Donald Trump, as a private citizen, brought legal actions against traditional and social media outlets he felt had wronged him. Soon after he left office in 2021, he sued the social media giants Meta and Twitter (later renamed X) for kicking him off those platforms after Jan. 6. In April and October 2024 respectively, he sued ABC News for alleged defamation and CBS for what he called an improperly edited interview of Vice President Kamala Harris, the Democrats’ nominee for president.
The nonprofit media organization is fighting back against Trump's efforts to silence it.
Now, as president, he is seeking to bring the power of the federal government down on outlets who he has accused of bias.
During this second term, the Federal Communications Commission chair has launched investigations against NPR and PBS over on-air recognition of financial sponsors, against CBS for alleged “news distortion,” against ABC regarding its handling of the Harris-Trump debate and against Comcast, which owns MSNBC’s parent company, over its diversity, equity and inclusion program.
An executive order Trump signed this month seeks to further use the federal government's levers of power to punish NPR and PBS, whose content Trump argues isn’t “fair, accurate, or unbiased.” Does a president have the power to hobble media outlets based on his disagreement with their content? No, not according to the Constitution. An estimated 43 million people per week receive at least some of their news from NPR alone, and with a lawsuit of its own, the nonprofit media organization is fighting back against Trump’s efforts to take away some of its funding.
Trump’s executive order is aimed at cutting off NPR’s and PBS’ ability to receive congressionally appropriated funds by directing the Corporation for Public Broadcast (CPB) to halt current funding for NPR and PBS and to cut off all future funding. According to NPR, “NPR receives only about 1% of its operating budget directly from the federal government.” However, Influence Watch reports that NPR “receives almost 10% of its budget from federal, state, and local governments indirectly.”
The lawsuit from NPR and three Colorado public radio stations makes a strong case that the Trump administration lacks the power to direct the CPB to stop funding NPR and that, even if it did, Trump’s efforts violate the First Amendment rights of NPR and its listeners.
Congress passed the Public Broadcasting Act in 1967 and, with it, created the CPB, a private, nonprofit corporation. The act is structured so that Congress appropriates funds to the CPB, which then provides funds to media outlets such as NPR and PBS. The CPB acts as a go-between between Congress and public media outlets, in part to protect media outlets from government interference.
NPR argues that Trump violated the Public Broadcasting Act because he can’t, by executive order, tell the CPB to stop funding NPR. NPR also claims that the executive branch doesn’t have the constitutional power to tell the CPB to stop funding NPR. The Constitution gives Congress, not the president, spending power.
The biggest part of NPR’s suit, though, centers on the first part of the Bill of Rights, the First Amendment. And here’s where Trump’s honesty about why he wants to eviscerate federal funding for NPR and PBS could be his legal downfall. In addition to his accusation that the media outlets’ broadcasts aren’t “fair, accurate, or unbiased,” Trump describes what NPR publishes as “left-wing propaganda.” NPR has thus argued that Trump admitted that he’s using his power as head of the executive branch of our government to target NPR and PBS because he disagrees with the content of their speech.
When I teach First Amendment law, I tell my students that there’s one type of First Amendment violation that stands out as the most egregious kind: a content-based law. But even these “content-based” laws come in two flavors. There’s subject matter discrimination, which is bad. And there’s viewpoint discrimination, which is even worse. NPR argues persuasively that the Trump administration’s actions fall within the worse category.
There’s subject matter discrimination, which is bad. And there’s viewpoint discrimination, which is even worse.
The government saying “no one can speak about sports in public parks” would be a restriction based on the subject matter of speech. A rule that “no one can argue that basketball is a better sport than baseball in public parks” would be viewpoint discrimination. The Trump administration isn’t targeting NPR because it covers political news. To the contrary; the administration appears to have explicitly admitted that it’s targeting NPR because of what Trump considers to be its bias as it covers political news. NPR’s lawsuit argues that, therefore, Trump’s executive order is “textbook retaliation and viewpoint-based discrimination.”
Viewpoint-based discrimination — that is, the government’s targeting not just substance of speech but a speaker’s particular views — is, as it should be, presumptively unconstitutional.
If there is one thing the First Amendment is designed to guard against, it is a government’s seeking to insulate itself from criticism by picking winners and losers. In this case, the Trump administration has stated it is targeting media outlets based on the views expressed in their coverage. This should give the public, regardless of their personal political viewpoints, cause for concern. More than that, if the federal judges ruling on this case agree that a presidential administration targeted media outlets based on their views, they should stop the administration in its tracks. The freedom of speech protects everyone, not just those with whom the government agrees.
