MICHEL MARTIN, HOST:
NPR's CEO and president, Katherine Maher, said the network is suing the Trump administration over an executive order that tries to stop any federal funds from going to NPR or PBS. But she said it is a response to a bigger threat than the president's efforts to cut the funding. Here's Maher on All Things Considered yesterday.
(SOUNDBITE OF ARCHIVED NPR BROADCAST)
KATHERINE MAHER: We are not choosing to do this out of politics. We are choosing to do this as a matter of necessity and principle. All of our rights that we enjoy in the - this democracy flow from the First Amendment - freedom of speech, association, freedom of the press. When we see those rights infringed upon, we have an obligation to challenge them, and that's what's at stake here.
MARTIN: NPR and three of its member stations in Colorado filed the lawsuit. Maher said the three stations represent the diversity of the network.
Theodore Boutrous is a veteran of numerous First Amendment cases and he represents NPR in the lawsuit, and he's on the line with us now from Los Angeles. Good morning. Thank you so much for joining us.
THEODORE BOUTROUS: Thank you, Michel. Good to be with you.
MARTIN: I do want to mention that no one for management had any involvement with the conversation we're about to have. So the brief makes a First Amendment argument, as well as a separation of powers argument. So let's take those separately. First, what is the First Amendment issue here?
BOUTROUS: The First Amendment issue here, Michel, is that the Public Broadcasting Act created an elaborate structure to insulate private media entities, local stations - NPR - from government interference on content. And this executive order from President Trump explicitly, over and over again, says that it's being issued because President Trump and others in his administration do not like the content. They think it's biased. We obviously disagree with that. But that's the classic example of viewpoint discrimination by the government and retaliation by the government for speech on matters of public concern. That's about as blatant First Amendment violation as you can have, and the Supreme Court has repeatedly condemned that and said that news organizations and people have a right to make editorial decisions on their own without government interference.
MARTIN: The legal brief says it's not always obvious when the government acts with a, quote, "retaliatory purpose," end quote, in violation of the First Amendment. But the brief goes on to say, quote, "this wolf comes as a wolf." And those are words that the late Justice Antonin Scalia used in a different case. Say more about why you say it's obvious that this is retaliation.
BOUTROUS: It's so obvious. And usually, government will sort of try to hide what it's doing. If it's trying to censor, it will say, we're doing it for some other purpose. But here, the executive order and statements by the administration before and after the executive order say things like, NPR is woke. NPR is biased. It's the arm of a political party. All of that is false. They just don't like the content, which is fine. The government officials - everyone has the right to say, I don't like this content. I'm going to read something or listen to something else. But here, on its face, explicitly, the executive order is a wolf. It's a censoring mechanism meant to control and interfere with NPR's content and the local stations who subscribe to and license NPR content, who would be barred from doing that by this denial of funding by the executive order if it were to go into effect.
MARTIN: The lawsuit also says the administration is usurping the power of Congress to direct how federal funds are spent, as well as the expressed will of Congress that public media's independence be protected. Now, the White House has said in response to NPR that the president is exercising his mandate to ensure efficient use of taxpayer dollars. And the White House says, through a spokesperson, that the Corporation for Public Broadcasting is creating media to support a particular political party on taxpayers' dime. And as you, you know, pointed out, President Trump and his allies have publicly called public broadcasters left-wing sort of propaganda. But how do you sort that out? How do you respond to that? I mean, the president said that that is his job.
BOUTROUS: That's just wrong. In fact, the Public Broadcasting Act of 1967 - which is an amazing statute, really - where Congress created what the Supreme Court has called an elaborate structure that both funds public media via the Corporation for Public Broadcasting but then creates this structure meant to bar the president and bar Congress and bar the government from doing exactly what this executive order does, which is to try to invoke the power to control the content. And the statute itself explicitly says the government cannot interfere, cannot control content or any of the operations involved here. And one of my favorite quotes from the Supreme Court from the FCC v. League of Women Voters case is because local stations are the bedrock of the system, their independence from government interference and control must be fully guaranteed. The president is overstepping that explicit restriction on his authority.
MARTIN: So let me ask you two more questions here. Let me say - let me just ask for the sake of argument, let's just say that there are people who agree with the president. They don't like NPR. They don't like the content. What argument do you have for them for why this lawsuit should prevail?
BOUTROUS: That's really the beauty of the First Amendment. It's not a partisan tool. If people don't like NPR, then they can listen to something else. They can get their information from other - some other source. But if the president of the United States - this one or someone in the future - has the power to control content of NPR or the local stations, then they can do it to anyone. And that means your content is going to be fettered and interfered with, and that's terrible. And the purpose of the First Amendment is to allow the American people to get the information they need to govern themselves.
MARTIN: Thirty seconds left. But what do you say to those who argue that the First Amendment doesn't guarantee the right to federal funds?
BOUTROUS: And that's not what we're arguing. Congress has appropriated those funds, and by getting those funds to the entities that broadcast, those entities are then allowed to engage in freedom of speech. It's not about guaranteeing funds. It's the government interfering with content.
MARTIN: That is attorney Theodore Boutrous. He's a partner in the Los Angeles office of Gibson, Dunn & Crutcher. He's representing NPR in its First Amendment lawsuit against the Trump administration. Mr. Boutrous, thanks so much for joining us.
BOUTROUS: Thank you. Transcript provided by NPR, Copyright NPR.
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