Eugene Volokh's Blog, page 13

[Eugene Volokh] "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Permissible Options

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. Earlier posts have largely criticized such viewpoint diversity requirements, by analogy to criticisms of the Fairness Doctrine. Here are two sections discussing possible permissible options related to viewpoint diversity and nondiscrimination, plus the Conclusion.

[IX.] The Permissible Scope of Viewpoint Diversity Mandates: Support for Specific Messages or Programs That the Government Is Promoting

So far, I have argued that viewpoint diversity mandates are inevitably viewpoint-based, and that therefore, the government can't attach them as conditions to general funding aimed at promoting accessibility of universities to students (e.g., student loans) or at funding universities' or faculty members' own research projects.

But of course, when the government is aiming to promote particular messages, it can indeed favor some viewpoints over others. As the Court noted in Rust v. Sullivan,

When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.

Likewise, Congress is free to provide a grant to the National Endowment for Democracy calling for it to fund pro-democracy programs in a way that supports "viewpoint diversity." That grant condition would presumably require the Endowment to support a wide range of different viewpoints on how best to promote democracy: Perhaps the Endowment would need to make sure that grants go towards projects that promote presidential democracy systems as well as parliamentary ones, towards projects that accept local views on what is democratic enough, or towards projects that call for adopting supposedly universal human rights principles.

Yet the grant condition wouldn't be read as requiring true viewpoint neutrality. The programs could all still support democracy and not communism or fascism. Likewise, the programs could focus on more mainstream approaches to democracy promotion rather than ones that are seen as too avant-garde or too unlikely to be accepted by the foreign governments, organizations, or societies that Congress is trying to influence.

The same would likely be so if the federal government attaches a condition to a particular grant for which it sees a particular sort of ideological balance as part of the message that it seeks to promote. In this respect, such funding conditions are similar to what university departments, including public university departments, routinely do in organizing conferences. A law school may well allot funds to faculty to put on a conference on, say, recent Supreme Court cases, but with the condition that each panel have "viewpoint diversity." Presumably, that would mean that a panel on a particular case should probably have at least one person who supports the majority's position and at least one person who opposes it. Each panel should probably have at least one person loosely from the ideological Right (which may mean different things for different cases) and at least one person loosely from the ideological Left. {A typical conference would likely not have these as rigid requirements for each portion of the program, even if the Dean stresses that the program should have viewpoint diversity. Among other things, the program may well have one keynote address from one speaker, who would be free to express his or her own views and not the contrary views. But a Dean may well ask for such viewpoint diversity, and expect it to be present in general even if not in each separate part of the program.}

This sort of viewpoint diversity requirement would, as argued above, necessarily involve some viewpoint discrimination. Not every possible view on each case could be represented, and the organizers may well favor mainstream views over ones that they see as too ideologically extreme.

This viewpoint discrimination is permissible because the conference as a whole is a form of government speech, albeit composed by the government from the speech of individual speakers. Even if the organizers don't endorse the particular view of each of the participants, they are creating a curated speech product by deliberately choosing whom to invite. That speech product is much like what a newspaper might do with its op-ed page, which may deliberately have a diversity of viewpoints—but limited to viewpoints that the editors see as mainstream, as especially insightful, or at least as being within the range of views that they see as plausible.

But this sort of flexibility for government speech extends only when the government is controlling a particular message that it is choosing to promote. As the Court explained in Rosenberger v. Rector, the government may "regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message":

In the same vein, in Rust v. Sullivan, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program…. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.

Yet "[i]t does not follow … that viewpoint-based restrictions are pro­per" when the government "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers." Rather, "viewpoint neutrality [is required] in the Government's provision of financial benefits" to private speakers.

And beyond this, as the Court recognized in Agency for Int'l Development v. Alliance for Open Society Int'l, the government may not leverage its control over a particular grant into control over the privately funded programs of the grantee:

[T]he relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself. The line is hardly clear, in part because the definition of a particular program can always be manipulated to subsume the challenged condition…. [But] Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.

Thus, the government may not attach viewpoint-based conditions that seek to control the makeup of university departments—including viewpoint diversity requirements for the departments—to general government benefits, such as student loan subsidies or to all government grants. But if, for instance, it wants to insist that particular grants for particular projects will be awarded only to, say, teams of four or more researchers that can show sufficient intradisciplinary "viewpoint diversity" within the team, it is free to do so.

[X.] Non-Discrimination Rules May Be Permissible Even Where Viewpoint Diversity Rules Are Not

I have criticized contractual requirements of ideological diversity, but these criticisms do not apply to contract conditions banning ideological discrimination if the government chooses to impose them.

To start with an analogy, rules mandating religious diversity would likely require religious discrimination in their implementation, partly by requiring subjective judgments about which sorts of religious diversity count. Such mandates may lead to people not being hired based on their religious beliefs if there are too many professors of the same religion already on the job.

The mandates will also require intrusive and subjective decisions about a person's real religious beliefs: Is this professor, for instance, really observant enough to count towards, say, the Jewish, Protestant, or Catholic headcount, or should he be viewed as one of the atheist, agnostic, and otherwise secular employees? Is a department with many different Protestant denominations represented but very few Catholics sufficiently religiously diverse? What if it has many Protestants, Catholics, Jews, and others, but all of them belong to theologically liberal or reformist factions, with no-one belonging to the more conservative streams within those broad religious groups?

But rules banning religious discrimination do not suffer from these problems. They can be implemented without government decisions about who is "Jewish enough," whether there are enough Christians in the department, and whether diversity should be measured at the Protestant, Catholic, Jewish, Muslim, etc., level or instead should focus on smaller subdivisions within each group. The question is simply whether faculty or would-be faculty are being treated equally without regard to their religion.

Likewise, conditions banning ideological discrimination in contracting or in hiring, unlike ones mandating ideological diversity, could be implemented without requiring ideological discrimination. The requirement would simply be that people be judged without regard to their ideologies—a requirement that is already required for public employers under the First Amendment. Likewise, a condition banning ideological discrimination against students or prospective students could be implemented without the difficulties posed by conditions requiring that students be chosen with an eye towards ideological diversity.

To be sure, there are reasonable arguments that private universities who want to convey certain ideological messages have a constitutional right to choose their professors based on the professors' ideological views. The First Amendment law on this is unsettled. The matter is further complicated when the nondiscrimination rule is a condition on government benefits rather than a categorical requirement. {Consider Christian Legal Society v. Martinez, 561 U.S. 661 (2010), which held that the government may attach nondiscrimination conditions to funding programs for public university student groups, even when conditions prohibit associational decisions that would be protected by the First Amendment. "[O]ur decisions have distinguished between policies that require action and those that withhold benefits," the Court reasoned, upholding the restriction because the government was "dangling the carrot of subsidy, not wielding the stick of prohibition."} But at the very least conditions restricting ideological discrimination by universities wouldn't face the particular objections to ideological diversity rules outlined earlier in the Article.

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[Josh Blackman] Today in Supreme Court History: October 17, 1862

10/17/1862: Justice David Davis takes oath.

Justice David Davis

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[Ilya Somin] US Chamber of Commerce Files Lawsuit Challenging Trump's $100,000 H-1B Visa Fee

[This is the second lawsuit challenging the policy, which is both illegal and likely to cause great harm if allowed to stand.]

NA

Yesterday, the US Chamber of Commerce filed a lawsuit challenging Donald Trump's  imposition of a $100,000 fee on applications for H-1B visas, which are used by tech firms, research institutions, and others to hire immigrant workers  with various highly specialized skills. This is the second lawsuit against the H-1B visa fees. The earlier case , Global Nurse Force v. Trump, was filed a coalition of mostly left-leaning litigants, including education groups (e.g. - the American Association of University Professors), religious organizations, and  labor unions. It's not every day that major labor unions find themselves on the same side as America's leading organization representing businesses! But this issue has brought them together.

In a previous post, I outlined reasons why Trump's imposition of the H-1B visa fee goes beyond the statutory authority granted by Congress, and also explained how the administration's interpretation of the law would violate the nondelegation doctrine (which limits delegations of legislative power to the executive). I also summarized why the fee would inflict grave harm on the US economy, as H-1B visa holders disproportionately contribute to innovation and economic growth.

The lawsuit filed by the Chamber makes many of the same types of arguments as the Global Nurse Force plaintiffs. They too, emphasize that Trump lacks statutory authority to impose the fees, and that interpreting the relevant statutes to allow it would go against the "major questions" doctrine, and violate constitutional limits on delegation, especially given that this delegation involves the power to raise revenue. And revenue-raising is, as the Chamber notes,  "a core power reserved for Congress (see, e.g., U.S. Const. art. I § 7, cl. 1; id. § 8, cl. 1), "Congress must indicate clearly its intention to delegate to the Executive the discretionary authority to" impose "'fees' or 'taxes…'"

I think the Chamber should develop the nondelegation argument further, including making the point that Trump's position implies virtually unlimited presidential authority to restrict migration and impose conditions on entry. That violates nondelegation even aside from the revenue angle.

I hope the combination of the Chamber lawsuit and the earlier case will lead to the demise of the $100,000 fee, preferably sooner rather than later. There may be other cases challenging the fee, as well. I will likely have more to say as this litigation continues.

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[Eugene Volokh] IRS Agents Who Revealed Details About Hunter Biden Investigation Lose Libel Suit Against Biden's Lawyer

[The lawyer's claims that plaintiffs had violated federal law were opinions based on disclosed facts, the court concludes.]

An excerpt from the long decision in Shapley v. Lowell by Judge Richard Leon (D.D.C.) filed today:

This case arises from the multi-year criminal investigation into Hunter Biden's tax compliance. Two of the Internal Revenue Service's special agents involved, plaintiffs Gary Shapley and Joseph Ziegler, revealed details about the investigation to Congress and the media due to their concerns that the Department of Justice and the Internal Revenue Service were giving Hunter Biden preferential treatment during the course of the investigation. Plaintiffs filed this suit against one of Hunter Biden's counsel, Abbe Lowell, alleging that he sent defamatory statements to the media that accuse plaintiffs of violating federal law….

For a statement to be "actionable," it must at least express or imply a verifiably false fact about the plaintiffs. … "[W]hen a writer gives a statement of opinion that is based upon true facts that are revealed to readers … such opinions generally are not actionable so long as the opinion does not otherwise imply unstated defamatory fact." …

Starting with context, the documents in which the challenged statements appear, and the circumstances of their alleged publication, cut against these statements being actionable. The statements are not isolated accusations of wrongdoing, as presented in the Complaint, but rather reasoned—albeit aggressive—positions that Biden's attorneys took in the course of representing and advocating for their client. During a criminal investigation of then-sitting President Joe Biden's son, Government agents disclosed details about the investigation to Congress and the media. Biden's defense attorneys wrote letters to Government officials in an attempt to stop more information about their client from becoming public. The challenged statements are contained in these letters.

In the lead letter, Lowell informs the reader that he is attaching the August 14, 2023 letter where he outlines the factual and legal reasons why he believes plaintiffs violated the law. He also attaches other correspondences, including Clark's letter to DOJ's Inspector General that provides a more detailed legal analysis. Viewed in the context of the letters, the challenged statements are a legal opinion advanced by defense attorneys to Government officials during a highly charged criminal investigation of their client.

Turning to the circumstances of the statement's publication, that too happened during Lowell's legal representation of his client. The Government's investigation of Hunter Biden received national attention, and Lowell believed that congressional representatives would publicly disclose the Biden attorneys' correspondences "on a selective, self-serving basis.". Lowell therefore represented that Biden's legal team were making the correspondences available to the public for "any person" to review. It is apparent from the letter that Lowell wanted to change the narrative concerning the Government's investigation of his client. Without a doubt, the authorship of the challenged statements and their subsequent publication were the product of legal advocacy.

Beyond context, the challenged statements cannot be "said to imply undisclosed defamatory facts." Just the opposite: the challenged statements are based on facts that are disclosed and undisputed. In the letters, Lowell provides the reader with a compilation of details about plaintiffs' congressional testimony and their disclosures to the media. Plaintiffs do not dispute the truth of these disclosed facts—only the legal significance of them. Given the breadth of detail in the letters, the reader would not understand Lowell to be implying any false facts about the plaintiffs. Instead, "the reader understands" such opinions as the speaker's "interpretation of the facts presented, and because the reader is free to draw his or her own conclusion based upon those facts, this type of statement is not actionable in defamation."

Finally, the challenged statements are not sufficiently factual to be "susceptible to proof of their truth or falsity." While the statements describing plaintiffs' conduct as "clear-cut crimes" and "quite simply felonies" may look like statements of fact at first blush, they express a legal opinion based on the application of Federal Rule of Criminal Procedure 6(e) and section 6103 of title 26 of the United States Code. And the application of these provisions is hardly straightforward. Rule 6(e) forbids the disclosure of grand jury material by certain persons, unless an enumerated exception applies. But our Circuit has held that, "when once-secret grand jury material becomes 'sufficiently widely known,' it may 'los[e] its character as Rule 6(e) material,'" though "not every public disclosure waives Rule 6(e) protections."

So too § 6103 provides that tax "[r]eturns and return information shall be confidential" and shall not be disclosed except as authorized. The U.S. Courts of Appeals are split as to when such information is no longer confidential and subject to the restrictions of the statute, if it is in the public domain. Our Circuit has not, however, weighed in on this so-called "public domain exception" to § 6103. Thus, while the legality of plaintiffs' conduct depends in part on questions of fact, it is ultimately a legal judgment. Due to the complexities in the law, that judgment is not readily verifiable as true or false….

The Supreme Court's decision in Milkovich v. Lorain Journal Company is instructive. In that case, a high school wrestling coach argued that a local newspaper libeled him by printing a column that implied he had perjured himself in a judicial proceeding concerning his role in a brawl at a wrestling match. The column was entitled "Maple [Heights High School] beat the law with the 'big lie,'" and stated, in part: "Anyone who attended the meet … knows in his heart that [the coach] … lied at the hearing after [he had] given his solemn oath to tell the truth." The Supreme Court held that a reasonable factfinder could conclude that the column implied an assertion that the coach perjured himself in a judicial proceeding, and that "the connotation that [the coach] committed perjury is sufficiently factual to be susceptible of being proved true or false" because "whether [the coach] lied … can be made on a core of objective evidence by comparing, inter alia, petitioner's testimony before the … board with his subsequent testimony before the trial court."

Here, by contrast, the factfinder cannot determine whether the challenged statements are true or false by verifying whether the plaintiffs' conduct violated established law; rather, the factfinder would have to decide, among other potential legal issues, the extent to which the public domain exceptions to Rule 6(e) and § 6103 are applicable to plaintiffs' conduct and the information that they disclosed. That inquiry is not purely factual; it is a matter of legal judgment!

Not surprisingly, plaintiffs disagree. They argue that Lowell did not "hedge his opinion or otherwise make clear that it was debatable" whether they committed felonies and that, by speaking with "finality," the challenged statements are verifiable facts. According to plaintiffs, because there is a circuit split as to the application of § 6103, it is false that their activities were a "clear-cut crime" or a crime without "cognizable legal protection." But the finality of a statement is not determinative of whether a statement is a fact as opposed to an expression of a firmly held opinion. Just as the qualifier "I think" does not transform a statement of fact into one of opinion, the lack of a qualifier does not necessarily turn an opinion into a fact. Here, Lowell made an assertive statement concerning nuanced law, and he was not required to provide a "balanced" view of his opinion.

Our system of justice is adversarial, and the reader expects that criminal defense attorneys are not neutral arbiters! While that does not give an attorney a free pass to say whatever he pleases, Lowell provides the reader with the legal and factual bases for his statements, and the reader would understand, and expect, that Biden's attorneys were advancing a legal position that was advantageous for their client….

Even if the challenged statements were actionable, plaintiffs' claims suffer from another fatal flaw: the Complaint does not plausibly allege that Lowell acted with "actual malice" [i.e., recklessness or knowledge as to the falsehood of the statements -EV] in allegedly publishing the letters….

Charles Michael, Jason M. Weinstein, and Michael E. Stoll (Steptoe & Johnson LLP) represent defendant.

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[Eugene Volokh] Repeated "Nonexistent Cases" in Filing From >20-Lawyer Insurance Defense Firm

[Lawyers at firms of all size, don't let this happen to you.]

From today's decision in Gittemeier v. Liberty Mutual Pers. Ins. Co. (E.D. Mo.):

Gittemeier posits that Liberty Mutual again miscited cases in its filing and referenced at least one non-existent citation, despite the Court's warning in the previous order to verify its sources before submitting future filings. Gittemeier points out that the Goodman case was again miscited in Liberty Mutual's filing after it had been miscited in the initial summary judgment memorandum. Moreover, Gittemeier asserts that the quoted section from 30 Mo. Prac., Insurance Law & Practice is not found in the cited section or in the nearby sections….

Liberty Mutual's erroneous citations constitute a serious oversight warranting consideration of sanctions pursuant to Rule 11. After Liberty Mutual cited two nonexistent cases in its initial motion for summary judgment, the Court urged "Liberty Mutual to verify its sources before submitting future filings with the Court" and indicated that this warning would be provided only once. Yet somehow, in its memorandum in support of its second motion for summary judgment, Liberty Mutual not only cited two nonexistent cases again (Goodman was miscited previously as well), but also misquoted or mischaracterized multiple cases, including Dhyne, Goodman, and Chaudri. {Liberty Mutual cited Goodman v. Liberty Mut. Fire Ins. Co., 2022 WL 4534416, at *6-7 (E.D. Mo. Sept. 28, 2022) and Chaudhri v State Auto Prop. & Cas. Ins. Co., 2022 WL 4596697 (E.D. Mo. Sept 30, 2022). These cases do not exist.} Furthermore, Liberty Mutual falsely suggested that 30 Mo. Prac., Insurance Law & Practice §§ 4:2, 4:8, and 4:9 contains comments regarding cooperation clauses and EUO [examination under oath] requirements.

One week after filing its second motion for summary judgment, Liberty Mutual submitted a notice of errata identifying the erroneous Goodman and Chaudri citations and demonstrating legitimate citations to those cases. {In the notice of errata, Liberty Mutual asserts that it intended to cite Goodman v. Allstate Fire & Casualty Insurance Co., 2023 WL 5667909 (W.D. Mo. July 26, 2023) and Chaudhri v. State Auto, 2019 WL 1519307 (W.D. Mo. April 8, 2019).} While the Court acknowledges Liberty Mutual's prompt notice disclosing the two most serious errors in its filing, the additional misquotations and mischaracterizations discussed above will not be disregarded.

Liberty Mutual indicates that the errors were typographical and/or caused by vision impairment, but that explanation is simply not credible. The errors in Liberty Mutual's filing are not ones in which a few letters or numbers were passed over or shuffled. Rather, the filing includes entire names, dates, court designations, and Westlaw citations that are completely off base, and various other inaccuracies cannot be explained by typographical or vision issues. Therefore, the Court will reserve its ruling on the motion for sanctions and will set a hearing requiring Liberty Mutual to show cause why it should not be sanctioned.

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[Eugene Volokh] Everything Old Is New Again, Part MDCCCXI: The "Wire Service Defense" Before Wire Services

American libel law has long recognized the "wire service defense"; to quote Layne v. Tribune Co. (Fla. 1933),

The mere reiteration in a daily newspaper, of an actually false, but apparently authentic news dispatch, received by a newspaper publisher from a generally recognized reliable source of daily news, such as some reputable news service agency engaged in collecting and reporting the news, cannot through publication alone be deemed per se to amount to an actionable libel by indorsement, in the absence of some showing from the nature of the article published, or otherwise, that the publisher must have acted in a negligent, reckless careless manner in reproducing it to another's injury.

The defense often arose when a newspaper publisher reprinted stories from wire services (such as the Associated Press), but also applied to reprinting from other "generally recognized reliable source[s] of daily news," such as other newspapers.

It turns out, though, that this issue had arisen long before, and ended up actually being decided in a little-known 1811 case. (It's not on Westlaw, and has been cited only once in law journals, in an article that I wrote in 2010.) The case, excerpted below, is Binns v. M'Corkle, 2 Browne Pa. Rep. 79 (Dist. Ct. 1811) (Hemphill, J.); note the suggestion near the end that "if [a publisher] should quote from a distant and respectable paper, the name and description of a person, said to have absconded on account of the commission of a crime," "the republication might arise from motives of public good" and thus be privileged:

[The alleged libel was:] "This Mr. Binns, who openly advocates Buonaparte's conduct, and maintains his interests in this country, is the same editor of the Democratic Press, who incautiously acknowledged some time since, that if the French government had not have paid him the subscription price of five hundred papers annually, he would have been unable to carry on his paper." …

To the jury, after stating the case.

Was the editor of the Freeman's Journal justified in republishing the sentence in the manner he did?

This question is very important, it being a general one and to govern in all cases.

The rule, in the case of slanderous words spoken, is, that if a person utters the words generally, he is not allowed to justify himself, by disclosing for the first time, by his plea, or at the trial, the name of the author; it can then only go in mitigation of damages: but if, at the time he repeated the words, he gave the name of the author so that the party injured might have his action against him, the law allows this to be a justification [this appears to have been the rule at the time, with the usual citations being the Earl of Northampton's Case, 12 Co. 132, and Davis v. Lewis, 7 Term. Rep. 17 -EV]; but there has been no express decision produced, to shew that this rule has been extended to the republication of a paper, containing a libel. A libel, in some respects differs from slanderous words spoken; it is more criminal, being more deliberate and having a tendency to a breach of the peace.

It appears strange that there has been no decision on this point.

The court however, in extending the rule to the case of a libel, ought to be governed by sound policy, bearing in mind the nature of our government and the freedom of the press.

An unrestrained communication through the medium of the press, and without a previous licence, forms one of the greatest political blessings we enjoy; but this, like every good, has its alloy of evil. On this subject it has been justly remarked by a celebrated author, that the unbounded licentiousness of the press, and the danger of bounding it, will always form a problem capable of puzzling the wisest politicians.

On the propriety of extending the rule to the republication of a libel, much may be said on both sides.

On the one hand, if the rule is not extended, it is said that it will operate as a shackle on the press; upon the other, that if it does apply in the case of a libel, editors may take unfair advantange, by getting a piece put in some obscure paper, in some remote part of the union, and then republish it, with impunity, in the neighbourhood of the person who is the object of the libel.

Will it not upon the whole be safest, and best accord with the general principles of law relating to the subject, to leave the motives of the republisher to the jury. If the republication is made with malice and an intention to injure, let the original publication go only in mitigation of damages; but, if it appears that the republication is made innocently and without malice, let the republisher be excused, if, at the time of the republication, he gave the true source of his information, so as to afford the injured party an opportunity of bringing an action against the real libeller. This will always leave the intention to the jury, who can guard and watch over the motive of the republisher.

If an editor sees a paragraph in a distant and obscure paper, calculated to wound the feelings, or impair the reputation of another, why, it may be asked, should he take it up and give it a wider circulation; such a circumstance, however, under the rule laid down can only weigh as evidence of malice. A case may be imagined, wherein the republisher would appear in a different light; as, if he should quote from a distant and respectable paper, the name and description of a person, said to have absconded on account of the commission of a crime; here the republication might arise from motives of public good.

These observations are made upon the subject generally; for, in this case, as the plea is not guilty, the court are not satisfied that the question can be properly decided under that plea. In similar cases for words spoken, the defendants have justified by special pleas.

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[Keith E. Whittington] Against Trump's New Higher Education "Compact"

[A joint statement and a solo analysis of the Compact's problems]

The Trump administration recently announced a new "Compact for Academic Excellence in Higher Education." The "deal" was initially offered to nine universities, and of those MIT and Brown have already said no. The administration is now rolling out the offer to more universities. Only a fool would take this deal.

The Compact marks a new tactic in the administration's effort to massively transform American higher education. The substantive demands remain much the same as the administration has pushed before, and it continues to rely on threats to financial vulnerabilities of universities. Now the administration promises not only to withhold federal grants from dissenting universities, but to strip them of nonprofit tax status, deny them access to international students, and prevent their students from receiving federal loans. Universities that "voluntarily" agree to the Compact will put themselves under permanent oversight of the Department of Justice, which will be empowered unilaterally to declare them noncompliant at any time and impose devastating financial penalties. It is an extraordinary bid to put essentially every university under the control of the federal executive branch. The Trump administration does not lack for boldness.

The Joint Statement

I have joined a group of five other scholars in a statement urging universities to reject this deal. The signatories are a politically diverse group known for their writing and work on free speech issues relating to American universities. They include Robert George (Princeton), Jeannie Suk Gersen (Harvard), Tom Ginsburg (Chicago), Robert Post (Yale), David Rabban (Texas), and Keith Whittington (Yale). We all speak on this in our individual capacities, but it is worth noting that two of the signatories were former leaders of the American Association of the University Professors and four are in the leadership of the Academic Freedom Alliance.

The joint statement can be found here.

From the conclusion of the statement:

Much has been gained, and much more is to be gained, by a partnership between the federal government and universities as institutions of teaching and research. Both partners need to behave responsibly. On the one side, universities must strictly comply with reasonable grant conditions, including non-discrimination requirements and civil rights laws. On the other side, governments must strictly respect the legitimate autonomy of universities and the academic freedom of their faculty and students.

Read the whole thing.

The Solo Analysis

Separately, I have my own analysis of the Compact at The Dispatch. This piece reviews the several components of the Compact, the mechanisms of enforcement, the radical changes it would make to how higher education has worked for decades in the United States, its willingness to cast aside existing legislative commitments and requirements, and the threat it poses to anything like academic freedom or independent civil institutions in the future. It is rife with unconstitutional conditions on First Amendment-protected speech but seeks to avoid any judicial scrutiny of those constitutional violations by forcing universities into a "voluntary" agreement with the federal executive branch.

From the conclusion of the piece:

There are real problems on college campuses, and the compact at least gestures toward some of those problems. Gesturing toward real problems does not make good policy, however. The compact is vague in its demands, but extraordinary in the amount of control that it wants to claim over the academic, intellectual, and political life of private and public universities. It effectively conditions the continued existence of universities on their ability to satisfy the current policy and political preferences of whomever occupies the White House at any given moment. This is not only incompatible with the existing law and Constitution; it is incompatible with any liberal conception of civil society. Universities are extremely resistant to needed reforms, and some would argue that a sledgehammer is needed to get them to see the light. Well, this is certainly a sledgehammer. If the hammer drops or opens the door to more such demands by this or future administrations, it will be an unmitigated disaster for American higher education.

Read the whole thing here.

As I write there, the Compact is a "sucker's deal." Worse yet, there is no reason to believe that the administration is a good faith partner in any such agreement, and its own terms leave the administration with essentially unfettered discretion to demand more down the road. We have seen this movie before. "I am altering the deal; pray I do not alter it any further."

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[Eugene Volokh] "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Tool for Goverment Control, and Magnitude of Bias

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 also be a dangerous tool for government control, and a section discussing the argument that they are nonetheless necessary because of the magnitude of bias within the academy.

[VII.] Tool for Government Control

So far, we have discussed the likely viewpoint-based chilling effect of viewpoint diversity rules and their likely viewpoint-based implementation by government officials—much as with the Fairness Doctrine—even when the officials are acting in perfect good faith. Even officials who are trying hard to be fair-minded and open-minded will have to choose between viewpoints that need to be represented and those that need to be omitted.

But of course, human nature being what it is, some officials won't be so fair-minded and open-minded. That too was one of the objections raised to the Fairness Doctrine: "[T]he fairness doctrine provides a dangerous vehicle—which had been exercised in the past by unscrupulous officials—for the intimidation of broadcasters who criticize governmental policy." And this too is likely to play out with regard to viewpoint diversity mandates, especially in light of "the inherently subjective evaluation of program content" that viewpoint diversity mandates are likely to involve.

Say that some prominent faculty members in a university department speak out against some federal government policy. It would be easy for the government to respond by calling for a viewpoint diversity audit of the department. "Where," the government might ask, "are the members of the department who support the challenged government policy?"

Perhaps there legitimately aren't any such members because the policy is genuinely unwise, and even a balanced department would lack faculty who support it. Or perhaps the department is in general quite diverse in its viewpoints, but the particular people who have expertise on this particular policy all happen to have the same view about it. Or perhaps even the critics of the policy have in most instances presented a diversity of views on the subject—for instance, by fairly presenting those views in their classes—but the publicly visible statement shows a homogeneity of perspectives.

Nonetheless, the department—or maybe even the whole university—will face a government investigation. Even if the investigation finds no violation of a viewpoint diversity mandate, it will have been expensive and time-consuming. To borrow from the FCC, "even if the broadcaster has, in fact, presented contrasting viewpoints, the government, at the request of a complainant, may nevertheless question the broadcaster's presentation, which in and of itself is a penalty." And as soon as the investigation is announced (regardless of what its ultimate outcome might eventually be), the message will go out to other faculty at other universities: Don't expose your universities and yourselves to the risk of being similarly targeted. Echoing D.C. Circuit Chief Judge David Bazelon's statement about the effect of the Fairness Doctrine, universities "would be forced to kowtow to the wishes of an incumbent politician."

Justice Stewart wrote, with regard to broadcasting,

Those who wrote our First Amendment put their faith in the proposition that a free press is indispensable to a free society. They believed that "fairness" was far too fragile to be left for a government bureaucracy to accomplish.

Similarly, Justice White wrote as to newspapers,

Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues. But the balance struck by the First Amendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints may not be expressed…. Any other accommodation—any other system that would supplant private control of the press with the heavy hand of government intrusion—would make the government the censor of what the people may read and know.

The same is generally true of viewpoint diversity requirements, at least as applied to conditions on general university funding.

[VIII.] Magnitude of Bias

The FCC's repeal of the Fairness Doctrine relied partly on the conclusion that the "explosive growth in both the number and types of outlets providing information to the public"—both broadcasters and the then-newly developed cable television programmers—has "allayed … the Supreme Court's apparent concern that listeners and viewers have access to diverse sources of information."

Supporters of viewpoint diversity mandates might argue that this isn't so in many universities. Here's how the argument might go: Within many university departments, faculty are overwhelmingly on the Left. Whatever diversity benefits may have been provided as to audio and video media in the 1980s by technological developments and the market, no such forces are creating a similar diversity of views within Harvard or Yale. Indeed, hiring within a university tends to lack market pressures; and because new faculty are hired by the old faculty, a department's ideological tilt is thus perpetuated or even exacerbated. {If a department is split 75%–25% in one ideological decision, then the 75% might prevail in every hiring decision, so as faculty retire or leave and are replaced by new hires, the tilt may become closer to 100%–0%.}

Even if viewpoint neutrality mandates necessarily lead to some viewpoint-based chilling effects and governmental preferences for certain viewpoints, that is justified by the need to break the ideological monopoly. First Amendment doctrine shouldn't be read as precluding this necessary corrective to the existing ideological tilt. And because it is important that students at each university be exposed to a wide range of views, it's not enough that some conservative or ideologically balanced universities exist. The government can insist that the taxpayers' investment in education be distributed in a way that maximizes the chances that all students get access to viewpoint diversity.

This, I think, has to be the argument that backers of viewpoint diversity conditions must make. But it is insufficient to justify the constitutional perils outlined in Parts V–VII. In fact, students at universities today have access to a vast range of material—books, newsletters, news sites, audio podcasts, videos, online courses, and more. That material expresses a vast range of views, and includes material by prominent academics of all ideological stripes.

To be sure, those students who choose to go to certain universities may disproportionately hear particular views in those universities' classrooms. But that is just a consequence of the freedom of speech and academic freedom that the First Amendment protects. Trying to solve this problem by placing government officials in a position to supervise which viewpoints need to be better represented—which, for the reasons given above, is an inevitable feature of a viewpoint diversity mandate—is likely to do more harm than good to freedom of discourse.

But in any event, whatever one's opinion on this particular value judgment, I hope this Essay has established a descriptive (or at least a predictive) matter: A viewpoint diversity mandate will indeed involve viewpoint discrimination in implementation, will indeed chill viewpoints that are unpopular or seen as outside the mainstream, and will indeed provide a tool for government control of faculty viewpoints.

The post "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Tool for Goverment Control, and Magnitude of Bias appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: October 16, 1898

10/16/1898: Justice William O. Douglas's birthday.

Justice William O. Douglas

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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