NPR, CPB spar in court over interconnection funding

NPR’s legal fight with CPB over interconnection funding is set to go to a bench trial before a federal judge Dec. 1. 

The trial before District Judge Randolph D. Moss, expected to last three to four days, was announced after a status conference Thursday. 

NPR is challenging CPB’s decision to award interconnection funding to a new nonprofit, Public Media Infrastructure. The decision, announced in September, would provide $57.9 million to PMI over five years for public radio content distribution. NPR, which has managed distribution through the Public Radio Satellite System since 1979, is arguing that the change is a violation of the First Amendment.

In an evidentiary hearing held Tuesday, NPR’s attorney, Theodore Boutrous Jr., laid out the outlines of NPR’s First Amendment case. He argued that CPB had yanked NPR’s interconnection funding to curry favor with the Trump administration to save itself. 

President Trump had been pushing for ending NPR’s federal funding, including in a March social media post that described NPR and PBS as “two horrible and completely biased platforms.”

Joseph Lipchitz, an attorney for CPB, called that theory a “head-scratcher,” since CPB would be ingratiating itself with the administration on interconnection but not following other White House directives. 

Since Trump’s May 1 executive order, which directed CPB’s board to cease federal funding to NPR, CPB has given NPR more than $2.15 million, according to an Oct. 24 CPB court filing. 

NPR would also still receive millions of dollars to run the Public Radio Satellite System under the new arrangement with PMI, though the exact amount was unclear Tuesday. NPR’s lawyers put the figure at $6.5 million, while CPB said in the hearing that it would be $7.5 million.

CPB also sued the Trump administration in April over an email that aimed to terminate three of CPB’s board members. 

A ‘treasure trove’

In his argument to the judge, Boutrous presented what he called a “treasure trove of evidence.”

“It’s overwhelming,” Boutrous said about selecting documents to present to the court. 

The court documents include a resolution from an April 2 CPB executive session in which the board authorized management to negotiate a five-year extension of the NPR interconnection agreement at a cost of up to $36 million. Two days later, on April 4, the board amended the resolution to specify that NPR should offer a plan to spin off PRSS to operate independently of the network. 

NPR VP of Distribution Badri Munipalla, who testified in court Tuesday, said CPB executive Kathy Merritt told him April 2 the board had approved NPR’s entire proposal. 

“She was very clear,” Munipalla said. “… I had no doubt.” 

Munipalla recalled an April 12 conversation in which he told Merritt that making PRSS independent would require a station vote. 

An NPR court filing, which the network posted online, said that CPB Board Chair Ruby Calvert and CPB staffers met April 3 with Katharine Sullivan, an associate director of the White House’s Office of Management and Budget.

Boutrous suggested the conversation at that meeting was what prompted the CPB board to change the interconnection resolution April 4. He displayed an April 5 email in which CPB CEO Patricia Harrison described the Sullivan meeting to NPR CEO Katherine Maher and PBS CEO Paula Kerger. 

Harrison wrote that Sullivan “thought our board was more ‘balanced’ than most. Does not want to throw out the baby with the bath water.” 

NPR’s Oct. 24 court filing also cited an April 30 correspondence with Carl Forti, who was advising CPB as a strategic communications consultant. Forti, whom CPB paid $150,000 from April 10 to Oct. 9, wrote that the corporation had to give the administration something to claim as a win if it was to preserve some of its federal funding, according to NPR’s filing. 

“Your win is that you’re already cutting off NPR and taking steps to stop biased media coverage,” Forti said, according to NPR’s filing. “The Admin gets their win and maybe you can get some money back in [rescission because] of the importance of what you provide in certain districts.”

Boutrous asserted that CPB’s motive in walking back the potential contract extension with NPR was to implement the Trump administration’s retaliation and viewpoint discrimination.

“Their own documents show that,” Boutrous said. 

‘No chill’

CPB’s attorney Lipchitz argued Tuesday that NPR had “cherry-picked” a lot of internal emails after the board decided to alter its original resolution and require a proposal for independent governance of public radio interconnection. 

NPR had provided no affidavit or testimony that its journalism had been chilled, Lipchitz said. 

“NPR didn’t act like it impacted their speech,” Lipchitz said. 

He also pointed to an Aug. 1 statement from Maher that called CPB a “bulwark for independent journalism.”

“There is no chill here,” Lipchitz said.

Lipchitz later argued that there was not a breach of contract because the deal was never written or signed. “There was no agreement,” he said.

This story has been updated with details about the scheduled trial.