By Dan McLaughlin
Tuesday, May 27, 2025
National Public Radio is suing Donald Trump in federal court in D.C. to prevent the
Trump administration from defunding NPR. NPR protests loudly when its funding
is examined by Congress that public money is only a small part of its
financing, yet now, it alleges in court that losing that money “threatens the
existence of a public radio system that millions of Americans across the
country rely on for vital news and information” because 31 percent of NPR’s
revenue comes from licensing fees from local affiliates, who are publicly
funded. “The sudden loss of all federal funding,” the complaint declares,
“would be catastrophic to NPR” and “without federal funding, NPR would need to
shutter or downsize collaborative newsrooms and rural reporting initiatives
and, at the same time, also eliminate or scale back critical national and
international coverage that serves the entire public radio system and is not
replicable at scale on the local level. Loss of all revenue from local public
radio stations would dramatically harm NPR’s ability to execute its
journalistic mission.” So much for all the years of denials by NPR that it is a
public charge.
The complaint’s five causes of action start with a claim
that only Congress, not the president, can decide whether to fund it — a
separation of powers question that will largely turn on the language of its
enabling statute. NPR’s lawyers, led by conservative eminence Miguel Estrada,
make the best they can of that argument. There’s also a due process claim,
which only comes into play if the court decides that the executive branch can
defund NPR but only for cause — after all, if this is a matter within the
president’s discretion, there’s no process required. That said, NPR’s argument
in this regard is less about a permanent right to funding than about the immediate
removal of funding without adequate notice, and there is at least an
argument from basic fairness that NPR has entered into contracts in reliance on
this year’s funding.
The other three legal claims, however, assert that Trump
is discriminating or retaliating against NPR in violation of the First
Amendment. This is nonsense. There is no First Amendment right for media
organizations to be on the public payroll in the first place, and anyone who
receives government money to deliver a message can constitutionally be required
to sing the government’s tune or lose its funding. As Chief Justice William
Rehnquist’s opinion for the the Court observed in Rust
v. Sullivan (1990), in upholding regulations barring publicly funded
family planning funds from being used to promote abortion or make abortion
referrals:
To hold that the Government
unconstitutionally discriminates on the basis of viewpoint when it chooses to
fund a program dedicated to advance certain permissible goals because the
program, in advancing those goals, necessarily discourages alternate goals
would render numerous government programs constitutionally suspect. 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. Petitioners’ assertions ultimately boil down
to the position that, if the government chooses to subsidize one protected
right, it must subsidize analogous counterpart rights. But the Court has
soundly rejected that proposition….[W]hen the government appropriates public
funds to establish a program, it is entitled to define the limits of that
program. [Emphasis added; citations omitted.]
Moreover, the Founders understood that de facto
government subsidies were a government favor for partisan newspapers that could
and regularly were withdrawn when the government changed hands — a practice
often deployed through public printing contracts for the State and Treasury
Departments or for Congress itself. It would have shocked them to suggest that,
say, an incoming Democratic administration was required to continue paying
Federalist scandal-mongers to attack the administration simply because they had
previously been hired by people who favored their viewpoint. NPR’s
theory would create a one-way ratchet in which the government is permitted to
hire and fund based on viewpoint discrimination, but then cannot fire or defund
when an intervening election changes the government’s viewpoint to reflect that
of the voters.
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