“Viewpoint Diversity” Requirements as a New Fairness Doctrine: Regulators’ Motivations

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 the opening sections  drawing the Fairness Doctrine / viewpoint diversity requirements analogy here; here is a brief section that dismisses one argument against viewpoint diversity requirements:

[IV.] Regulators’ Motivations

[It does not matter for purposes of my analysis] that modern viewpoint diversity mandates come out of a desire to promote certain viewpoints (today, conservative ones) that their backers think are unfairly discriminated against.

Many regulations stem from perceived problems caused by particular groups that express particular views. The 36-foot bubble zone around abortion clinics in McCullen v. Coakley, for instance, was enacted in response to speech that expressed anti-abortion views. The bubble zone disproportionately affected anti-abortion speech. The legislators who voted for it were likely abortion rights supporters. But the Court treated the restriction as viewpoint-neutral and even content-neutral because the government’s stated purposes were sufficiently neutral: protecting safety and preventing obstruction of passageways.

One could say the same of other restrictions, such as the residential picketing ban in Frisby v. Schultz, which was enacted in response to picketing outside an abortion provider’s home, or the bans on picketing near funerals, which appear to have been prompted by the actions of the Westboro Baptist Church.

Likewise, a stated purpose of protecting the “widest possible dissemination of information from diverse and antagonistic sources” should be seen as sufficiently viewpoint-neutral as well. And that would be so even if Republican government officials considered the underlying imbalance in dissemination as skewed against Republicans.

To be sure, Moody v. NetChoice, LLC, rejected the government’s attempt to provide ideological balance on social media platforms by restricting the platforms’ ability to curate their news feeds. But this involved direct regulation of privately funded speakers. The Court didn’t speak to whether the government may try to promote viewpoint diversity through conditions on government spending.

I will argue below that viewpoint diversity mandates are necessarily viewpoint-discriminatory in operation. But the argument will not turn on the likelihood that the backers were likely concerned about the underrepresentation of viewpoints that the backers favored and thought had been treated unfairly.