“Viewpoint Diversity” Requirements as a New Fairness Doctrine: Why Countervailing Pressures to Protect Controversial Views Are Likely to Be Inadequate

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 to that:

[D.] Why Countervailing Pressures to Protect Controversial Views Are Likely to Be Inadequate

To be sure, despite the chilling effect described above, not all controversial faculty speech (or hiring of controversial faculty) will be chilled. University faculty may have their own reasons to speak out in controversial ways: perhaps personal ideological commitment, a felt obligation to express what they see as the truth even when it may draw ideological fire, a desire to win approval from people (inside and outside the academy) who share their ideological views, or a desire to make a name for themselves as interesting and important scholars. To the extent that universities maintain a strong system of tenure protection, even risk-averse administrators might not be able to constrain at least some such faculty members.

Likewise, if universities are committed to academic freedom, they might choose not to try to constrain faculty members even when the faculty’s actions are causing political and financial problems for the university. And as noted above, the very mandate of “viewpoint diversity” could pressure universities to hire more faculty members who seek to express politically controversial viewpoints, rather than just faculty members who are seen by the public as apolitical.

This, of course, is also what the Court argued in Red Lion:

The communications industry … [has] 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 experience with the administration of [the Fairness Doctrine] indicates that [it has] the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications….

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

Indeed, the Doctrine itself imposed “an affirmative obligation” on broadcasters “to cover vitally important controversial issues of interest in their communities.”

Yet the FCC ultimately concluded that licensees’ general obligation to cover public issues didn’t do much to counteract the chilling effect created by the Fairness Doctrine. And it added that “the fact that some broadcasters may not be inhibited in the presentation of controversial issues of public importance does not prove that broadcasters in general are similarly uninhibited.”

Likewise, the viewpoint diversity mandates are likely to create a chilling effect on controversial faculty speech. The mandates are unlikely to eliminate such speech altogether, especially to the extent that universities continue to be committed to faculty academic freedom (or to the extent that the First Amendment requires public universities to be thus committed). But the mandates are likely to reduce controversial faculty speech, especially since faculty members may suspect that academic freedom norms are unlikely to completely prevent retaliation in promotion, lateral hiring, and the like. And the reduction will be necessarily viewpoint-based, because the mandates “inherently provide[] incentives that are more favorable to the expression of orthodox and well-established opinion with respect to controversial issues than to less established” (or at least less publicly popular) “viewpoints.”