The Trump Administration has sought to impose "viewpoint diversity" mandates on federal funding recipients, particularly universities. A new article published in the George Mason Law Review examines the similarities between these mandates and the Fairness Doctrine, a policy rejected by the Federal Communications Commission (FCC) in 1987 during the Reagan Administration.

The Fairness Doctrine required broadcasters to present contrasting viewpoints on controversial issues but was ultimately abandoned due to concerns that it inhibited unpopular opinions, involved intrusive government scrutiny of content, and created opportunities for partisan abuse. The 1987 FCC decision noted that the doctrine imposed unnecessary costs on broadcasters and the Commission.

The article argues that these same criticisms apply to contemporary viewpoint diversity mandates. Both policies tend to discourage institutions from allowing controversial speech or engaging controversial speakers and are inherently viewpoint-discriminatory in practice.

While some legal advocates may cite the Supreme Court case Red Lion Broadcasting v. FCC, which upheld the Fairness Doctrine, as support for the constitutionality of viewpoint diversity mandates, the Reagan-era FCC’s rejection of the doctrine presents strong counterarguments.

As the FCC stated in 1987, enforcement of such mandates "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." The article suggests that broad government-imposed viewpoint diversity conditions are likely to produce similar effects.

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