Hearing Dispatch: NPR Fights Trump on the First Amendment

The government doesn’t bother to argue in National Public Radio et al v. Trump et al that it isn’t kneecapping public broadcasters because it doesn’t like what they have to say. Instead, it argues that it is allowed to do exactly that. But really, it would prefer that the judge not reach the merits.

That’s the upshot of nearly two hours of oral argument during yesterday’s hearing on the two sides’ cross-motions for summary judgement. The gallery in Courtroom 8 in the E. Barrett Prettyman Courthouse in Washington, D.C. is filled mostly with members of the media—including your correspondent—scribbling intently in our notepads. Which makes sense. The freedom of all the press is, indirectly at least, at stake here. (This freedom apparently does not extend to the ability to use electronic devices for notetaking in a courtroom.) 

The executive order at the center of this dispute bears the title “Ending Taxpayer Subsidization of Biased Media,” which Theodore Boutrous, arguing for the plaintiff, points out is itself a problem for the government. The order seeks to deprive NPR (and PBS) of government subsidization by barring the Corporation for Public Broadcasting (CPB) from disbursing congressionally appropriated funds to it, including by ensuring other recipients of those funds—such as NPR member stations around the counter—don’t spend them on NPR programming either. The order further instructs the heads of federal agencies to identify or terminate any direct or indirect funding of NPR. All this blatant violation of the First Amendment, of course, will occur only “to the maximum extent allowed by law.”

The First Amendment, naturally, is where Boutros starts—saying that the relevant issues are “simple and straightforward.” (The government, later, will start with standing and leave the merits for last—suggesting those adjectives less than adequately describe its First Amendment case.) President Trump’s order, he says, is textbook viewpoint discrimination—which the D.C. Circuit has called “poison,” and which the Supreme Court has said the First Amendment’s “most fundamental protection” prohibits. He also outlines other constitutional principles: The government can’t retaliate against individuals for protected speech; it can’t do so by taking away a benefit or entitlement; and it can’t, as the Supreme Court held in its 2024 opinion in Moody v. Net Choice, “decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased.”

Un-biasing what it thinks biased, Boutros explains with the aid of a collage of President Trump’s Truth Social missives entitled “From Posts to Policy,” is exactly what this government is attempting to do. One emblematic entry in the assemblage of posts: “NO MORE FUNDING FOR NPR, A TOTAL SCAM! EDITOR SAID THEY HAVE NO REPUBLICANS, AND IS ONLY USED TO ‘DAMAGE TRUMP.’” Boutros explains that Trump then “enshrined…that antipathy” in his executive order. 

An accompanying fact sheet and press release serve as even plainer expressions of the animus the president has already made plain enough: These “official pronouncements” describe NPR as a “progressive pet project” while cataloging the administration’s objections to editorial decisions. (These decisions, on the record before the hearing, include featuring “drag queen Lil Miss Hot Mess on a program meant for kids 3-8,” refusing “to cover the Hunter Biden laptop story” and running a “Valentine’s Day feature around ‘queer animals’...in which it insisted that ‘banana slugs are hermaphrodites’ and that ‘some deer are nonbinary.”)

Usually, remarks Boutros, “if I say ‘simple and straightforward’ to the court, they say, ‘That’s what you say.” But this time the government doesn’t disagree. It doesn’t attempt to dispute that its adverse action toward NPR came as a result of protected activities, and over and over the order says that “the reason this is occurring by executive decree is to rebalance the marketplace.”

Two other significant issues arise during the plaintiffs’ presentation—appearing and reappearing throughout. One is the existence, or not, of evidence of the executive order producing an actual chilling effect. Judge Randolph D. Moss queries both NPR and its member stations and receives much the same answer: No, not yet, but the question isn’t whether NPR has changed its supposedly woke propagandist ways to please the president. It’s whether a “person of reasonable firmness” would. The attorneys argue that their clients may be unreasonably firm, but the slightly squishier have plenty of cause to consider capitulating. They may worry not only that they will cease to receive grants that keep them going if they continue to carry NPR’s content, but also that they will face licensing repercussions from a Federal Communications Commission whose chairman has already bullied ABC into pulling Jimmy Kimmel off the air—or see their tax exempt status revoked by the Internal Revenue Service. 

The next subject is standing and, relatedly, relief. Judge Moss notes that the executive order is, on some level, “a directive,” but “on some level it’s a rant.” He could declare it unlawful, and he could enjoin those it names from implementing it, but he can’t tell the president, “Stop saying you dislike NPR”—nor can he police officials who know that the president dislikes NPR from modifying their behavior accordingly. Miguel Estrada, also for NPR, argues that Judge Moss can issue an injunction that “expressly addresses any attempt” by relevant authorities in the administration “to convey by a wink and a nod” that, despite the ruling, “it’s okay to comply on their own.”

What Estrada doesn’t want is a repeat of the email Attorney General Pam Bondi sent to federal agencies after a judge temporarily blocked an executive order meant to punish a prominent law firm, purporting to comply with the decision but telling the agencies they retain “the authority to decide with whom to work”—a statement Estrada compares to Marc Antony’s “but Brutus is an honorable man.” 

This segues neatly into standing. If Congress were to pass—the fictional title is paraphrased here—the We Hate Miguel Estrada and We Want Everyone to Run Him Down in the Streets and Do What You Can to Him Act, Estrada says, “I think I’d have standing.” The arguments here are, “Have you been stoned to death yet, or are you bleeding enough?” The government, Estrada says, also attempts to argue that the executive order doesn’t cause harm sufficient to create standing because it is the equivalent of a Truth Social post (which is “an interesting way to look at orders of the branch you work for”). Its point “reduces to the proposition” the order lacks specific mechanisms of “how you will be stoned and chased down in the streets.” 

But no executive order actually does that, argues Estrada, and that also isn’t how this administration operates. To the contrary, the president “can tweet in the middle of the night, ‘Hey, Pam, I think it’d be a good idea if you indicted this person,’ and, who knows, maybe Pam will do it.” So, the government may say that any harm is hypothetical, “But is it?” NPR, Estrada points out, was in this courtroom a month or so ago because the outlet had reason to think that “harm, far from being speculative, had begun to occur.” NPR claimed the CPB was inflicting that harm by yanking a contract that sustained a satellite network of stations, and ultimately NPR won a settlement in which CPB acknowledged the order was unconstitutional and agreed not to enforce it. NPR did that by spending money and coming to court to litigate their rights. 

By the way—this in response to a question from Judge Moss that also preempts a point the government will end up making—now that the CPB litigation has been resolved, the case isn’t moot. Pointing to other cases as comparators, Estrada says that in this one the government hasn’t struck an offending ordinance, or taken a citizen off the no-fly list, or altered the number of people who can congregate in a church during a pandemic. And even if the government had said, “Okay, we will stop sinning”—and it hasn’t—his side would still be entitled to assurance that they won’t do it again. The CPB (following this fall’s recessions) may now be a skeleton, but it’s still a “creature of statute.” What would happen if the president woke up one day and appointed “Stephen Miller, Candace Owens and a third party of your choosing” to lead it? 

(NPR also references a music grant that the National Endowment for the Arts (NEA) failed to renew prior to the new policy but after all the angry posts, and then symbolically canceled one day after the executive order was issued even though it had already been paid out for its final year. NPR didn’t apply for the grant this year “as a matter of futility,” and Estrada argues that it doesn’t matter whether NPR actually applies for a grant and is actually denied.) 

The executive order, NPR has argued in sum, constitutes uncloaked viewpoint discrimination prohibited under the First Amendment, and this viewpoint discrimination is causing real and redressable injury. Simple and straightforward as the First Amendment issues may be, says Estrada, the justiciability arguments the government has put forth are perhaps even simpler.

The government’s case centers not on the merits of its case but rather on the idea that Judge Moss need not address those merits at all. The lawyer for the government—a young man named Alexander Resar—claims that the CPB settlement does indeed render the case moot. But his position that it’s irrelevant whether the United States agrees itself to be bound by the agreement is, as Judge Moss notes, is “a remarkable proposition coming from the Department of Justice, given the position the Department of Justice has taken in other cases” that entities like the CPB are part of a unitary executive wherein the president can do whatever he wants. Unless, of course, counsel for the government is disavowing that theory. (He is not.)

The government gets into another tangle asserting that the plaintiffs also don’t have standing to challenge the section of the order that stops agencies from giving any money at all to them. Blocking the order, the administration argues, wouldn’t resolve the harm of an NEA grant that was discontinued pursuant to negative statements from the bully pulpit rather than the order itself. Judge Moss says that an order that agencies can’t discriminate against NPR, however, might address that harm.

That’s when the government puzzlingly replies that an order directing agencies not to discriminate comes very close to a “follow the law” injunction—which isn’t necessarily in conflict with an executive order that includes the phrase “consistent with applicable law.”

Judge Moss gives precisely the response a logical person would expect: “If it’s not a problem for me to issue an order saying you can’t discriminate against NPR, we can all go home now. But you think it’s okay for the president to do that.” To which the government replies, “Yeah.”

Which brings us, finally, to the merits. The precise point the government is seeking to make is that the government can discriminate when it is engaging in government speech—and it is also seeking to make the point that its funding (or not) of NPR via CPB constitutes government speech. Citing a case involving PETA’s attempts to participate in a D.C. program showcasing elephant and donkey statues by submitting a design of a “sad, shackled circus elephant with a trainer poking a sharp stick at him,” counsel insists that the D.C. Circuit has said that “when the government is a patron of the arts, it is engaging in government speech.”

“That can’t possibly be right,” says Judge Moss. “That doesn’t seem to come close to the standard for government speech.”

“Government funding is simply different,” the government continues to insist. Imagine that Health and Human Services gives a grant to promote news about the harmful side effects of vaccines. This eventual winner of the next presidential election vociferously criticizes the grant on the campaign trail. Once in office, he cuts funding for what he believes is a harmful use of taxpayer dollars. Unfortunately for the government, this hypothetical prompts Judge Moss to ask—understandably, given restrictions on speech usually must survive strict scrutiny to show they serve a compelling government interest—what NPR is doing that is harmful in that way? The executive order, the government says, states that bias is harmful and so is the government funding news at all.

But, objects Judge Moss, the executive order doesn’t say “we want to get out of the news business.” It says we want to get out of the business of funding CPB, because CPB funds NPR. “It’s like saying we’re going to stop paying the salaries of all Democratic members of Congress because we want to get out of the business of funding salaries of members of Congress,” adds the judge. 

The rest of the government’s presentation on the merits is a series of other ostensible reasons the government doesn’t have to fund speech that it believes is bad for the American people. The distinction between content discrimination, as with indecency statutes, and viewpoint discrimination is “a fairly fine law to draw.” (“Is it?” asks Judge Moss.) Withholding grant funding isn’t retaliation because the government has to be discerning when deciding among applicants. (“This says no funding whatsoever. That’s the title of the EO,” Judge Moss points out.) And, again, an order not to discriminate would amount to a fairly meaningless “follow the law” injunction. (“What about where the challenged action is one that says ‘do discriminate’?”)

The purpose of the Public Broadcasting Act, NPR stresses in its rebuttal, was to foster the opposite of government speech, by carving out space independent of state interference. Congress sought to bolster freedom of thought and imagination by forming the National Endowment for the Arts; Congress didn’t say, “we want you to do art for the government.” The plaintiffs today aren’t saying that “from Day One” NPR has a right to funding. They’re saying that, when a program was created to foster private speech, the government can’t turn around and discriminate based on viewpoint to retaliate against those with whom it disagrees. 

The next blow, this one from Estrada, is more acute: The phrase “to the extent permitted by law” could save an overbroad order with a core of permissible applications. But, because the whole statute is discriminating on the basis of ideology, “the core here is a null set.” “There is no part of the order that can be saved.” 

What, besides punishment of a politically disfavored entity, is the government hoping to achieve? And who or what—that entity, the arts as a whole, the arts-enjoying public—is it hurting along the way? The NEA grant to NPR that was canceled one day after the executive order was issued, NPR points out, was “for music,” period. That’s the language from the document itself. Not “Trotsky’s music,” says Estrada. Not “Stalin’s best hits.” Just music. 

With that, the hearing comes to a close. We listeners pack up our notebooks, walk out into the evening and prepare—in all our reasonable or unreasonable firmness—to write.