I’ve an article titled “Viewpoint Diversity” Requirements as a New Fairness Doctrine forthcoming in a number of months within the George Mason Legislation Assessment, and I needed to serialize a draft of it right here. There’s nonetheless time to edit it, so I might love to listen to individuals’s suggestions. The fabric beneath omits the footnotes (besides a number of that I’ve moved into textual content, marked with {}s, as I usually do once I transfer textual content inside quotes); if you wish to see the footnotes—or learn the entire draft without delay—you may learn this PDF. You may see the opening sections drawing the Equity Doctrine / viewpoint range necessities analogy here; here’s a transient part that dismisses one argument towards viewpoint range necessities:
[IV.] Regulators’ Motivations
[It does not matter for purposes of my analysis] that trendy viewpoint range mandates come out of a want to advertise sure viewpoints (as we speak, conservative ones) that their backers suppose are unfairly discriminated towards.
Many rules stem from perceived issues brought on by specific teams that specific specific views. The 36-foot bubble zone round abortion clinics in McCullen v. Coakley, for example, 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 have been seemingly abortion rights supporters. However the Courtroom handled the restriction as viewpoint-neutral and even content-neutral as a result of the federal government’s acknowledged functions have been sufficiently impartial: defending security and stopping obstruction of passageways.
One may say the identical of different restrictions, such because the residential picketing ban in Frisby v. Schultz, which was enacted in response to picketing exterior an abortion supplier’s residence, or the bans on picketing close to funerals, which seem to have been prompted by the actions of the Westboro Baptist Church.
Likewise, a acknowledged function of defending the “widest potential dissemination of data from various and antagonistic sources” ought to be seen as sufficiently viewpoint-neutral as effectively. And that might be so even when Republican authorities officers thought-about the underlying imbalance in dissemination as skewed towards Republicans.
To make sure, Moody v. NetChoice, LLC, rejected the federal government’s try to offer ideological steadiness on social media platforms by limiting the platforms’ skill to curate their information feeds. However this concerned direct regulation of privately funded audio system. The Courtroom did not converse as to if the federal government might attempt to promote viewpoint range via circumstances on authorities spending.
I’ll argue beneath that viewpoint range mandates are essentially viewpoint-discriminatory in operation. However the argument is not going to activate the chance that the backers have been seemingly involved concerning the underrepresentation of viewpoints that the backers favored and thought had been handled unfairly.
