Why defenders of the First Amendment should oppose bill to defund NPR

I am not a lawyer and don’t play one on TV. With that disclaimer, I voice my opposition to congressional efforts to squeeze federal money from National Public Radio. While these actions may not turn out to be technical violations of the First Amendment, they clearly violate its spirit.

Under the guise of budget discipline, Republicans passed House Bill 1076 last week, the vote falling along party lines. Whatever money is saved, the real purpose of the bill is to punish NPR for its perceived liberal bias. If NPR leaned a bit to the right, do you think conservatives would have tried to strip it of federal dollars, no matter what the cost?

In essence then, the bill, which has little chance of becoming law, is a cynical attempt to restrain not just an organization, but the content it produces. That feels, or at least smells to this amateur legal nose, like a violation of the First Amendment, deserving the “strict scrutiny” of the court.

This is the first time I have written against a piece of legislation, and I do so cautiously, not as a representative of The Poynter Institute, but as a citizen and a scholar devoted to First Amendment rights and responsibilities.

It’s also time for me to disclose my own bias. In addition to being a regular listener, I have had a long professional relationship with NPR. I have been interviewed on occasion, have conducted training sessions for pay, and have written essays aired on public radio.

I know NPR well enough to understand some of its imperfections and pretensions, including classic examples of mismanagement that have resulted in recent scandals.  The firing of Juan Williams for his commentary on Fox television was a self-destructive and clumsy effort. A secret video made by conservative activists lured a top NPR fundraiser into expressing his disdain for the Republican right.

That video, and not the deficit, became the bloody shirt waved by Republicans to “defund” NPR.

On principle, H.R. 1076 should be opposed from all corners of the journalism world and by anyone who claims to care about freedom of expression. Proposed by Representative Doug Lamborn, a Republican from Colorado, the bill is an attack on one news organization, National Public Radio.

The bill seeks to remove funding of NPR, but goes one important step further. It prevents NPR’s member stations across American from spending any federal dollars on any radio content produced by NPR. That would include Morning Edition, All Things Considered, Marketplace, This American Life, A Prairie Home Companion, Being, Classical 24, World Cafe, and, worst of all, Car Talk.

Conservatives have long accused NPR of a liberal bias and have raised the issue of whether the network deserves taxpayer support in the form of federal funding. About 10 percent of NPR’s annual budget comes from such funding, with the rest from dues from member stations, listener contributions and foundation grants.

Not all attacks on public broadcasting have come from the right. Michael Gartner, a former president of NBC News, argued for years that public broadcasting should and could make it on its own. The marketplace should determine its future.

Scholar and media critic Jay Rosen argues that, free of government money, NPR could become a more aggressive critic of Washington, a watchdog with sharper teeth.

Perhaps NPR would be better off without any federal funding. I don’t have a dog in that fight. My concern is that the federal government would grant money to local public radio stations — supposedly in the public interest — and then make a law abridging the right of those stations to air certain content.

Hold on to that thought. I shall return in a minute.

OK, I’m back. I have just repeated a ritual I follow every day at work when I walk into the Poynter Institute. I look down at a large marble plaque that contains the words of the First Amendment of the Constitution of the United States. Here they are:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

There, in one sentence, our five most precious freedoms are protected. The two words that stand out to me in today’s reading are: “no law.”

Again, I am no legal expert, but it is hard for me to imagine how H.R. 1076 would pass constitutional muster. For the record, I would also oppose reinstatement of the so-called “Fairness Doctrine” and its equal-time provisions that could be used to muzzle forms of conservative talk radio.

No law means no law.

There are many cases, of course, in which funding from government comes with strings attached. In cases such as human cloning, abortion or how food stamps are spent, there are green lights and red lights on how federal money can be used.

But this bill seems different, a blatant effort by the House to circumnavigate the requirements of the First Amendment. While there are legal restrictions on speech, such as obscenity and slander, a mostly conservative Supreme Court has acted in recent cases to uphold rather than tear down First Amendment protections, even in cases of truly obnoxious speech, such as anti-gay picketing at military funerals.

Then why voice opposition to this bill if it has little chance of becoming law? The Senate may not pass it, and the president would probably veto it.

There are times when the health of the commonwealth requires us to shove the camel’s nose out of the tent and kick the salesman’s foot out the door. To quote one of America’s greatest lawmen, Barney Fife, there are some bad things that a good sheriff just has to “nip it in the bud.”

This, fellow journalists, is one of them. No law means no law.

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  • Anonymous

    I would be in favor of no federal funding for any radio or television station. Let them stand on their own merits with their own funding, and their own right of free speech. In the same way, I am in favor of no expression of religion in school. It sounds nice that people can pray in schools, that’s a Pandora’s Box, and I don’t like reading of school districts building prayer rooms for Muslims, just as I would not want to read of their building one for Christians. Let them all be free to express their faith away from schools.

  • Anonymous

    “In essence then, the bill, which has little chance of becoming law, is a cynical attempt to restrain not just an organization, but the content it produces.”

    The law does no such thing

  • http://pulse.yahoo.com/_YPTLEHBZJJG4Y2BFLFCZAOIGZI FC

    Roy Peter Clark as well as the commenters should try reading (and understanding) the bill. While the bill does “[prevent] NPR’s member stations across American (sic) from spending any federal dollars on any radio content produced by NPR,” this is only a partial and inaccurate description of what the bill does. A more accurate undersanding can be found (surprisingly!) in the language of the bill itself which states: “No Federal funds may be made available … for the acquisition of radio programs (including programs to be distributed or disseminated over the Internet) by or for the use of a radio broadcast station that is a public broadcast station (as defined in section 397(6) of the Communications Act of 1934 (47 U.S.C. 397(6))).” (see text of relevant restrictions on use of Federal funds below)

    No federal funds can be used for radio programs for the use of a public broadcast station (regardless of the source of the programs).
    The restriction on the use of FEDERAL, voluntarily accepted, funds would generally not call for first amendment scrutiny Once more, the restriction is not content based nor is it source based, and would not generally be a violation of the first amendment.

    The obvious practical result of the legislation would be that the federal funds that cannot be used for program acquisition would be used for other operating expenses, which would of course free up non-federal funds for program acquisition.

    text of relevant restrictions on use of Federal funds:
    (a) In General- No Federal funds may be made available–
    (1) to an organization that is incorporated as of the date of the enactment of this Act for each of the purposes described in subsection (c), or to any successor organization;
    (2) for payment of dues to an organization described in paragraph (1); or
    (3) for the acquisition of radio programs (including programs to be distributed or disseminated over the Internet) by or for the use of a radio broadcast station that is a public broadcast station (as defined in section 397(6) of the Communications Act of 1934 (47 U.S.C. 397(6))).
    (H.R.1076 at http://thomas.loc.gov/)

  • Anonymous

    We’re agreed on the last point, and I think it’s because–much as you don’t want to admit it–we’re agreed on the first point. Why are these organizations better off without government funding? Because it leads some in government to believe it gives Congress the right to regulate content. But the First Amendment makes it unconstitutional for Congress to regulate content, no matter how it is funded.

  • http://www.facebook.com/people/Jon-JP-Brandt/1407040769 Jon J.P. Brandt

    I agree that what Congress is currently doing is both ham-handed and wrong-headed. But I simply do not agree with you that it is unconstitutional. Finally, my basic thesis is that NPR/PBS/CPB would be better off without federal funding in the long run.

  • Anonymous

    Perhaps I missed the part of the First Amendment where it says Congress shall make no law abridging freedom of the COMMERCIAL press, but I’m pretty sure Congress is supposed to keep its hands off of all content, no matter how it is funded. Would you also argue that a commercial broadcaster who accepts space on the public spectrum must also accept the “strings that are attached”? Or a newspaper publisher who accepts a spot on the public sidewalk to place its vending machine must also accept the strings? And just what are those strings anyway?

  • Anonymous

    Of course there is nothing in the First Amendment requiring the government to fund the press, but the First Amendment makes no distinction in terms of how the press is funded. The bill is a transparent attempt to silence a particular voice. You know it, I know it; the bill’s sponsor clearly knows it. That makes it contrary to the letter and the spirit of the First Amendment. Again, I’m not sure it makes sense in this age of multitudinous voices for the government to be funding non-commercial broadcasting, but that’s not what this is about. It’s about silencing a voice that members of Congress disagree with, and that is unconstitutional.

  • http://www.facebook.com/people/Jon-JP-Brandt/1407040769 Jon J.P. Brandt

    If you want to accept the government funding, then you accept the strings that are attached. I do not accept that this is a First Amendment issue. You have the freedom of speech as long as you are footing the bill. A reporter (which I once was for 6+ years) cannot claim a First Amendment protection if the newspaper he works for refuses to publish a story the reporter writes.

  • http://www.facebook.com/bpsears Bryan P. Sears

    But can’t the member stations simply find other ways of funding their operations and thereby control what they broadcast? The House bill doesn’t strip member stations of their licenses if they choose NPR programing. It just doesn’t pay for it. I just don’t see a public funding requirement in the Bill of Rights.

  • http://www.facebook.com/bpsears Bryan P. Sears

    Voscot: Couldn’t the local stations simply choose not to accept federal/government dollars and buy any content they like? I don’t see anything in the First Amendment requiring public funding of the press.

  • Anonymous

    The posters here seem to be missing the point of the commentary. While the case can certainly be made for defunding public broadcasting (ideology aside, there are more pressing needs for sparse taxpayer dollars), this bill would bar local stations from purchasing NPR programming even after the network has been defunded. That is a baldfaced attempt to regulate content on the local stations (incidentally, the bill bars stations from purchasing content from ANY public radio provider–NPR, APM and PRI), abridging their freedom of speech. Perhaps in a world of cable, satellite, internet, etc., the nation has outgrown the need for a government funded programming outlet as an alternative to commercial broadcasting. That’s a worthy debate to have. But ideologues need to quit hiding behind the budget deficit as they try to circumvent the First Amendment.

  • http://www.facebook.com/people/Roy-Peter-Clark/100000896693218 Roy Peter Clark

    These are thoughtful criticisms of my argument. I guess I’m making a distinction that may not have any legal validity, but let me try to make it again. So Congress defunds NPR. I don’t like it, but I’ve got no problem. Congress would not, however, defund the member stations. Why not? Because back home people really like their member stations. And the local stations can’t provide the red meat the right wants to gnaw on. But to further make sure NPR gets no money from the government teat, the governor says that local stations can’t use any federal dollars to buy content. Why? Because those pushing the bill disapprove, on ideological grounds, of that content. Not because the content is illegal (libelous or obscene) but because it sometimes leans left of center, or so the argument goes. That seems like an effort to harm a category of political speech. That’s my take, and I appreciate all of yours.

  • http://www.facebook.com/profile.php?id=63209055 Chris Allen

    This commentary is deeply flawed in a number of ways. Primarily, defunding NPR is not the same as passing a law that abridges freedom of expression (speech and press). It merely says there will be no federal funding of a news medium. It does not abridge that medium’s freedoms in any way. Second, NPR would be far better off without federal funding. The very fact that Congress is trying to influence the content by closing the pursestrings is an example of that. But worse is the perception that NPR can be influenced by federal funding. When NPR goes begging for federal dollars, and then grovels before the government not to end funding like some junkie asking his dealer for one more free hit, the perception of NPR’s independence is greatly damaged. If NPR were free of federal funding Congress would have no more say in its programming, and no more credibility in criticizing its content, than it does criticizing CNN, CBS or Fox. No threats, no conflict of interest, real or imagined.

    Moreover, NPR does not produce Marketplace (American Public Media) or Prairie Home Companion (Minnesota Public Radio/APM) or This American Life (Public Radio International). So far as I know the legislation would not affect these programs.

    NPR should not only accept HR 1076, it should actively work for its passage. It should renounce all government funding. We often cite the First Amendment as “separation of church and state.” We rarely use that phrase with the press, but we should. There needs to be a separation of press and state, and that includes funding of any form of media. The government should not fund the press in any way. Certainly not an important medium like NPR.

  • http://www.facebook.com/people/Jon-JP-Brandt/1407040769 Jon J.P. Brandt

    I disagree. Not because I think getting rid of NPR’s funding will magically balance the federal budget. And not because I think that NPR is incredibly biased in some manner. I simply think that we don’t need state-funded media in the U.S. and I believe that NPR, PBS, CPB and local public radio and TV stations would be better off without Congress’s sword of Damocles constantly hanging over their heads.

    I am an adult-lifelong supporter of my local NPR and PBS stations, but I truly believe that public broadcasting would be better served if they got their major contributors to pool their money into one large endowment fund that could be used to fund smaller/rural/etc. stations and shows that truly would be endangered by the loss of federal funding.

    My local NPR station (WAMU in Washington, DC) just concluded its semi-annual fund drive during which it constantly told listeners how small was the percentage of its budget that came from government sources and that listener contributions were so much more an important part of their budget, but then also talked about how crucial the federal funding was. Well, which is it?! Seems they want it both ways.

    Don’t get me wrong — I listen to NPR EVERY DAY and I would hate to see its quality decline to the level of the commercial networks (especially, heaven forefend, the cable news channels). But it seems to me it can and would find a way to survive without government funding. And in doing so, it wouldn’t have to keeping looking over its shoulder, worrying about what the bad old Congress was saying about it.

  • http://www.facebook.com/bpsears Bryan P. Sears

    Interesting take on this issue except that the column doesn’t address one core issue: Governmental funding is not a First Amendment issue. I don’t have a dog in the NPR fight. Seems like a lot of noise that distracts from other issues.

    That being said, cutting funding to NPR is not the same, in my opinion, as abridging the First Amendment. The bill doesn’t say NPR can’t exist. It just says the government/public is not paying for it.

    As far as I know, NPR could exist. It would just have to cover its budget in another way.

    In the end, maybe that’s better for NPR. Then it can be the organization it wants to be without worrying about people complaining about complaints about who’s paying the bills.