NPR sues the Trump administration, a wolf not in sheep’s clothing

There’s a wonderful turn of phrase in the lawsuit NPR and some of its member stations filed this morning against Donald Trump — one that would survive a round of edits with any All Things Considered producer. 

“It is not always obvious when the government has acted with a retaliatory purpose in violation of the First Amendment,” NPR’s lawyers write. “But this wolf comes as a wolf.” 

The brief is quoting Antonin Scalia, from his dissent in 1988’s Morrison v. Olson, a case on the constitutionality of a federal independent counsel. Scalia was the 1 in a 7–1 decision that found the office constitutional. Scalia argued that an independent counsel was an unlawful limitation of the presidential power to prosecute federal crimes, which he considered total: “the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue.” Were a president to ever abuse that absolute power, he argued, Congress could impeach him or voters could turn him out of office. And thus, checks and balances, Q.E.D. Scalia wrote that such separation-of-powers questions often arrived at the Supreme Court “clad, so to speak, in sheep’s clothing” — disguised as a case about something else. Not this time, he wrote: “But this wolf comes as a wolf.” Scalia’s dissent in Morrison was an early brick in the construction of conservatives’ unitary executive theory, the idea that there are no practical limits to the power a president holds over the entire Executive Branch. Trump has spent the first months of his second term pushing that argument to its limits, proclaiming that there is no one he can’t fire, no norm that he can’t breach. In the world of public media, he holds that he can fire board members of the Corporation for Public Broadcasting, despite it being a private nonprofit organization that does not answer to the White House. It means he thinks he can, with the stroke of his pen, eliminate all federal funding to NPR and PBS — funding that was appropriated by Congress. So it’s more than a little cheeky for NPR’s attorneys1 to quote Antonin Scalia — arguing that presidential power is absolute! — in a lawsuit arguing that, no, there are things a president shouldn’t be allowed to get away with. NPR — along with Colorado Public Radio, Aspen Public Radio, and KSUT, which serves federally recognized tribes in the Four Corners region — is suing the Trump administration over his May 2 executive order, as he put it, “Ending Taxpayer Subsidization of Biased Media.” Throughout his first term in office, Trump repeatedly called for the defunding of public media, zeroing out CPB in each of his budgets. But each time, Congress declined to kill a popular program. So this time, Trump is trying to skip the middleman — a.k.a., an entire branch of government — and do it by executive order. In its filing, NPR argues that Trump is violating the First Amendment by trying to eliminate its funding because of its speech. Trump’s executive order defends his action by arguing “neither [NPR nor PBS] presents a fair, accurate, or unbiased portrayal of current events to taxpaying citizens,” instead offering “biased and partisan news coverage.” (The plainness of Trump’s motivation is what inspired the Scalia cite; this wolf hasn’t bothered to play dress-up.) The Order is unlawful in multiple ways. It flatly contravenes statutes duly enacted by Congress and violates the Separation of Powers and the Spending Clause by disregarding Congress’s express commands. It also violates the First Amendment’s guarantees of freedom of speech and of the press. The Order’s objectives could not be clearer: the Order aims to punish NPR for the content of news and other programming the President dislikes and chill the free exercise of First Amendment rights by NPR and individual public radio stations across the country. The Order is textbook retaliation and viewpoint-based discrimination in violation of the First Amendment, and it interferes with NPR’s and the Local Member Stations’ freedom of expressive association and editorial discretion. This is an “egregious form of content discrimination,” an assault on the First Amendment that is “all the more blatant.” In the words of the D.C. Circuit, such “viewpoint discrimination is poison.” A Trump spokesman issued a statement saying “the President is exercising his lawful authority to limit funding to NPR and PBS” because they are “creating media to support a particular political party on the taxpayers’ dime.” That’s not exactly a vigorous defense against claims of viewpoint discrimination. Somewhere, Big Bird sheds a single tear. While government officials have their own right to speak and to “do so forcefully,” they cannot “use the power of the State to punish or suppress disfavored expression.” In particular, “the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.” Yet retaliation is the Order’s plain purpose. The Order’s text and the materials that accompanied it make unmistakably clear that the Order is intended to — and does — retaliate against NPR because of its protected speech.