“Viewpoint Diversity” Requirements as a New Fairness Doctrine: Viewpoint Discrimination in Application

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 follow-up section on why such requirements are likely to be viewpoint discriminatory in application.

[VI.] Viewpoint Discrimination in Application

Beyond the viewpoint-based chilling effects, viewpoint diversity mandates are also likely to be viewpoint-based in application: They are likely to be enforced in ways that require universities to add more representation of viewpoints that are seen as “mainstream” or “legitimate”—or that match the viewpoint of the funding presidential administration—rather than viewpoints that are controversial and unpopular.

Viewpoint diversity mandates obviously can’t be used to promote all viewpoints (just as the Fairness Doctrine couldn’t be used to give airtime to all viewpoints). Nor can one just say that they need to promote “both” viewpoints: Very few matters are entirely either-or, with only two views on the issue.

The question is rarely something like “should we have immigration or shouldn’t we?” Rather, some might argue for no immigration, some for very little, some for a lot, and some for unlimited immigration. Within the “very little” or “a lot” options, some might want to see a preference for more educated or richer immigrants, while others might disagree. Some might want more immigrants from certain countries, while others might want more immigrants from other countries, and still others might want to have no country preferences at all. Some might want to allow immigrants but make them easy to deport; others might want to make deportation extremely difficult. Some might want a quick path to citizenship, and others a slow one, or even no path at all.

There are far too many possible viewpoints on most subjects to ensure that all will be represented. After all, a typical law school or public policy school (if that’s where immigration experts are hired) might have only a few positions for people who specialize in immigration. Whoever enforces the mandate must choose which viewpoints are to be included.

In the process, the enforcers will have to make many decisions. There is the old joke that a university department has people with a wide range of opinions—from Bernie Sanders all the way to Joe Biden. Presumably that wouldn’t count as sufficient viewpoint diversity if a viewpoint diversity mandate has any meaning.

Likewise, presumably a department’s hiring people who only support unlimited immigration, nearly unlimited immigration, and very broad immigration wouldn’t be seen as providing “viewpoint diversity” on that particular topic. Likewise, given that viewpoint diversity is likely to be evaluated at the department level rather than just at the level of one particular topical area (such as immigration policy), a department hiring people who have Marxist views, critical race theory views, and liberal views wouldn’t count as “viewpoint diversity,” even if the faculty in each camp think the others’ viewpoints are wildly mistaken.

Conversely, say a department that has two faculty members who study immigration policy, one of whom takes a loosely mainstream Democratic Party view on the subject and one who takes a loosely mainstream Republican Party view. The department likely wouldn’t be faulted as lacking “viewpoint diversity” on the grounds that no faculty take views that are seen as extreme within the context of modern American political debate (e.g., people who support completely open borders or who support total closing of all immigration and deportation of all noncitizens, including those who are legally present).

Presumably “viewpoint diversity” would, in practice, have to mean some meaningful representation of “conservative” or “right-wing” views as well as “liberal” or “left-wing” views. But this means that government officials will have to repeatedly make ideologically laden decisions about just where on the spectrum a particular view falls.

And those decisions often can’t be made in any objective, truly neutral way. Say, for instance, that one of the most prominently visible law school faculty members prominently advocates very broad free speech protections. Should that be counted as a “right-wing” position or a “left-wing” one? Or say that another faculty member is known for arguing that religious objectors shouldn’t be entitled to exemptions from generally applicable laws under the Free Exercise Clause. Today, that is a “liberal” view, associated with Justices Kagan, Sotomayor, and Jackson. But when the faculty member was hired, that may well have been a “conservative” view, associated with Justice Scalia and Chief Justice Rehnquist.

Or consider methodological divides. Law and economics, for instance, was historically seen as a “conservative” position, but of course many scholars use law-and-economics tools to reach liberal results. The same is true of originalism. How would a liberal originalist be counted for viewpoint diversity purposes?

More broadly, say a department has several prominent faculty members:

1. One is known for scholarship, teaching, and public commentary arguing for legalizing all drugs.
2. Another is known for supporting essentially unlimited immigration.
3. Another is known for wanting to sharply limit police power.
4. Another was prominent in the movement to legalize same-sex marriage.
5. Another consistently argues for free markets.
6. Another argues for gun rights and opposes nearly all gun control measures.
7. Another strongly supports private property rights.
8. Another backs school choice programs.

Is this a suitably viewpoint diverse department, because it has some faculty who endorse left-wing positions 1 to 4 (some perhaps seen as highly left-wing) and others who endorse right-wing positions 5 to 8? Would the answer change if, when asked, all eight faculty members say they are committed libertarians (and would even agree with each other on all those views, because they are part of the libertarian agenda)? Or would the department only be sufficiently viewpoint-diverse if it also had opponents of drug legalization, immigration, free markets, and gun rights? If so, how would that work given the limited number of faculty members that the department may be able to employ?

But beyond just the question of how particular viewpoints are categorized—which would itself be influenced by the ideological positions of the government officials who are doing the categorizing—presumably some viewpoints will be seen as so illegitimate or unfounded that the government won’t require them to be included under the “diversity” rubric. Say that someone objects that some department entirely lacks avowed racists, or outright Communists, or advocates of political violence or of eliminating the age of consent for sex.

As a practical political matter, this lack probably wouldn’t be seen as inconsistent with a viewpoint diversity mandate. Yet lack of representation for more mainstream viewpoints presumably would be seen as inconsistent with such a mandate (that’s the point of the mandate). The federally imposed viewpoint diversity mandates would thus promote certain viewpoints—including viewpoints about inherently contestable value judgments, and not just about factual questions that might reasonably be viewed as settled—and not others.

Nor can this government preference for certain viewpoints over others be avoided by requiring proportional representation, or a department that “looks like America” in an ideological sense. One quarter of the population strongly or somewhat agrees with the view that “Jews are more willing than others to use shady practices to get what they want.” One-eighth strongly or somewhat agrees with the view that “The use of force is justified to ensure members of Congress and other government officials do the right thing.” Six percent of the population continues to condemn interracial marriage. Does it follow that law schools or political science departments will have to hire accordingly?

Likewise, consider medical schools or science or history departments. Presumably a viewpoint diversity requirement for medical school hiring might call for some diversity of views on topics that are genuinely controversial among serious scholars, such as youth gender medicine or the propriety of vaccinating young children against COVID. {Both these topics are ones on which the medical establishments of advanced Western democracies have split, which suggests that there is genuine and reasonable debate on the subject.} But if the medical school is entirely homogeneous on questions such as the germ theory of disease, the general utility of vaccines, or the superiority of modern medicine over faith healing, that presumably wouldn’t be a reason to strip it of funds for lacking viewpoint diversity.

Nor is this limited to homogeneity on empirical questions; a “viewpoint diversity” requirement would likely be enforced in ways that tolerate homogeneity as to certain normative questions as well. For instance, a history department that entirely consists of Marxists or of pro-colonialists would presumably be faulted for lacking viewpoint diversity. But even if every member of the department rejects the normative views that Stalin was a great humanitarian or that the world would be a better place with more anti-Semitism, we would understandably think that there’s no problem with those viewpoints being unrepresented.

Thus, in implementation, a viewpoint diversity requirement couldn’t be viewpoint-neutral: It would necessarily end up protecting some viewpoints from being omitted or neglected, but it wouldn’t protect other viewpoints. To be sure, some might defend such a requirement despite the inevitable viewpoint discrimination in its application. My argument here is simply that such viewpoint discrimination is inevitable.

And this too is one of the reasons the Fairness Doctrine was rejected:

[T]he enforcement of the doctrine requires the “minute and subjective scrutiny of program content,” which perilously treads upon the editorial prerogatives of broadcast journalists…. [I]n administering the doctrine [the Commission] is forced to undertake the dangerous task of evaluating particular viewpoints….

[U]nder the fairness doctrine, a broadcaster is only required to air “major viewpoints and shades of opinion” to fulfill its balanced programming obligation …. [T]he Commission is [therefore] obliged to differentiate between “significant” viewpoints which warrant presentation to fulfill the balanced programming obligation and those viewpoints that are not deemed “major” and thus need not be presented. The doctrine forces the government to make subjective and vague value judgments about various opinions on controversial issues to determine whether a licensee has complied with its regulatory obligations. …

The doctrine requires the government to second-guess broadcasters’ judgment on such sensitive and subjective matters as the “controversiality” and “public importance” of a particular issue, whether a particular viewpoint is “major,” and the “balance” of a particular presentation.

Here too, the FCC’s analysis applies to viewpoint diversity requirements as much as to the Fairness Doctrine, simply by changing “broadcaster” to “university department” and adapting a few other words accordingly.