Defunding NPR Is No Threat to Free Speech

David French told MSNBC that Congress voting to defund NPR is an emblem of “a comprehensive attack on free speech that is maybe most reminiscent of the Red Scare.” Now, leave aside the risible idea that free speech in law and culture in this country is in worse shape than it was four or five years ago. There are certainly sound reasons to be worried that the Trump administration is abusing its powers to retaliate against critics in some areas, such as targeting entire law firms just because they previously employed an enemy of Trump. But the specific case of NPR just doesn’t belong in this discussion.

As a legal matter, it makes all the difference in the world that National Public Radio’s budget is being cut by Congress, not by executive action. As was true in Disney’s losing legal fight with Ron DeSantis, and is likely to be true again in Planned Parenthood’s lawsuit against its defunding by Congress, long-standing precedents set a very high bar for First Amendment claims of viewpoint discrimination and retaliation when those decisions are made on a facially neutral basis by a legislature. That’s partly a practical recognition of the difficulty of digging into the motives of a legislative body and partly a recognition that the specific risk of pretextual retaliation by an executive is greater than when the whole community’s representatives vote. Of course, it’s true in a sense that defunding NPR isn’t facially neutral because Congress didn’t at the same time defund federally taxpayer-funded conservative media outlets. That’s because there are none to defund.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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David French told MSNBC that Congress voting to defund NPR is an emblem of “a comprehensive attack on free speech that is maybe most reminiscent of the Red Scare.” Now, leave aside the risible idea that free speech in law and culture in this country is in worse shape than it was four or five years ago. There are certainly sound reasons to be worried that the Trump administration is abusing its powers to retaliate against critics in some areas, such as targeting entire law firms just because they previously employed an enemy of Trump. But the specific case of NPR just doesn’t belong in this discussion.

As a legal matter, it makes all the difference in the world that National Public Radio’s budget is being cut by Congress, not by executive action. As was true in Disney’s losing legal fight with Ron DeSantis, and is likely to be true again in Planned Parenthood’s lawsuit against its defunding by Congress, long-standing precedents set a very high bar for First Amendment claims of viewpoint discrimination and retaliation when those decisions are made on a facially neutral basis by a legislature. That’s partly a practical recognition of the difficulty of digging into the motives of a legislative body and partly a recognition that the specific risk of pretextual retaliation by an executive is greater than when the whole community’s representatives vote. Of course, it’s true in a sense that defunding NPR isn’t facially neutral because Congress didn’t at the same time defund federally taxpayer-funded conservative media outlets. That’s because there are none to defund.