Big Bird Fights Back

This is the second night in a row that I’ve had a piece run longer than usual. Tonight’s post is about a single case, a new one involving National Public Radio, and despite the press of everything else that’s going on, I think it’s critically important to understand the details. This post lays out the facts, the legal claims made by NPR and local stations, and the relief they’re seeking in the courts. As a reader commented on last night’s post, “Be informed, not overwhelmed”—words I’ve also adopted as my motto during the months since the election. So, with apologies again for the amount I’m asking you to read tonight, here we go.

Since his return to office, Donald Trump has launched an attack on truth worthy of George Orwell’s 1984. On May 1, 2025, he signed an executive order that purports to end the funding for the Corporation for Public Broadcasting (CPB), and he ordered all federal agencies to stop funding for National Public Radio (NPR) and the Public Broadcasting Service (PBS). When Trump signed that order at the beginning of May, it came as something of a shock, although it shouldn’t be a surprise given this president’s antipathy towards news and facts.

You’ll note the name of the EO, “ENDING TAXPAYER SUBSIDIZATION OF BIASED MEDIA.” Very Trumpian. But political rhetoric aside, the core issue here is about Congress’ spending power. Trump’s too-cute-by-half attempt to bring this power within the scope of the Article II powers the Constitution assigns to the president by ordering executive branch agencies not to send any funds to these two news organizations (because they’ve offended him by telling the truth) isn’t going to work. These days, I’m not always confident about outcomes in the courts, or to put a fine point on it, the Supreme Court, even on clear constitutional issues. But not so here.

On May 27, 2025, NPR and three of its Colorado-based member stations filed a lawsuit in federal court in the District of Columbia against President Trump and his administration, challenging Executive Order 14290. And it’s a winner.

Here’s some of the background the complaint provides:

• Congress enacted the Public Broadcasting Act of 1967 to create an infrastructure for public radio and television programming that would serve the fundamental purpose of the First Amendment—fostering an engaged and informed citizenry.

• As part of the Act, Congress appropriated funding to support independent public broadcasting that, shepherded by the Corporation for Public Broadcasting, which is a private entity, shields entities like NPR and its local member stations from “extraneous interference and control.”

• The Public Broadcasting Act expressly prohibits departments, agencies, officers, or employees of the United States from exercising any direction, supervision, or control over public telecommunications or over the Corporation or its grantees.

If you’ve been playing along with this great game of democracy, three branches of government, and separation of powers, you already know that Congress controls the spending power and the executive branch is limited to executing the laws they enact. This is the fulcrum Trump is trying to alter with his full-throated expansion of an imperial presidency that assumes the powers meant for the other branches of government. But beyond the clear violation of those roles, Trump’s EO raises a more fundamental question: Why? Why would an American president want to not just interfere with but eviscerate cherished American traditions like NPR and PBS. Getting away with murdering an unnamed person on Fifth Avenue is one thing, but killing off Sesame Street? There are moments when I don’t understand how a single person who voted for this man doesn’t regret their vote, seeing what he’s done since being reelected, and this is one of them. (Thank goodness, unsuccessfully. Word is Netflix has stepped in).

After walking through the funding mechanisms for NPR, the complaint outlines how NPR and its member stations operate and decide what stories to air. NPR is not a public radio station, nor does it operate as one. It is an independent, nonprofit media organization that produces, acquires, and distributes programming to independently locally owned and operated public radio stations across the country. NPR member stations pay a membership “core fee” to license certain NPR content. Member stations acquire NPR content for a number of reasons, including local audience interest, the needs of their communities, the cost of acquiring such programming, and their own journalistic and editorial judgments about the quality of NPR’s programming. These local stations provide vital connections for rural communities because in many rural areas, NPR member stations are the only free providers of local and national news. Importantly, NPR prohibits employees connected with news coverage from making contributions to political campaigns or referendums and requires editorial staff to adhere to stringent ethics policies.

Since Trump’s first term in office, he has repeatedly expressed his disagreement with the editorial decisions reflected in the speech and viewpoints of NPR and PBS programming. In January of 2020, Trump condemned NPR as a “big government, Democrat Party propaganda operation.” In April 2025, Trump wrote on social media that: “REPUBLICANS MUST DEFUND AND TOTALLY DISASSOCIATE THEMSELVES FROM NPR & PBS, THE RADICAL LEFT ‘MONSTERS’ THAT SO BADLY HURT OUR COUNTRY!” That’s just one example.

Then, DOGE entered the chat. On April 28, 2025, the administration claimed it fired three CPB board members. In an email sent by the White House’s deputy director of presidential personnel, the White House tried to take control of the CPB, despite Congress’ explicit prohibition. Next, DOGE officials emailed the remaining two board members and asked for a meeting to “discuss getting a DOGE team assigned to the organization.”

It’s outrageous, even in a time of outrage fatigue. We are living through an era of horribles. People are being deported without due process. FEMA benefits are being taken away from North Carolina, a state that, coincidentally, voted to elect Democrats in the 2024 elections. People have died because USAID programming has been shuttered. So pulling funding from public broadcasting might not seem like the worst thing that has happened. But attacking the First Amendment goes to the very core of our ability to learn the truth about what is happening. That’s what makes it so dangerous and is undoubtedly the reason Trump is doing it.

The lawsuit explains Trump’s justification for the executive order like this: It alleges that the CPB has failed to follow the guideline that it must not “contribute to or otherwise support any political party” by subsidizing NPR and PBS because, according to the administration, they don’t present a fair, accurate, unbiased portrayal of current events. According to the executive order, NPR and PBS are “biased and partisan news coverage,” undeserving and ineligible for federal taxpayer funding. A “fact sheet” and press release accompanying the order allege that “NPR and PBS have fueled partisanship and left-wing propaganda with taxpayer dollars,” and lists the news and editorial choices with which the president disagrees, ranging from coverage of the Covid-19 pandemic to content featured on Valentine’s Day. You get the point.

The order has already impacted operations. One day after it was signed, the National Endowment for the Arts (NEA) withdrew a grant from NPR. The complaint alleges that the EO puts NPR and its member stations on notice that if the government disapproves of editorial choices, it will exercise as much power as it can claim for itself to retaliate for the programming they air.

This is how dictators disguise themselves in the clothing of democracy. Sure, there’s a First Amendment still in place. But the president tries to get around it by threatening to pull essential funding and claiming he’s protecting taxpayers, not restricting speech. The executive order is intended to create an environment of fear where public media “voluntarily” avoids drawing even close to the line of anything that might offend. Censorship, accomplished with the stroke of a pen. Just like the administration has tried to bring universities and law firms, protectors of the First Amendment, in line with its views, they’re doing it again here to NPR and PBS.

But not so fast.

The complaint offers the following legal arguments to support the conclusion that the executive order is unconstitutional. Any one of them alone could suffice for the courts to reject Trump’s ploy. All taken together, given the factual backdrop, it’s a compelling argument for the courts to accept.

• Separation of Powers Violation

The President’s EO exceeds his constitutional power, which is to implement laws Congress passes. His power must stem from either an act of Congress or the Constitution itself. Here, in the Public Broadcasting Act, Congress expressly prohibited a president from doing what Trump has done, forbidding the executive branch from “exercising any direction, supervision, or control over” public communications or the CPB. The plaintiffs argue that the EO should be struck down because it violates the Separation of Powers and Spending Clause of the Constitution.

• First Amendment Violation

Trump’s EO violates the First Amendment in multiple ways. Among them:

· Retaliation

The complaint points out that while it isn’t always obvious when the government is acting with a “retaliatory purpose” in violation of the First Amendment, “this wolf comes as a wolf.” The complaint alleges that the order unequivocally acts to “use the power of the State to punish or suppress disfavored expression.”

To demonstrate retaliation, a plaintiff must show that it (1) engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action to deter someone in the plaintiff’s position from speaking again; and (3) a causal link between the constitutional right and the adverse action taken against him. Here, NPR and its local member stations have engaged in protected speech, and the EO—which halts all direct and indirect funding from CPB to NPR and precludes NPR from applying for federal grants in the future—is an adverse action that would chill any ordinary speaker. The “causal link” is spelled out in the EO itself. It claims that it is punishing NPR because it is “biased” and because the president dislikes the content of some of its programming.

· Viewpoint Based Discrimination

The EO also violates the First Amendment in its aim to silence NPR’s speech because the President dislikes the balance of viewpoints expressed in NPR’s programming. This falls under the legal doctrine of “viewpoint discrimination,” or restrictions based on content. The courts are not keen on this, often rejecting measures that do it out of hand, like the Supreme Court did in Iancu v. Brunetti, where the government wanted to prohibit what it deemed “immoral or scandalous” trademarks, treating them differently from other applications. Viewpoint-based discrimination is particularly offensive to the Constitution because it is an effort to repress views on subject matter or ideologies the government of the day doesn’t approve. This may be the argument that has the most force with the courts in this case, but there are other strong contenders.

· Freedom of Association

The complaint alleges that by restricting the funds of local public radio stations that choose to affiliate with NPR, the EO unconstitutionally infringes on NPR’s and those stations’ freedom of association. The plaintiffs call this a fundamental incompatibility with the First Amendment.

· Due Process

The complaint alleges that the EO violates the Due Process Clause because it orders the CBP to stop all funding, direct and indirect, that goes to NPR. NPR, they argue, has relied on that funding and is entitled to it, which means that the EO deprives NPR of property rights related to its continued eligibility to receive federal funding without due process. As we know from the deportation context, due process requires pre-deprivation notice and a meaningful opportunity to be heard, neither of which happened here.

NPR is capably represented by attorneys from Gibson Dunn, one of the elite law firms that reportedly stopped taking certain cases supporting immigrant rights because “the firm was afraid of incurring Mr. Trump’s wrath if the firm was associated publicly with a lawsuit that sought to restore legal representation for unaccompanied immigrant children.” It looks like they’re back in the fray now. The lawyers on the team include First Amendment expert Ted Boutrous, who joined us for a session of “Five Questions With” back in August 2023. Miguel Estrada, a prominent conservative appellate lawyer with strong connections to the Republican Party, is also on the case, signaling that they are wisely preparing for the appeal from the get-go. Notably, Estrada was part of the team that presented Bush’s position to the Supreme Court in the Bush v. Gore election challenge in 2000. Estrada clerked on the Supreme Court for retired Justice Anthony Kennedy and was an assistant solicitor general during the George H.W. Bush administration, so he is no stranger to the courtrooms where this case is inevitably headed. Boutrous pointed out in a statement that it is not just NPR and its member stations who are harmed by Trump’s behavior, since “by seeking to halt federal funding to NPR, the Executive Order harms not only NPR and its Member stations, but also the tens of millions of Americans across the country who rely on them for news and cultural programming, and vital emergency information.”

Katherine Maher, NPR’s CEO, issued a statement after the lawsuit was filed:

“Public media was established to inform the American public and uphold American democratic values. The President’s Executive Order is directly counter to Congress’s long standing intent, as expressed in the Public Broadcasting Act, to foster vibrant institutions that achieve that mission, serving all Americans independent of political influence. The Order threatens the existence of the public broadcasting system, upon which tens of millions of Americans rely for vital news, information, and emergency alerts.”

NPR and the Colorado stations are asking the court to order a number of remedies to protect them. They’re seeking declaratory relief, where a court is asked to clarify what the rights of the parties are without ordering any party to do something specific or awarding damages. It’s a way of establishing the rules of the road going forward. They’re also asking for the types of injunctive relief we’ve become all too familiar with in these cases. Here, they ask the court to:

• Declare Executive Order 14290 and all actions implementing it unlawful and unconstitutional

• Preliminarily and permanently enjoin the government Defendants from implementing or seeking to enforce the EO

• Declare that the National Endowment for the Arts and the Corporation may not withhold funding from NPR or local member stations or condition future receipt of funding based on the dictates of the EO

• Issue any other relief that the Court deems just and proper

That last bit may sound like boilerplate, and normally, I would agree that’s what it is. But just yesterday, in the lawsuit involving the Wilmer Cutler law firm, (we discussed it here) where the law firm asked the court to dismiss some but not all of Trump’s EO barring parts of the government from doing business with them, Judge Richard Leon entered an order that exceeded the scope of what they asked for, invalidating the entire EO.

It turns out that the courts, at least the lower courts, are big fans of the Constitution and the rule of law. Let’s hope that vibe catches in the Supreme Court, too.

We’re in this together,

Joyce