The Volokh Conspiracy
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"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Tool for Goverment Control, and Magnitude of Bias
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 follow-up section on why such requirements are likely to also be a dangerous tool for government control, and a section discussing the argument that they are nonetheless necessary because of the magnitude of bias within the academy.
[VII.] Tool for Government Control
So far, we have discussed the likely viewpoint-based chilling effect of viewpoint diversity rules and their likely viewpoint-based implementation by government officials—much as with the Fairness Doctrine—even when the officials are acting in perfect good faith. Even officials who are trying hard to be fair-minded and open-minded will have to choose between viewpoints that need to be represented and those that need to be omitted.
But of course, human nature being what it is, some officials won't be so fair-minded and open-minded. That too was one of the objections raised to the Fairness Doctrine: "[T]he fairness doctrine provides a dangerous vehicle—which had been exercised in the past by unscrupulous officials—for the intimidation of broadcasters who criticize governmental policy." And this too is likely to play out with regard to viewpoint diversity mandates, especially in light of "the inherently subjective evaluation of program content" that viewpoint diversity mandates are likely to involve.
Say that some prominent faculty members in a university department speak out against some federal government policy. It would be easy for the government to respond by calling for a viewpoint diversity audit of the department. "Where," the government might ask, "are the members of the department who support the challenged government policy?"
Perhaps there legitimately aren't any such members because the policy is genuinely unwise, and even a balanced department would lack faculty who support it. Or perhaps the department is in general quite diverse in its viewpoints, but the particular people who have expertise on this particular policy all happen to have the same view about it. Or perhaps even the critics of the policy have in most instances presented a diversity of views on the subject—for instance, by fairly presenting those views in their classes—but the publicly visible statement shows a homogeneity of perspectives.
Nonetheless, the department—or maybe even the whole university—will face a government investigation. Even if the investigation finds no violation of a viewpoint diversity mandate, it will have been expensive and time-consuming. To borrow from the FCC, "even if the broadcaster has, in fact, presented contrasting viewpoints, the government, at the request of a complainant, may nevertheless question the broadcaster's presentation, which in and of itself is a penalty." And as soon as the investigation is announced (regardless of what its ultimate outcome might eventually be), the message will go out to other faculty at other universities: Don't expose your universities and yourselves to the risk of being similarly targeted. Echoing D.C. Circuit Chief Judge David Bazelon's statement about the effect of the Fairness Doctrine, universities "would be forced to kowtow to the wishes of an incumbent politician."
Justice Stewart wrote, with regard to broadcasting,
Those who wrote our First Amendment put their faith in the proposition that a free press is indispensable to a free society. They believed that "fairness" was far too fragile to be left for a government bureaucracy to accomplish.
Similarly, Justice White wrote as to newspapers,
Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues. But the balance struck by the First Amendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints may not be expressed…. Any other accommodation—any other system that would supplant private control of the press with the heavy hand of government intrusion—would make the government the censor of what the people may read and know.
The same is generally true of viewpoint diversity requirements, at least as applied to conditions on general university funding.
[VIII.] Magnitude of Bias
The FCC's repeal of the Fairness Doctrine relied partly on the conclusion that the "explosive growth in both the number and types of outlets providing information to the public"—both broadcasters and the then-newly developed cable television programmers—has "allayed … the Supreme Court's apparent concern that listeners and viewers have access to diverse sources of information."
Supporters of viewpoint diversity mandates might argue that this isn't so in many universities. Here's how the argument might go: Within many university departments, faculty are overwhelmingly on the Left. Whatever diversity benefits may have been provided as to audio and video media in the 1980s by technological developments and the market, no such forces are creating a similar diversity of views within Harvard or Yale. Indeed, hiring within a university tends to lack market pressures; and because new faculty are hired by the old faculty, a department's ideological tilt is thus perpetuated or even exacerbated. {If a department is split 75%–25% in one ideological decision, then the 75% might prevail in every hiring decision, so as faculty retire or leave and are replaced by new hires, the tilt may become closer to 100%–0%.}
Even if viewpoint neutrality mandates necessarily lead to some viewpoint-based chilling effects and governmental preferences for certain viewpoints, that is justified by the need to break the ideological monopoly. First Amendment doctrine shouldn't be read as precluding this necessary corrective to the existing ideological tilt. And because it is important that students at each university be exposed to a wide range of views, it's not enough that some conservative or ideologically balanced universities exist. The government can insist that the taxpayers' investment in education be distributed in a way that maximizes the chances that all students get access to viewpoint diversity.
This, I think, has to be the argument that backers of viewpoint diversity conditions must make. But it is insufficient to justify the constitutional perils outlined in Parts V–VII. In fact, students at universities today have access to a vast range of material—books, newsletters, news sites, audio podcasts, videos, online courses, and more. That material expresses a vast range of views, and includes material by prominent academics of all ideological stripes.
To be sure, those students who choose to go to certain universities may disproportionately hear particular views in those universities' classrooms. But that is just a consequence of the freedom of speech and academic freedom that the First Amendment protects. Trying to solve this problem by placing government officials in a position to supervise which viewpoints need to be better represented—which, for the reasons given above, is an inevitable feature of a viewpoint diversity mandate—is likely to do more harm than good to freedom of discourse.
But in any event, whatever one's opinion on this particular value judgment, I hope this Essay has established a descriptive (or at least a predictive) matter: A viewpoint diversity mandate will indeed involve viewpoint discrimination in implementation, will indeed chill viewpoints that are unpopular or seen as outside the mainstream, and will indeed provide a tool for government control of faculty viewpoints.
