The Volokh Conspiracy
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"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Conclusion
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've serialized 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 is my Conclusion.
At many times in American history, the government has sought to promote the spread of ideas in various ways and to remove what it saw as interference with the spread of ideas. Early examples included the post office's lower rates for distributing newspapers and common carrier requirements for telegraph companies. Later, many state governments acted to protect private employees' political activity from retaliation by employers.
Some state and local governments have required private shopping malls to allow leafletters and signature gatherers, or barred landlords or places of public accommodation from excluding people based on their political activity. Federal, state, and local governments also often provide some sort of public funding for election campaigns. The availability of tax exemptions to nonprofit advocacy groups (at least ones that don't engage in electioneering or substantial amounts of lobbying) likewise helps promote "the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society." The candidate equal time rule—"[i]f any licensee shall permit … a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office"—survived the death of the Fairness Doctrine.
Either at the outset or eventually, these rules ended up being imposed in viewpoint-neutral ways. They are likely constitutional precisely because of their viewpoint neutrality, whatever dispute there might be as to their merits.
But at times, the government has also tried to impose not viewpoint neutrality requirements, but viewpoint diversity requirements (especially where viewpoint neutrality requirements would be infeasible). It is trying to do so now as to university funding conditions. And the most prominent earlier instance was the Fairness Doctrine.
The Fairness Doctrine, despite having been upheld in Red Lion, is now widely seen as a misstep. Indeed, it has especially (though not exclusively) been seen that way by conservatives, as is visible in the debates about the 1987 repeal and in later opinions by conservative Justices (especially Justice Thomas). The Doctrine tended to chill the expression of unorthodox viewpoints. In its enforcement, it necessarily ended up protecting mainstream viewpoints rather than outlier viewpoints. And it made it easier for government officials to pressure broadcasters to avoid expressing viewpoints that the officials dislike.
This Essay has argued that these flaws of the Fairness Doctrine are likely to be present in the new university viewpoint diversity funding conditions. Those who share the skepticism of the Fairness Doctrine and believe that its attempt to promote viewpoint diversity actually undermined viewpoint diversity, ought to take the same viewpoint as to the university funding conditions as well.
