When Judge Randolph D Moss issued his memorandum opinion and order on Tuesday, we called Robert Corn-Revere, 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.
Our conversation with Corn-Revere has been edited for length and clarity.
Adam Burke, KSUT: You’ve read Judge Moss’ opinion and ruling. What stuck out for you?
Robert Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression: What stuck out for me is that this is one of a growing number of decisions striking down executive orders from the Trump administration that target various institutions, whether we're talking about universities, law firms, or, in this case, executive orders denying funding to NPR and PBS.
Burke: When it comes to the Judge’s ruling on this lawsuit, is this a relatively routine vetting of First Amendment issues? Was this a cut-and-dried case in some ways, or were there things in play?
Corn-Revere: There are always things in play, but this is routine. The First Amendment principles that were brought to bear here, first, that the government cannot engage in viewpoint-based discrimination, secondly, that it cannot impose unconstitutional conditions, even ongrants where the government is giving out money, those are basic First Amendment principles. What makes it rather extraordinary, and the court talks about the unique situation here, is that in many of its recent actions, the administration is being more extreme. The administration is being quite transparent in its viewpoint, about the political concerns that led it to make these decisions.
Burke: In his opinion and ruling, Judge Moss seems to look for ways to recognize and acknowledge the argument of the defense. In this case, the lawyers for the Department of Justice. Here's one passage: “The Federal defendants are correct that federal funding is unique and that it implicates different considerations than might apply, for example, in a case in which the government seeks to regulate or even to criminalize speech.”
Corn-Revere: That's right.
Burke: So he's saying that in some cases, the government can do this. What's an example of a situation where a government can restrict speech or criminalize it that would be legal?
Corn-Revere: Well, there are certain things that are recognized as exceptions to the First Amendment. For example, obscenity is not protected by the First Amendment, defamation is not protected. There are a number of enumerated and narrowly defined categories of speech where the government is permitted to regulate, so long as it does so using constitutionally sound means.
When you're dealing with funding restrictions, it's somewhat of a different analysis, and that's because the government does have the legitimate authority to decide which programs it wants to fund and which ones it doesn't want to fund. For example, Congress wasn't obligated to create a system of public broadcasting or to year after year, fund public broadcasting. But having created that system for the purpose of engaging in editorial discretion and independent judgment, the Constitution limits the government's ability to then pick and choose about which speakers it's going to subsidize, saying it's going to defund those speakers it dislikes and fund those it likes. That kind of content-based and viewpoint-based favoritism isn't permitted, even when you're talking about funding that the government didn't have to provide in the first place.
Burke: In that same paragraph in Judge Moss's ruling, he says the government in this case has moved toward, “...the illegitimate use of the purse strings to discriminate against private speech because of its message.” And that's what you're saying: They crossed a line.
Corn-Revere: That's right. That's right. So, for example, if you set up a system of public broadcasting but then said, 'We're only going to fund speakers that are Republican and not anybody else,' then that kind of favoritism simply wouldn't be permitted. And this has been a principle that applies across the board to many areas of the intersection between the government and speakers, that kind of thumb on the scale simply isn't allowed under the First Amendment.
Burke: White House spokesperson Abigail Jackson said in a statement following the ruling: “This is a ridiculous ruling by an activist judge attempting to undermine the law.” Is this a ridiculous ruling by an activist judge?
Corn-Revere: No, not at all. And it's sort of the playbook that you see with this kind of criticism of a decision, trying to engage in name-calling and to simply characterize the judge or the decision-maker, rather than to respond in any rational way to the conclusions being reached by the court. As I say, this is really all pretty standard First Amendment analysis, but that is the level of discourse that we have degenerated to. It goes down to the level of name calling rather than actually engaging on the issues.
Burke: One more question that is on the minds of a lot of public radio listeners right now. A year ago, the Trump administration set out to defund Public Broadcasting. There was this executive order that has now been found unconstitutional by a federal judge. But the President also successfully pushed Congress to claw back funding for public broadcasting. So while NPR and the member stations have prevailed in court regarding this executive order, the administration was able to reach its objectives another way with real damage to the public broadcasting system. Are the courts and the Constitution capable of keeping pace with an administration that moves as quickly as this one does to take action against and inflict harm on institutions and perceived enemies that it dislikes?
Corn-Revere: Well, I think you're right about this scope of the problem in that the administration has been moving aggressively on numerous fronts, and it does take time for courts to respond to that. What I can say is that while these actions are taking place at a dizzying speed. In the last year and a half, I've seen more positive first amendment decisions coming out of the courts than in any comparable period I can think of. And while there's no question that damage is being done, I think the damage may well be short-term, and the gains be long term.
The corrective actions being taken by courts create precedents that build strength in the system of upholding constitutional liberties, whereas the damage is more immediate. And this isn't just confined to this administration or this time period. We've seen these kinds of threats in different periods of our history, and those sometimes seemingly existential crises are the stuff of which our First Amendment law is based on. The precedents that we rely on come from those challenges. So while we're facing a number of challenges on a variety of different fronts, through decisions like this one involving public broadcasting, we’re accumulating more ammunition to use in that struggle for liberty.
Editor's note: Under KSUT’s protocol for reporting on itself, no member of KSUT’s executive team reviewed this story before it was published.