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 brief follow-up section to that:
[D.] Why Countervailing Pressures to Protect Controversial Views Are Likely to Be Inadequate
To be sure, despite the chilling effect described above, not all controversial faculty speech (or hiring of controversial faculty) will be chilled. University faculty may have their own reasons to speak out in controversial ways: perhaps personal ideological commitment, a felt obligation to express what they see as the truth even when it may draw ideological fire, a desire to win approval from people (inside and outside the academy) who share their ideological views, or a desire to make a name for themselves as interesting and important scholars. To the extent that universities maintain a strong system of tenure protection, even risk-averse administrators might not be able to constrain at least some such faculty members.
