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.
