A First Amendment Threat Related To The Juan Williams Firing

By Big Tent Democrat, Section Constitution
Posted on Thu Oct 21, 2010 at 11:44:07 AM EST
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[Mike] Huckabee [. . .] call[ed] on Congress to pull funding from NPR. “NPR has discredited itself as a forum for free speech and a protection of the First Amendment rights of all and has solidified itself as the purveyor of politically correct pabulum and protector of views that lean left,” Huckabee said. “It is time for the taxpayers to start making cuts to federal spending, and I encourage the new Congress to start with NPR,” he added.

Cutting government funding because of a decision by NPR on what speech to air would amount to government interference with free speech and would likely violate the First Amendment:

Clearly established law prohibits the government from conditioning the revocation of benefits on a basis that infringes constitutionally protected interests, see Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and from terminating an independent contractor [. . .] in retaliation for exercising its First Amendment rights, see Board of County Comm'rs v. Umbehr, 518 U.S. 668, 685, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) Indeed, in the words of the Supreme Court in Anderson, 483 U.S. at 640, 107 S.Ct. 3034, "the very action in question has previously been held unlawful." See, e.g., North Mississippi Communications, Inc. v. Jones, 792 F.2d 1330, 1337 (5th Cir.1986)(government's withdrawal of advertisements from newspaper in retaliation for critical editorials and news violates the First Amendment); Frissell v. Rizzo, 597 F.2d 840, 845 (3d Cir.1979) (dicta);[3] see also Umbehr, 518 U.S. at 673, 116 S.Ct. 2342 (citing North Mississippi Communications, Inc. with approval).

Huckabee proposes the cutting of government funding to NPR because of its speech decisions regarding Juan Williams. This would be a patent violation of the First Amendment.

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A First Amendment Threat Related To The Juan Williams Firing | 30 comments (30 topical)

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Personally, (5.00 / 1) (#17)
by lentinel on Thu Oct 21, 2010 at 12:59:36 PM EST

I would like government funding ended to NPR and PBS.
The effect on both of these outlets has been pernicious and disastrous.
Along with that, I would like corporate funding to be ended.
When I see which corporations are funding which programs, I can understand why NET has become a haven for folks like Charlie Rose and Jim Lehrer. Actually, I think Charlie may fund himself. Whatever.
I will never forget the same parade of retired generals appearing on PBS hawking the war in Iraq. I will never forget the contempt they showed for people opposing it. I will never believe that government funding had a lot to do with it.

The only model I like is that of Pacifica. Listener funded.
There is an obvious problem with Pacifica as well, however.
The listeners are asked to fund what the programmers have already decided to air. They don't have much of a choice in determining the content of what is aired. Nevertheless, their news programming is usually exemplary. There is no equal to Amy Goodman and "Democracy Now!" in so-called public radio or TV. The reason is obvious.

As for free speech and the first amendment:
Which is the more egregious violation of the First Amendment:
Knocking someone off the air because of an opinion or point of view they expressed, or not putting public funds into the station that aired content that is considered inappropriate?

I say let's take the government out of programming. Period.

As for canning Williams, I think NPR might not have done so if they weren't looking over their shoulders - fearful of the people who pay their salaries.

I have no use for Williams, but Jeezz - is what he expressed - a description of a subjective reaction - any worse than the out and out hurtful and hateful garbage spewed by a Pat Robertson (tax exempt!) or a Glenn Beck or a Bill O'Reilly?

Huckabee's comment is irrelevant. (4.67 / 3) (#5)
by sarcastic unnamed one on Thu Oct 21, 2010 at 12:20:54 PM EST

NPR does not recieve any direct funding from the gvt.

Q: Could NPR live without federal funding?
A: Let's go on a sidebar. There's a misperception about federal funding and public radio.
There's the Corporation for Public Broadcasting.
They receive $90 million a year and a vast majority goes to member public radio stations. Those stations pull in more than $1 billion collectively a year. It's significant and important but not even close to the lion's share of revenues for public radio.
NPR gets no allocation from CPB. Zero.
We are a private 501(c)3. We've had journalists call up and ask what department of the government we report to. That's laughable. Have you listened to our shows?
We do apply for competitive grants from the likes of the Ford Foundation and the Knight Foundation. As a result, some money from CPB does come to us when we win grants.
Depending on the year, it represents just one to three percent of our total budget.

Thanks (5.00 / 1) (#9)
by Big Tent Democrat on Thu Oct 21, 2010 at 12:25:33 PM EST

I thought that they got money directly from CPB and what Huckabee was proposing was an express ruling against CPB funding of NPR.

But since you describe CPB funding as a part of winning a grant competition, this seems to be silliness from Huckabee.

Un;ess he is proposing that NPR be ineligible for any grant that carries CPB funding.


I don't think Huckabee has any clue (5.00 / 2) (#12)
by sarcastic unnamed one on Thu Oct 21, 2010 at 12:32:46 PM EST

how NPR is funded, or at least he didn't when he made the comment.


Direct funding vs indirect funding (none / 0) (#16)
by MO Blue on Thu Oct 21, 2010 at 12:52:42 PM EST

Member public radio stations receive 5.8% of their funding from federal, state and local government and 10.1% from grants from CPB.

NPR's revenue comes primarily from fees paid by our member stations, contributions from corporate sponsors, institutional foundation grants, gifts from major donors, and fees paid by users of The Public Radio Satellite System. We receive no direct federal funding for operations. The largest share of NPR's revenue comes from program fees and station dues paid by member stations that broadcast NPR programs.
Program fees and dues paid by our member stations are the largest portion of NPR's revenue.

Source: NPR - public radio finances


you seem surprised: (none / 0) (#20)
by cpinva on Thu Oct 21, 2010 at 03:13:36 PM EST

this seems to be silliness from Huckabee.

mr. huckabee has made a career of being silly. dangerous, but silly.


You know what I just can't get out (none / 0) (#23)
by Militarytracy on Thu Oct 21, 2010 at 03:56:11 PM EST

of my head where Huckabee is concerned? That his son tortured a dog to death, was found out, and then he did what needed to be done to cover it up.


I did not know that about the dog (none / 0) (#27)
by christinep on Thu Oct 21, 2010 at 08:24:39 PM EST

Very sad...about the dog. Very angry...about Huckabee & son and anyone else who would be so cruel.


When I think of Huckabee... (none / 0) (#28)
by MileHi Hawkeye on Thu Oct 21, 2010 at 08:37:01 PM EST

...I always think of this picture that C&L used for the story. Bless their hearts. Those shirts make me dizzy.

When I think of dogs and politicians, I think of Mittens shoving the family dog in a crate and lashing it to the roof rack for the family vacation. Compassionate conservatism in action.


: I still can't get over that story (none / 0) (#29)
by gyrfalcon on Fri Oct 22, 2010 at 12:02:32 AM EST

Deliberate psychopathic cruelty to animals is one thing, casual, uncaring cruelty like the "respectable" Romneys' makes me sick to my stomach. Literally. I hope that dog had a good and loving human companion in his next life.

You can go way back to the 80s (none / 0) (#25)
by inclusiveheart on Thu Oct 21, 2010 at 05:07:31 PM EST

and document the decline - led by Lynn Cheney initially - in actual public funding for NPR. She tried to kill the organization, but they survived - ha-ha.


Freedom of Speech is in the First Amendment? (4.50 / 2) (#3)
by steviez314 on Thu Oct 21, 2010 at 12:17:23 PM EST

Really?

-----Christine O'Donnell

: Lucky for her it is. nt (none / 0) (#24)
by inclusiveheart on Thu Oct 21, 2010 at 05:04:58 PM EST

Unless this is more like (none / 0) (#1)
by andgarden on Thu Oct 21, 2010 at 12:14:06 PM EST

Rumsfeld v. FAIR (i.e., the Solomon Amendment).

Who knows what the courts might say.

Not seeing (none / 0) (#2)
by Big Tent Democrat on Thu Oct 21, 2010 at 12:16:58 PM EST

the similarity to Rumsfeld v. FAIR.

Armed Services Radio is owned by the government. NPR is not.


My bad (none / 0) (#4)
by Big Tent Democrat on Thu Oct 21, 2010 at 12:19:04 PM EST

Wrong case. But I still don't see the analogy.


It's possible (none / 0) (#6)
by andgarden on Thu Oct 21, 2010 at 12:21:10 PM EST

to condition funding on providing a forum for certain kinds of speech--maybe.


Prospective condition (none / 0) (#8)
by Big Tent Democrat on Thu Oct 21, 2010 at 12:23:13 PM EST

is different than punishing funding cut for speech already uttered.


Do you think that's a difference (none / 0) (#10)
by andgarden on Thu Oct 21, 2010 at 12:30:19 PM EST

that rises to a Constitutional level?

I don't.


: I do actually (none / 0) (#14)
by Big Tent Democrat on Thu Oct 21, 2010 at 12:44:10 PM EST

My 2006 discussion of (none / 0) (#7)
by Big Tent Democrat on Thu Oct 21, 2010 at 12:22:32 PM EST

Rumsfeld v. FAIR is here.


And it's a good one: (none / 0) (#11)
by andgarden on Thu Oct 21, 2010 at 12:32:24 PM EST

You quoted Roberts:

[T]o comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students--not to become members of the school's expressive association.

Honestly, I don't think that passage is credible. We're pretty obviously in the realm of compelled speech.


Not sure what you mean (none / 0) (#13)
by Big Tent Democrat on Thu Oct 21, 2010 at 12:43:46 PM EST

this FAIR case, or Huckabee's proposal.

Let's try and clean up Huck's idea - how could we do it? How about no government funding for entities that fire speakers due to the content of their speech. Make it a speech protection clause.

Well that's a problem for Huckabee because he will want NPR to not let certain views on the air.

But as a prospective condition, is it compelled speech? Only if you think an entity must have government dollars.

I am not a fan of that line of thinking.


As a more general matter, (none / 0) (#15)
by andgarden on Thu Oct 21, 2010 at 12:52:23 PM EST

should Congress be allowed to prefer certain kinds of speech over others? If not, then how is any government funding for the arts Constitutional? By saying that once funding is supplied to an independent actor (i.e., NPR), Congress can say no more?

What makes this so difficult is that NPR can only offer a limited number of views during its broadcast day.

Because this is broadcast, we might be in specialized terrain. Do you think the basis of Red Lion is sound?


: No it shouldn't (none / 0) (#18)
by Big Tent Democrat on Thu Oct 21, 2010 at 01:05:32 PM EST

free speech does not equal entitlement to cash (none / 0) (#19)
by diogenes on Thu Oct 21, 2010 at 02:52:12 PM EST

Free speech means that the government may not restrict what you say. It does not mean that you have a constitutional right to have the government subsidize your journalistic business with taxpayer cash.

It doesn't entitle them (5.00 / 2) (#22)
by CST on Thu Oct 21, 2010 at 03:41:06 PM EST

to receive cash. It does protect them from having cash revoked for excercising free speech.

"Clearly established law prohibits the government from conditioning the revocation of benefits on a basis that infringes constitutionally protected interests"


absolutely! (none / 0) (#21)
by cpinva on Thu Oct 21, 2010 at 03:19:01 PM EST

free speech does not equal entitlement to cash

i couldn't agree more. in this case however, the point is moot, since NPR doesn't get direct funding from any governmental source.


: "direct funding" (none / 0) (#26)
by diogenes on Thu Oct 21, 2010 at 08:08:56 PM EST

Does that mean that NPR gets "indirect funding" from a government source?

I realized (none / 0) (#30)
by lilburro on Fri Oct 22, 2010 at 08:12:05 AM EST

last night that the Constitution is like the (Protestant) Bible for conservatives. Case law doesn't mean anything. It's just a set of principles freely applied (and revised) - "the right to free speech!"

Of course in reality, that's now how a country's run, but, you know...