Ari Armstrong’s June 10 Complete Colorado column, “Government funding of news media inherently corruptive,” makes a fundamental error by conflating (that’s lawyer-speak for confusing) two very different issues: (1) Should federal taxpayer monies be used to subsidize public media, e.g., NPR, PBS and their member organizations — all of which are private, non-profit, and non-governmental organizations, and (2) may the President, or any other government official, restrict how a private, non-profit corporation, the Corporation for Public Broadcasting (CPB) or public media stations (again, private, non-governmental actors) use monies that Congress has authorized to provide them, based on the content of their speech.

These completely distinct issues can be restated more simply as, (1) should taxpayer funds be used to support public media, and (2) if such funds are provided, may the government “punish” or retaliate against private speakers (NPR and PBS) because it does not like what they have said?

The first question appears to be the real focus of Armstrong’s column. He espouses his belief that all taxpayer funding of journalism, regardless of how insulated the grantees are from political interference in editorial content, is inherently corrupting. Of course, he argues, no one is going to be overly critical of those who figuratively sign their paycheck.  Thus, public funding for news coverage inevitably makes the reporters and editors act as “lapdogs” when they should be “watchdogs.”  This is ironic, to say the least, since the very impetus for President Trump’s assault on public media is his claim that those journalists are “biased” and unfair when they “unreasonably” criticize the administration’s policies or its personnel. Such is the work of watchdogs, not lapdogs.

The fight over subsidies

But let’s put to one side, for the moment, the question whether Congress should provide taxpayer subsidies to public media — notwithstanding that President Trump and his supporters are actively seeking to have Congress “claw back” monies it previously authorized be provided to CPB. That is a purely political matter; one left exclusively in the hands of the senators and representatives elected to make such policy decisions on our behalf.

Reasonable people can disagree about the wisdom of providing subsidies to public media. Personally, I believe it makes sense to have news outlets not beholden to corporate owners like Jeff Bezos, Patrick Soon-Shiong, Comcast, Paramount, Disney, etc., so that reporters and editors are not worried about angering the folks who sign their corporate paycheck, and to ensure all Americans are served even when it’s not commercially profitable. But none of that is at issue in the lawsuit that NPR, PBS and four of their member organizations have brought — in which I represent three Colorado-based NPR member organizations.

Mr. Armstrong is mistaken when he states that the goal of the radio stations in the lawsuit is “to protect their taxpayer subsidies.” Trump’s executive order does not threaten them with losing those subsidies, but rather imposes restrictions on what programming they can purchase and air using those subsidies, thereby violating their First Amendment rights of speech and association.

Boiled down, the lawsuit poses two basic questions: (1) Does any president have the authority, under the law, to command CPB how it is to disperse its funds, or the recipients of CPB grants how they can (and cannot) spend those monies? And (2) assuming, for argument’s sake only, that the president does have such authority, does it infringe on the First Amendment rights of those private entities if the government imposes restrictions on what programming they may broadcast based exclusively on the express (stated) grounds that the president disapproves of their speech?

The answer to the first question seems rather straightforward. Article 1 of the Constitution empowers only one entity — Congress, to appropriate federal funds for particular purposes.  The president has no such authority. Article II says only that the executive branch, headed by the president, is empowered to, and must faithfully execute the laws that Congress has passed and any president has signed into law. Thus, under the Constitution, no president has the authority to re-write federal statutes or to refuse to faithfully execute them precisely as written.

Defending free speech

But it’s the second question on which Mr. Armstrong’s stumbles. He mistakenly believes that because public media (PBS, NPR and those organizations’ privately-owned and operated member organizations) has no “legal right” to receive taxpayer support, the president is at liberty to impose whatever restrictions he wishes on the use of those congressionally allocated funds, and can do so because he disagrees with their speech or finds it offensive in any way.

Mr. Armstrong is flat out wrong.

In 1996, the Supreme Court declared that “when government threatens to revoke a valuable financial benefit [not only entitlements] . . . in retaliation for speech, it serves to chill speech on matters of public concern….” In 1958, the high court held that to deny a benefit to those who engage in protected speech “is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech.” Numerous lower courts, across the land have uniformly (without exception) held that the First Amendment “prohibits the government from conditioning the revocation of benefits on a basis that infringes constitutionally protected interests.” For example, in 1986, the conservative United States Court of Appeals for the Fifth Circuit (headquartered in New Orleans), stated that “[I]t would violate the Constitution for [a government entity] to withhold public patronage . . .in retaliation for [a] newspaper’s exercise of first amendment rights.”

Indeed, even Mr. Armstrong states that he does not believe “that CPR should not receive tax dollars because CPR is biased or bad.”  And presumably he feels the same with respect to the actual targets of Trump’s executive order, NPR and PBS. Yet that is the only reason stated in the order for punishing those two entities by purportedly forbidding CPB funds to be paid to those two entities, either directly by Congress or indirectly by member stations’ payments to license and broadcast their national programs like All Things Considered, Morning Edition and the PBS Newshour.

To make the obvious unconstitutionality of Trump’s executive order clear, consider this hypothetical: a future Democratic president signs an executive order commanding the IRS to withdraw tax-exempt status from any religious or non-profit organization that publicly opposes a Democratic party priority. No problem, right? After all, the argument is that no non-profit organization (e.g. the Catholic Church or the NRA) is entitled to a federal tax exemption, a form of public subsidy. If so, the government would be free to withhold that completely discretionary benefit — one that increases the burden on all non-exempt taxpayers — exclusively because it disagrees with those organizations’ speech, right? No, of course not.

Public media will prevail

The above hypothetical is not meant to say, nor even to suggest, that Trump’s claim that NPR and PBS programming “fuel[s] partisanship and left-wing propaganda” is even remotely accurate. In fact, it is not. But that is utterly beside the point. Even if it were true — that these two private organizations produced decidedly “biased” or one-sided journalism — the First Amendment unmistakably prohibits any government official from withholding a federal benefit in retaliation for his/her displeasure with the viewpoints presented by those speakers.

And that’s why the plaintiffs in the lawsuit challenging the lawfulness of Trump’s executive order should, and will, prevail. Just as did all four law firms who challenged this president’s executive orders punishing them by denying discretionary spending to them in retaliation for their having represented clients with whom Trump disagrees.

Whether or not you believe that taxpayer funds should be appropriated by Congress — not the president — to subsidize public media, we should all agree that no government official can punish private speakers (by removing or withholding a government benefit) based on their displeasure with the content of private speech.

Steve Zanbserg is an attorney in private practice in Denver. He is representing three Colorado-based NPR stations in the lawsuit challenging the legality of President Trump’s executive order of May 1, 2025 regarding public media. The views stated herein are entirely his own, and do not necessarily reflect those of any of his clients.