“Viewpoint Diversity” Conditions as a New Fairness Doctrine

The article is here; the Abstract:

The Trump Administration has been trying to attach “viewpoint diversity” mandates to federal funding, especially for universities. This Article analyzes the parallels between these new proposals and a much older one: the Fairness Doctrine.

The arguments for both are similar. Lawyers who want to argue in favor of the constitutionality of viewpoint diversity mandates may get some help from Red Lion Broadcasting v. FCC, which upheld the Fairness Doctrine against constitutional challenge.

But the arguments against the Fairness Doctrine—ultimately accepted by the Reagan Administration’s FCC in 1987, when it rejected the Doctrine—are also powerful arguments against viewpoint diversity mandates. Both the Fairness Doctrine and the mandates tend to deter the targeted institutions (whether broadcasters or universities) from allowing controversial speech, or hiring or admitting controversial speakers. And both are inevitably viewpoint-discriminatory in application.

To quote the FCC’s 1987 decision, the FCC’s “enforcement of the doctrine acts to inhibit the expression of unpopular opinion; it places the government in the intrusive role of scrutinizing program content; it creates the opportunity for abuse for partisan political purposes; and it imposes unnecessary costs upon both broadcasters and the Commission.” Much the same is likely to be true of broad government-imposed viewpoint diversity mandates.