In early December, attorneys faced off in federal court at a summary judgment hearing in NPR v. Trump, a lawsuit filed last May. Three Colorado-based stations are co-plaintiffs in this suit: Colorado Public Radio, Aspen Public Radio, and KSUT Public Radio in Ignacio.
At the hearing, attorneys for NPR and the three stations argued that President Trump’s May 1 executive order had violated their First Amendment rights.
Meanwhile, US Department of Justice lawyers representing the Trump Administration argued that the President was acting within his authority, and that his executive order had not brought any direct harm to the plaintiffs.
The summary judgment hearing provided an opportunity for both sides to establish the terms by which Judge Randolph D. Moss might issue a ruling. At the hearing, Judge Moss did not signal whether he might make a final decision from the bench, hold a trial, or dismiss the lawsuit.
“It’s hard to have anything other than just an impression because you can’t always tell from the questions a judge asks what he’s really thinking,” said Robert Corn-Revere, a First Amendment litigator and scholar, in a recent interview with KSUT.
“Judges can ask questions for a lot of different reasons," he said. "All you can get a sense of is what is making the judge curious.”
But after reviewing a transcript of the hearing, Corn-Revere was struck by the contrast between the questions Judge Moss posed to the plaintiffs and his interactions with the defense.
“The judge was asking the plaintiffs more technical questions of how he would fashion a ruling in their favor and (resolve) their standing in bringing this case,” Corn-Revere said. “For government, the questions were more focused on the specifics of how the government could justify a viewpoint-based restriction on funding for public broadcasting.”
Corn-Revere is chief counsel for the Foundation for Individual Rights and Expression, based in Philadelphia, Pennsylvania, and the author of books on the First Amendment and Communications Law.
He says the case is not about whether the First Amendment entitles public broadcasters to federal funding.
“Even if there’s no right to receive federal funds, there is a right not to have the government discriminate because it doesn’t like what you have to say,” said Corn-Revere.
Corn-Revere pointed to a 1984 Supreme Court decision on FCC v. League of Women Voters, which held that the editorial independence of public broadcasters is protected under the First Amendment.
Late in the December 4 hearing, Theodore Boutrous, one of the attorneys representing NPR, suggested that the actions President Trump has taken against NPR are unprecedented.
“No president has ever been so brazen as to be so explicit that they're going to impose massive punishments against a speaker by depriving them of funding based on their viewpoint,” Boutrous said.
Corn-Revere pointed out that other Presidents, notably Richard M. Nixon, have targeted enemies and attempted to exert control over public media institutions.
“The actions taken by the Trump Administration are not unprecedented,” Corn-Revere said. “But the bold and brazen nature of (Trump’s statements) and the fact that they are saying the quiet parts out loud…that is different.”
Disclosure: Under KSUT’s protocol for reporting on itself, no member of KSUT’s executive team reviewed this story before it was posted publicly.
