National Public Radio is suing Donald Trump in federal court in D.C. to prevent the Trump administration from defunding NPR.

National Public Radio is suing Donald Trump in federal court in D.C. to prevent the Trump administration from defunding NPR. NPR protests loudly when its funding is examined by Congress that public money is only a small part of its financing, yet now, it alleges in court that losing that money “threatens the existence of a public radio system that millions of Americans across the country rely on for vital news and information” because 31 percent of NPR’s revenue comes from licensing fees from local affiliates, who are publicly funded. “The sudden loss of all federal funding,” the complaint declares, “would be catastrophic to NPR” and “without federal funding, NPR would need to shutter or downsize collaborative newsrooms and rural reporting initiatives and, at the same time, also eliminate or scale back critical national and international coverage that serves the entire public radio system and is not replicable at scale on the local level. Loss of all revenue from local public radio stations would dramatically harm NPR’s ability to execute its journalistic mission.” So much for all the years of denials by NPR that it is a public charge.

The complaint’s five causes of action start with a claim that only Congress, not the president, can decide whether to fund it — a separation of powers question that will largely turn on the language of its enabling statute. NPR’s lawyers, led by conservative eminence Miguel Estrada, make the best they can of that argument. There’s also a due process claim, which only comes into play if the court decides that the executive branch can defund NPR but only for cause — after all, if this is a matter within the president’s discretion, there’s no process required. That said, NPR’s argument in this regard is less about a permanent right to funding than about the immediate removal of funding without adequate notice, and there is at least an argument from basic fairness that NPR has entered into contracts in reliance on this year’s funding.

The other three legal claims, however, assert that Trump is discriminating or retaliating against NPR in violation of the First Amendment. This is nonsense. There is no First Amendment right for media organizations to be on the public payroll in the first place, and anyone who receives government money to deliver a message can constitutionally be required to sing the government’s tune or lose its funding. As Chief Justice William Rehnquist’s opinion for the the Court observed in Rust v. Sullivan (1990), in upholding regulations barring publicly funded family planning funds from being used to promote abortion or make abortion referrals:

To hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals because the program, in advancing those goals, necessarily discourages alternate goals would render numerous government programs constitutionally suspect. When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles,…it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as Communism and Fascism. Petitioners’ assertions ultimately boil down to the position that, if the government chooses to subsidize one protected right, it must subsidize analogous counterpart rights. But the Court has soundly rejected that proposition….[W]hen the government appropriates public funds to establish a program, it is entitled to define the limits of that program. [Emphasis added; citations omitted.]

Moreover, the Founders understood that de facto government subsidies were a government favor for partisan newspapers that could and regularly were withdrawn when the government changed hands — a practice often deployed through public printing contracts for the State and Treasury Departments or for Congress itself. It would have shocked them to suggest that, say, an incoming Democratic administration was required to continue paying Federalist scandal-mongers to attack the administration simply because they had previously been hired by people who favored their viewpoint. NPR’s theory would create a one-way ratchet in which the government is permitted to hire and fund based on viewpoint discrimination, but then cannot fire or defund when an intervening election changes the government’s viewpoint to reflect that of the voters.