to increase their chance of admission (e.g., by claiming to be conservative or centrist when they think they'll be penalized for being liberal, or claiming to be liberal or centrist when they think they'll be penalized for being conservative). This is especially so since this would generally be a very safe lie. The terms are vague enough that it will be hard to prove that people were misdescribing themselves. And even if, after they come to college, students become activists on a side contrary to the one they claimed, they can always just say that they've changed their minds. Indeed, the terms are vague enough that students can even persuade themselves that they are telling the truth. "No, really, I'm not that liberal—I'd say I'm more of a moderate" is an easy story to tell yourself once you learn that calling yourself a liberal would decrease your chances of admission.

To be sure, universities might measure their students' viewpoint diversity by asking students their political beliefs when they are already in school. But then to cure any lack of viewpoint diversity, they would still have to ask future applicants for their views, and risk the strategic responses that I describe above. And even the current students might feel an incentive to respond inaccurately: After all, if left-wing (or right-wing) activist students realize that so labeling themselves will increase the university's pressure to admit students from the other side for ideological balance, those students might well conclude that it's better to mischaracterize their positions in the viewpoint diversity survey.

Comments

[John F. Carr]

The Students for Socialism chapter will have to rename itself Students for Sensible Economic Policy to avoid outing its members.

[ducksalad]

I understand that Professor Volokh is concerned with more than just the First Amendment, here he is more focused on the practical matter of whether fairness doctrines may backfire. But there are reminders here of why the "marketplace of ideas" is poor model for First Amendment analysis.

First, the marketplace analogy deflects things into irrelevant (or should be irrelevant) discussion of why markets are good: efficiency, innovation, diversity of options, inherent tendency toward an optimum price. But what we are guaranteed by the Constitution is freedom of speech. Not efficiency of speech, or originality of speech, or diversity of speech, or cost effective speech.

Second, only a committed libertarian automatically associates marketplaces with laissez-faire principles. The entire rest of the political spectrum sees a marketplace and thinks .... we need to protect local products from outside competition, we need anti-trust, we need mandatory collective bargaining, we need to ban insider trading, we need to inject money at certain times, etc. And most of all, many people believe deeply in the concept of market failure and the need for government to correct such failures. And often they define failure as any outcome they don't like. The bottom line is that the marketplace analogy really does not lead automatically to a robust commitment to freedom of speech.

The better focus is the "shall make no law" approach. Is the government concerning itself with anyone's speech? Then we start with "No", speech is not their concern. Not to make it better, not to make it fairer, not to make it more efficient, not to create or facilitate a market, not anything except leaving it alone. The government should go work on.... something else. That should be the starting point when negotiating any proposal for some new policy.

What if there's some important thing the government wants to discuss? They have their own speech, and they can fund their own speakers. An analogy: if the Air Force thinks not enough work is being done on scandium alloys, they can, without violating anyone's rights, pay people to do research on scandium alloys. They *don't* need to say that all universities must study every element in the chart in some effort to attain chemical diversity.

Likewise, if a conservative leaning administration thinks there is not enough pro-capitalist research going on, I don't think it would offend the First Amendment for them to preferentially seek out and contract with researchers and writers to study and promote the advantages of capitalism. Without enforcing any kind of balance requirement on everyone.

[Jack Jordan]

ducksalad, you're correct that the "marketplace of ideas" is an extremely "poor model for First Amendment analysis." It makes as little sense as thinking that the reason that people have money is to support a literal marketplace. We have speech and money to support our liberty, and we generally are sovereigns over our own speech and money.

Our freedom of speech is a function of our sovereignty over ourselves and over our public servants. Montesquieu might have been the first to state this principle this way.

In The Federalist No. 47, James Madison emphasized that “[t]he oracle who is always consulted and cited on this subject” (“the preservation of liberty” by ensuring various sources of “power” are “separate and distinct”) “is the celebrated Montesquieu.”

The first and most important separation of powers is between the sovereign people and all our public servants. See, e.g., the dissenting opinion in Alden v. Maine, 527 U. S. 706 (1999) discussing some of the relevant statements in Chisholm v. Georgia (1793) by Chief Justice John Jay, Justice James Wilson and Edmund Randolph. Simply put, our freedom of speech (including our right to vote) is a vital aspect of the sovereignty of the people.

In The Spirit of the Laws, Montesquieu emphasized the following related principles:

"In a democracy the people are in some respects the sovereign, and in others the subject" (of the laws).

Citizens "exercise of sovereignty" is most clearly "by their suffrages, which [is an expression of] their own will: [by voting and other freedom of expression] the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage, are fundamental to this government" so it is "important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given."

"The freedom of every citizen constitutes a part of the public liberty; and, in a democratical state, is even a part of the sovereignty [of the people]."

"[T]he enjoyment of liberty, and even its support and preservation, consists in every man’s being allowed to speak his thoughts and to lay open his sentiments."

[y81]

As usual with the Trump administration, this plan is poorly conceived and shows signs of being written by someone who just isn't very bright.

[Jack Jordan]

The First Amendment was written to be construed very liberally, so it used mere idiomatic expressions (freedom of speech, freedom of the press, right to petition, right to assemble). As a result, the admonition of Chief Justice Marshall and SCOTUS in McCulloch v. Maryland is highly relevant here: "we must never forget, that it is a constitution we are expounding." He did not mean constitution as a document. He meant constitution as an action, i.e., constituting (creating) one nation of one people.

Chief Justice Marshall and SCOTUS also elaborated on the most important principles of our national Constitution documenting the constitution of our nation:

"The government of the Union [ ] is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and [exclusively] for their benefit. This [national] government is acknowledged by all to be one of enumerated [limited] powers. [ I]t can exercise only the powers granted to it . . . . . That principle is now universally admitted."

The foregoing addresses principles that are profoundly fundamental and dispositive. In our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). “Speech is an essential mechanism of democracy;” it is “the means to hold officials accountable to the people.” Id.

Voting is a particular kind of political speech by which citizens hold elected representatives accountable. Citizens vote to approve, disapprove or even remove elected representatives.

We hold elected and unelected representatives accountable with speech in court filings. Speech in many court filings (e.g., motions to reconsider a ruling or recuse a judge or appeal judicial violations of law) necessarily is the means prescribed by courts and Congress to hold judges accountable to the people. So is speech regarding impeachment of judges.

Citizens have the right, power and duty to hold elected and unelected representatives accountable by means of public discussion regarding purported public servants and their purported public service. Such speech includes calls for impeachment and removal of officers of the executive and judicial branches of federal government. Such speech includes the criticism and other comments by students and faculty of universities regarding public servants' public service (including purported policy choices).

“The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government and a necessary means to protect it.” Id. Accord id. at 339-341, 344-350. Such “enlightened self-government” and attempts “to protect it” are precisely the point of voting, campaigning, public discourse regarding public people and public measures and court filings (lawsuits against government, as well as, e.g., motions to reconsider a ruling or recuse a judge or appeals of judicial violations of law). “Premised on mistrust of [all] governmental power, the First Amendment stands against attempts to disfavor” the “subjects or viewpoints” of such speech regarding our purported public servants' purported public service, including their policies or doctrines or their actual or perceived abuses or usurpations of power. Id. at 340.

“For these reasons,” all such “political speech must prevail against” regulation “that would suppress it, whether by design or inadvertence,” so regulation “that burden[s any such] political speech” is “subject to strict scrutiny,” which “requires the Government to prove” how enforcing so-called viewpoint diversity “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id.

Our “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)) (cleaned up). See also Snyder at 453 (discussing when “[s]peech deals with matters of public concern”).

Our public servants “may not prohibit” any “modes of expression and association protected by the First and Fourteenth Amendments” by merely invoking the mere general “power to regulate the legal profession.” NAACP v. Button, 371 U.S. U.S. 415, 428-429 (1963). They even more clearly may not do so by presuming or pretending to have the power to regulate political or religious viewpoints of students or faculty at our institutions of higher learning (or as federal judges did last year and POTUS did this year) usurp the power to punish students, faculty or universitites for merely associating with other people who express particular political or religious viewpoints.

Our public servants “may not, under the [mere] guise of prohibiting professional misconduct, ignore” (knowingly violate) “constitutional rights” of lawyers, litigants, students or faculty. Id. at 439. Clearly, “it is no answer” to “constitutional claims” that the mere “purpose of” any “regulations” (including judges' letters or court rules or rulings or executive orders) “was merely to insure high professional standards.” Id. at 438-439.