from the wolf-in-wolf’s-clothing dept
When NPR sued Donald Trump Tuesday, it had an easy argument to go with. Normally, in First Amendment retaliation cases against the government, you have to pull together a bunch of disparate strands to prove the retaliatory intent of the actions. But as NPR noted in its filing, and as Justice Scalia once wrote about obvious constitutional violations: “this wolf comes as a wolf.” Trump’s executive order cutting public media funding doesn’t even pretend to hide its retaliatory nature — it literally calls NPR and PBS “biased media” in the title.
Republicans have been gunning for public media for decades, but historically, every time Congress tries to cut funding, outcry from their constituents is so overwhelming that nothing ever happens. It turns out tons of people (including Republican voters) actually like NPR and PBS. But Trump skipped Congress entirely and simply declared that public media wouldn’t be receiving any more federal funding — because he thinks their coverage hurts his feelings.
Federal funding for public media is already a bit confusing because very little of it actually goes directly to NPR and PBS. The funding mostly goes to local affiliates, many of which then do use it to purchase syndicated programming from NPR and PBS.
NPR’s complaint is refreshingly straightforward: this is textbook viewpoint discrimination that violates the First Amendment, separation of powers, and due process. As the lawsuit notes, the Supreme Court made clear just last year (in the Moody v. NetChoice case) that “it is no job for government to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks biased.”
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox” in matters of politics or opinion. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). As the Supreme Court reiterated just last year, “it is no job for government to decide what counts as the right balance of private expression— to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.” Moody v. NetChoice, LLC, 603 U.S. 707, 719 (2024). These fundamental First Amendment principles apply in full force in the context of public media and doom Executive Order 14290, which expressly aims to punish and control Plaintiffs’ news coverage and other speech the Administration deems “biased.” The Order also violates due process, the Separation of Powers and the Spending Clause of the Constitution. See U.S. Const. Art. I, § 8, cl. 1. It cannot stand.
What makes this case so obvious is that Trump hasn’t even tried to hide the retaliatory motive (because he doesn’t realize it’s unconstitutional and doesn’t much care about that). The executive order and accompanying materials openly attack NPR’s editorial choices:
On May 1, 2025, President Trump issued Executive Order 14290, entitled “Ending Taxpayer Subsidization of Biased Media” (the Order), 90 Fed. Reg. 19415, which contradicts these statutory precepts and violates the Constitution. Contrary to Congress’s intent to support an independent public radio and television system, and statutory requirements that expressly shield the Corporation and entities like Plaintiffs from governmental interference, the Order directs federal agencies as well as the Corporation to withhold all federal funding from NPR and the Public Broadcasting Service (PBS). The Order further directs the Corporation to “cease indirect funding to NPR and PBS” by mandating that local radio and television stations that receive grants from CPB, like the Local Member Stations, not use those federal funds to acquire NPR or PBS programming, and by revising existing grant agreements to prohibit grantees “from funding NPR or PBS.”…
It is not always obvious when the government has acted with a retaliatory purpose in violation of the First Amendment. “But this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). The Order targets NPR and PBS expressly because, in the President’s view, their news and other content is not “fair, accurate, or unbiased.” Order § 1. And the “Fact Sheet” and press release accompanying the Order, which echo prior statements by President Trump and members of his Administration, only drive home the Order’s overt retaliatory purpose. They deride NPR’s content as “left-wing propaganda,” and underline the President’s antipathy toward NPR’s news coverage and its editorial choices. See “Fact Sheet: President Donald J. Trump Ends Taxpayer Subsidization of Biased Media” (May 1, 2025) (asserting that NPR published articles “insist[ing] COVID-19 did not originate in a lab” and “refused to cover the Hunter Biden laptop story”); 1 Press Release, “President Trump Finally Ends the Madness of NPR, PBS” (May 2, 2025) (asserting that NPR “apologized for calling illegal immigrants ‘illegal’”).
It’s a bit surprising that PBS and NPR aren’t suing together, though the news side of NPR reports that PBS is looking into suing:
PBS is not a party to the lawsuit. The television network issued a statement Tuesday morning saying, “PBS is considering every option, including taking legal action, to allow our organization to continue to provide essential programming and services to member stations and all Americans.”
NPR also notes that the case has been assigned to the same judge, Randolph Moss, who is handling a different, but similar lawsuit, in which the Corporation for Public Broadcasting had sued Trump after he tried to fire a bunch of its board members.
Look, you can argue the federal government shouldn’t fund any media (though that would devastate rural communities that rely on public broadcasting). But even if that’s your position, such decisions belong to Congress, not a president with hurt feelings. And they absolutely cannot be made based on viewpoint discrimination.
Trump managed to violate both principles simultaneously — casually torching separation of powers while engaging in the kind of obvious retaliation against media that would be more fitting in authoritarian countries with dictators Trump admires. NPR’s lawsuit should be a slam dunk, assuming we still have courts willing to enforce the Constitution when it’s inconvenient for presidents.
Filed Under: 1st amendment, donald trump, funding, public media, retaliation, separation of powers, viewpoint discrimination
Companies: cpb, npr, pbs
