The Volokh Conspiracy
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"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Permissible Options
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. Earlier posts have largely criticized such viewpoint diversity requirements, by analogy to criticisms of the Fairness Doctrine. Here are two sections discussing possible permissible options related to viewpoint diversity and nondiscrimination, plus the Conclusion.
[IX.] The Permissible Scope of Viewpoint Diversity Mandates: Support for Specific Messages or Programs That the Government Is Promoting
So far, I have argued that viewpoint diversity mandates are inevitably viewpoint-based, and that therefore, the government can't attach them as conditions to general funding aimed at promoting accessibility of universities to students (e.g., student loans) or at funding universities' or faculty members' own research projects.
But of course, when the government is aiming to promote particular messages, it can indeed favor some viewpoints over others. As the Court noted in Rust v. Sullivan,
When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.
Likewise, Congress is free to provide a grant to the National Endowment for Democracy calling for it to fund pro-democracy programs in a way that supports "viewpoint diversity." That grant condition would presumably require the Endowment to support a wide range of different viewpoints on how best to promote democracy: Perhaps the Endowment would need to make sure that grants go towards projects that promote presidential democracy systems as well as parliamentary ones, towards projects that accept local views on what is democratic enough, or towards projects that call for adopting supposedly universal human rights principles.
Yet the grant condition wouldn't be read as requiring true viewpoint neutrality. The programs could all still support democracy and not communism or fascism. Likewise, the programs could focus on more mainstream approaches to democracy promotion rather than ones that are seen as too avant-garde or too unlikely to be accepted by the foreign governments, organizations, or societies that Congress is trying to influence.
The same would likely be so if the federal government attaches a condition to a particular grant for which it sees a particular sort of ideological balance as part of the message that it seeks to promote. In this respect, such funding conditions are similar to what university departments, including public university departments, routinely do in organizing conferences. A law school may well allot funds to faculty to put on a conference on, say, recent Supreme Court cases, but with the condition that each panel have "viewpoint diversity." Presumably, that would mean that a panel on a particular case should probably have at least one person who supports the majority's position and at least one person who opposes it. Each panel should probably have at least one person loosely from the ideological Right (which may mean different things for different cases) and at least one person loosely from the ideological Left. {A typical conference would likely not have these as rigid requirements for each portion of the program, even if the Dean stresses that the program should have viewpoint diversity. Among other things, the program may well have one keynote address from one speaker, who would be free to express his or her own views and not the contrary views. But a Dean may well ask for such viewpoint diversity, and expect it to be present in general even if not in each separate part of the program.}
This sort of viewpoint diversity requirement would, as argued above, necessarily involve some viewpoint discrimination. Not every possible view on each case could be represented, and the organizers may well favor mainstream views over ones that they see as too ideologically extreme.
This viewpoint discrimination is permissible because the conference as a whole is a form of government speech, albeit composed by the government from the speech of individual speakers. Even if the organizers don't endorse the particular view of each of the participants, they are creating a curated speech product by deliberately choosing whom to invite. That speech product is much like what a newspaper might do with its op-ed page, which may deliberately have a diversity of viewpoints—but limited to viewpoints that the editors see as mainstream, as especially insightful, or at least as being within the range of views that they see as plausible.
But this sort of flexibility for government speech extends only when the government is controlling a particular message that it is choosing to promote. As the Court explained in Rosenberger v. Rector, the government may "regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message":
In the same vein, in Rust v. Sullivan, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program…. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.
Yet "[i]t does not follow … that viewpoint-based restrictions are proper" when the government "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers." Rather, "viewpoint neutrality [is required] in the Government's provision of financial benefits" to private speakers.
And beyond this, as the Court recognized in Agency for Int'l Development v. Alliance for Open Society Int'l, the government may not leverage its control over a particular grant into control over the privately funded programs of the grantee:
[T]he relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself. The line is hardly clear, in part because the definition of a particular program can always be manipulated to subsume the challenged condition…. [But] Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.
Thus, the government may not attach viewpoint-based conditions that seek to control the makeup of university departments—including viewpoint diversity requirements for the departments—to general government benefits, such as student loan subsidies or to all government grants. But if, for instance, it wants to insist that particular grants for particular projects will be awarded only to, say, teams of four or more researchers that can show sufficient intradisciplinary "viewpoint diversity" within the team, it is free to do so.
[X.] Non-Discrimination Rules May Be Permissible Even Where Viewpoint Diversity Rules Are Not
I have criticized contractual requirements of ideological diversity, but these criticisms do not apply to contract conditions banning ideological discrimination if the government chooses to impose them.
To start with an analogy, rules mandating religious diversity would likely require religious discrimination in their implementation, partly by requiring subjective judgments about which sorts of religious diversity count. Such mandates may lead to people not being hired based on their religious beliefs if there are too many professors of the same religion already on the job.
The mandates will also require intrusive and subjective decisions about a person's real religious beliefs: Is this professor, for instance, really observant enough to count towards, say, the Jewish, Protestant, or Catholic headcount, or should he be viewed as one of the atheist, agnostic, and otherwise secular employees? Is a department with many different Protestant denominations represented but very few Catholics sufficiently religiously diverse? What if it has many Protestants, Catholics, Jews, and others, but all of them belong to theologically liberal or reformist factions, with no-one belonging to the more conservative streams within those broad religious groups?
But rules banning religious discrimination do not suffer from these problems. They can be implemented without government decisions about who is "Jewish enough," whether there are enough Christians in the department, and whether diversity should be measured at the Protestant, Catholic, Jewish, Muslim, etc., level or instead should focus on smaller subdivisions within each group. The question is simply whether faculty or would-be faculty are being treated equally without regard to their religion.
Likewise, conditions banning ideological discrimination in contracting or in hiring, unlike ones mandating ideological diversity, could be implemented without requiring ideological discrimination. The requirement would simply be that people be judged without regard to their ideologies—a requirement that is already required for public employers under the First Amendment. Likewise, a condition banning ideological discrimination against students or prospective students could be implemented without the difficulties posed by conditions requiring that students be chosen with an eye towards ideological diversity.
To be sure, there are reasonable arguments that private universities who want to convey certain ideological messages have a constitutional right to choose their professors based on the professors' ideological views. The First Amendment law on this is unsettled. The matter is further complicated when the nondiscrimination rule is a condition on government benefits rather than a categorical requirement. {Consider Christian Legal Society v. Martinez, 561 U.S. 661 (2010), which held that the government may attach nondiscrimination conditions to funding programs for public university student groups, even when conditions prohibit associational decisions that would be protected by the First Amendment. "[O]ur decisions have distinguished between policies that require action and those that withhold benefits," the Court reasoned, upholding the restriction because the government was "dangling the carrot of subsidy, not wielding the stick of prohibition."} But at the very least conditions restricting ideological discrimination by universities wouldn't face the particular objections to ideological diversity rules outlined earlier in the Article.
