Revival of CPB still “highly unlikely”

Trump is entitled to criticize any reporting, but he may not “use his governmental power to direct federal agencies to exclude Plaintiffs from receiving federal grants or other funding in retaliation for saying things that he does not like,” Moss wrote. The executive order, Moss wrote, did not “define or regulate the content of government speech or ensure compliance with a federal program” or “set neutral and germane criteria that apply to all applicants for a federal grant program. Instead, it singles out two speakers and, on the basis of their speech, bars them from all federally funded programs.”

Trump’s action cut off funding “without regard to whether the federal funds are used to pay for the nationwide interconnection systems, which serve as the technological backbones of public radio and television; to provide safety and security for journalists working in war zones; to support the emergency broadcast system; or to produce or distribute music, children’s or other educational programming, or documentaries,” Moss wrote. “And it applies to grants from the (now defunct) Corporation for Public Broadcasting (‘CPB’), the Federal Emergency Management Agency (‘FEMA’), the Department of Education, the National Endowment for the Arts (‘NEA’), and all other federal agencies.”

Although Congress has since gotten on board with Trump’s defunding of NPR and PBS, the Trump order violated congressional directives in place at the time it was issued, Moss wrote. When “Congress decides to fund a category of First Amendment activity, the executive branch ‘violates the First Amendment when it denies access to a speaker solely to suppress the point of view [it] espouses on an otherwise includible subject,’” Moss wrote, quoting a 1985 Supreme Court ruling.

Trump’s order also directed the CPB to stop all funding for NPR and PBS, but Moss decided that the plaintiffs’ request for injunctive or declaratory relief against the CPB itself is now moot. The CPB told the court that it decided to dissolve because Congress rescinded its funding, not because of the executive order, he wrote.

Moss said there’s little reason to think the CPB will be reconstituted. A new CPB’s board members would have to be appointed by the president and confirmed by the Senate and “would have no reason to seek to re-incorporate the CPB absent congressional funding—a prospect that also seems highly unlikely in the foreseeable future,” Moss wrote.