It’s still a free country. If NPR wants free speech, it can have it — just not on the public’s dime without the public’s consent.

David French told MSNBC that Congress voting to defund NPR is an emblem of “a comprehensive attack on free speech that is maybe most reminiscent of the Red Scare.” Now, leave aside the risible idea that free speech in law and culture in this country is in worse shape than it was four or five years ago. There are certainly sound reasons to be worried that the Trump administration is abusing its powers to retaliate against critics in some areas, such as targeting entire law firms just because they previously employed an enemy of Trump. But the specific case of NPR just doesn’t belong in this discussion.

As a legal matter, it makes all the difference in the world that National Public Radio’s budget is being cut by Congress, not by executive action. As was true in Disney’s losing legal fight with Ron DeSantis, and is likely to be true again in Planned Parenthood’s lawsuit against its defunding by Congress, long-standing precedents set a very high bar for First Amendment claims of viewpoint discrimination and retaliation when those decisions are made on a facially neutral basis by a legislature. That’s partly a practical recognition of the difficulty of digging into the motives of a legislative body and partly a recognition that the specific risk of pretextual retaliation by an executive is greater than when the whole community’s representatives vote. Of course, it’s true in a sense that defunding NPR isn’t facially neutral because Congress didn’t at the same time defund federally taxpayer-funded conservative media outlets. That’s because there are none to defund.

Which brings us to the broader cultural point: so long as NPR is publicly funded, its speech is not “free speech” in the way we think of individual liberty — it is government speech. Claiming a First Amendment right, or even a free-speech cultural value, for the left to retain a permanent claim to taxpayer subsidies for one viewpoint is an argument that dissolves on close inspection, just as is the case with French’s similar position regarding public school curricula. Consider two basic questions.

First, is there a problem with viewpoint discrimination in funding speech or only with defunding it? Why is it a free speech problem when Congress decides to stop funding a one-sided outlet that represents a particular viewpoint, but not a free speech problem when Congress chooses to fund only a one-sided outlet that represents a particular viewpoint? If the problem runs only one way, you have an issue of entrenchment, where the government is unable to undo today what it has once done by the same means. Is it really the case that today’s Congress is totally free to fund Trump Public Radio to blast 24/7 MAGA propaganda, and tomorrow’s Congress would stand enjoined from viewpoint discrimination for determining that this is a poor use of public funds?

Second, who decides? The negative power of the purse is supposed to be the most basic and absolute power of Congress: simply to not fund things that the most recently elected House of Representatives dislikes. The fallacy here is that if Congress doesn’t decide what speech is on NPR, that speech is “free.” But of course, it is not free. NPR has a programming schedule, editorial standards, and editorial direction and points of view. The people who make all of those decisions have publicly funded salaries, just as do public schoolteachers and public librarians and drill sergeants and ambassadors. Their decisions are still government decisions — but unlike the decisions of Congress, they are not accountable to voters. So the real question here is not whether government will control speech, but whether voters or permanent government functionaries will control government speech. This was the question William F. Buckley Jr. asked about academic freedom in 1951, and it’s the question asked by today’s New Republicanism: Have we left too many important powers and decisions in the hands of what amounts to a self-selecting, self-perpetuating aristocracy that is accountable neither to voters nor to free markets, and is therefore immune from the judgment of the common man?

It’s still a free country. If NPR wants free speech, it can have it — just not on the public’s dime without the public’s consent.