In public, the Trump administration is on the attack against the media by launching investigations, restricting press access in government buildings and creating websites slamming critical news coverage of the president.
In court, the administration finds itself increasingly on the back foot. The New York Times filed a lawsuit against the Pentagon's new press policy Thursday. By that afternoon, NPR was in court at a pivotal hearing arguing that the administration had broken the law with its treatment of public media.
At a key court hearing in Washington, D.C., NPR's lawyers accused President Trump of acting illegally on May 1 when he issued an executive order demanding an end to all federal subsidies for NPR and PBS. The president's order and materials that accompany it accuse the public broadcasters of ideological bias, in NPR's case, due to its news coverage. The networks deny this.
"The executive order flagrantly violates NPR and its member stations' First Amendment rights," NPR's lead trial attorney, the noted free speech lawyer Theodore J. Boutrous, argued in court. "He's not making any secret of his views."
Under the Constitution, the U.S. government cannot discriminate against people on the basis of the views they express; for news outlets, this extends to news coverage.
As Boutrous noted in court, Trump's executive order is titled: "Ending Taxpayer Subsidy of Biased Media." In it, Trump stated: "Which viewpoints NPR and PBS promote does not matter. What does matter is that neither entity presents a fair, accurate, or unbiased portrayal of current events to taxpaying citizens."
Federal lawyers say Trump's motivation includes reasons beyond coverage
The summary judgment hearing represented an opportunity for each side to shape the contours of a trial, should the presiding judge order one. It was also a chance for the opposing legal teams to try to convince the judge he could issue a ruling granting their side victory without one.
In court filings and during Thursday's hearing, the Justice Department team representing Trump and other federal officials named as defendants did not dispute that the president acted because he believed NPR and PBS were biased.
But the lead trial attorney for the federal government, Alexander Resar, noted that Trump had also cited the desire to stop funding media outlets altogether. And he argued at the hearing that NPR had not suffered true damage as a result of the edict.
Over the summer, Trump successfully pushed Republicans in Congress to pull back all future federal funding already approved for public media on a party-line vote - $1.1 billion in all. While that money represents a small fraction of NPR's budget and a modest part of PBS' revenues, it can be critical to public broadcasting stations. Since the passage of that law, many have announced layoffs and programming cuts.
That was not as a result of Trump's executive order, Resar noted.
A skeptical judge
The presiding U.S. district court judge, Randolph D. Moss, seemed skeptical. "You'd be on much firmer ground if the president had simply said, 'We just want to get out of the news business."
The National Endowment for the Arts canceled a grant for NPR that had already been disbursed to the network, simply to make the point they were in line with Trump's decree, Moss said.
For more than a half-century, most federal money for public media has been funneled through the non-profit Corporation for Public Broadcasting, which has a bipartisan board whose members are nominated by the president and confirmed by the U.S. Senate. CPB has become a shadow of its formal self, run by a skeleton crew since the pullback of federal funding.
The three stations that have joined NPR as plaintiffs in the suit capture the appeal and reach of the broader public radio system: the statewide Colorado Public Radio, which is based in Denver; Aspen Public Radio which broadcasts throughout the Roaring Fork Valley; and KSUT, originally founded by the Southern Ute Indian Tribe and now serving four federally recognized tribes in the Four Corners region in Arizona, Colorado, New Mexico and Utah.
CPB sued Trump last spring when he sought to fire board members. Yet evidence surfaced this fall that CPB had scrambled behind the scenes in April to appease a top White House budget official. According to sworn testimony from a CPB executive, the official spoke of her disdain for NPR and warned the corporation's chairperson not to "throw the baby out with the bathwater."
Within a day, a senior CPB executive told NPR it would not receive a multi-year contract worth $35.9 million to provide satellite distribution of content to public radio stations. Its board had authorized the agreement just two days earlier, according to court filings.
Judge Moss had explicitly told the CPB's lawyers that he did not find their defenses for the reversal credible. And CPB ultimately settled NPR's suit over the issue for the full amount and an agreement not to enforce Trump's order banning money for the network.
Moss challenged some arguments made by the legal team for NPR and three Colorado public radio stations that joined its suit, drilling down to determine what specific remedy they were seeking.
Government deflects judge's suggestion
The judge also appeared to offer the government a way out for a major part of the case, dangling the prospect that it might enable him to avoid ruling that Trump's executive order was illegal.
Moss suggested that the U.S. government could formally agree that the CPB settlement with NPR was binding on the federal government too - that it would never seek to prevent CPB from sending money to the radio network if federal subsidies were to be somehow restored. In the absence of such a binding promise, Moss suggested, the president could easily undo the settlement someday, given his assertion that he can fire the board of the CPB. Moss repeatedly pointed to the claims of Trump's advisers that the powers of the executive branch reside in the president, often called the "unitary executive" theory.
Resar, the U.S. Justice Department attorney representing Trump and the government, said he was not prepared to accept such a resolution. Given the opportunity, he did not contest that the government was arguing Trump does has the power to force the overturning of CPB's deal. Similarly, the federal lawyer did not challenge the idea that the government was defending Trump's ability to order the cancellation of an institution's federal funding because he does not like what it has to say.
Judge Moss is expected to issue a ruling in the case soon.
Disclosure: This story was reported and written by NPR media correspondent David Folkenflik. It was edited by Deputy Business Editor Emily Kopp and Managing Editors Vickie Walton-James and Gerry Holmes. Under NPR's protocol for reporting on itself, no NPR corporate official or news executive reviewed this story before it was posted publicly.
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