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NPR headquarters in Washington, D.C., on November 8, 2018. Allison Shelley/Allison Shelley/NPR hide caption
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NPR's lawsuit against its decades-long partner, the Corporation for Public Broadcasting, is headed for trial in December, a federal judge ruled Thursday. It is another marker of the Trump administration's disruptive force throughout the media.
NPR alleges that CPB unlawfully yanked away a planned three-year contract worth $36 million in the face of intense pressure from the White House to sever ties with the radio network.
In a court hearing on Tuesday, U.S. District Court Judge Randolph Moss had indicated a deep skepticism of CPB's argument that it sharply reversed course this spring on the merits as NPR presented more evidence it sought to appease the administration. The most plausible explanation, Moss said, was that CPB was hoping to survive.
The CPB is the nonprofit that funneled federal dollars to public media until this month, as Congress and the president acted this summer to halt all $1.1 billion in planned future subsidies. Only a skeleton crew remains at the corporation.
President Trump had been in the White House barely two months when he began attacking NPR and its TV counterpart PBS on social media as "radical left MONSTERS." On May 1, he followed up with an executive order to stop all federal dollars from going to them. In response, NPR and three member stations in Colorado sued both the Trump administration and CPB, alleging their First Amendment rights were being violated.
The portion of the lawsuit headed to trial does not involve the subsidies, but a separate contract to provide satellite and distribution services for public radio stations. NPR has operated it for four decades under a series of contracts with CPB.
A rush to get a deal, then a change of heart
In late March, CPB had heard rumors of the possibility of an executive order against public media but were uncertain what form it would take.
With that in mind, on April 2, CPB's board authorized its officials to work out the fine print of a fresh contract with NPR.
A top CPB official, Kathy Merritt called NPR's executive overseeing the satellite and distribution system and told him not to trip up the negotiations over minor matters, citing the urgency to get the money approved. (Merritt affirmed this account during a sworn deposition last week.)
The next day, at an in-person meeting, a top White House budget official told CPB's board chairperson and two senior executives of her "intense dislike for NPR." Memoranda about the meeting reflect the White House official, Katie Sullivan, also said "it would be a shame to throw the baby out with the bath water," according to legal documents NPR filed in court.
The day after that, on April 4, CPB's board reversed itself, deciding that the radio satellite and distribution system had to be operated by an entity separate from NPR. CPB asked NPR to come up with plans to spin off the division, court filings show; NPR declined but bid for the project nonetheless.
Behind the scenes, CPB's chairperson, Ruby Calvert, was "adamant that she doesn't want funding to go to NPR," according to an April 12 email from Merritt to a colleague brought to light in the litigation.
"Something has been fundamentally missing"
On April 13, CPB's chief of staff, Debra Sanchez, wrote that she wasn't sure how to explain the requirement that it spin off its satellite and distribution system, called PRSS, court documents show. "Something has been fundamentally missing for me ... and it's the 'because' statement," she wrote to colleagues. "In particular, the 'local stations would be better served by having PRSS as an independent entity' which begs the question... because?"
Newly hired Republican consultant Carl Forti advised CPB on key themes to embrace in dealing with the administration: "CPB has taken proactive steps to rein in what it sees as bias at NPR and PBS," according to court filings.
The consultant stated that CPB should stress it had "already taken steps to address the administration's concerns" including by "[w]ithholding interconnection funds from NPR." The word "interconnection" is a shorthand for the satellite and distribution system.
Forti's memo also stated that CPB should note it had stopped a grant supporting NPR's international reporting and for newsroom support. CPB had subsidized a new senior editorial review team last year after allegations of bias led to criticism from Republicans on Capitol Hill.
Clayton Barsoum, CPB's chief lobbying executive, affirmed the memo in a note to Sanchez, writing, "This looks good to me," court filings show.
CPB argues it is a bulwark against political pressure
In September, the corporation announced it was awarding a longer, bigger contract — $57 million over five years — to a new consortium that includes major public radio stations, a public radio distributor and an industry consulting firm. It said it was doing so to address long-standing concerns about NPR's performance.
CPB's attorney, Joseph D. Lipschitz, argued that the corporation has acted as a resolute bulwark for public media, including NPR, against political pressure. He noted that CPB had separately sued Trump over his attempt to fire corporation board members.
In his remarks, Moss cast doubt on the credibility of that defense, repeatedly questioning the quick-twitch decision to demand that NPR no longer run the distribution system after such a longstanding arrangement.
"All of a sudden there was this change. And so what happened to cause this change?" the judge asked. "I have to say, the most plausible explanation for what's happening here, is that everything is not quite as linear as "We're for or against it'."
"CPB is understandably trying to survive," Moss said. "There are a lot of materials that are in the record here that say there are a lot of strategies going on: 'What do we do? One thing we do is distance ourselves from NPR, because they don't like NPR'."
In that April memo reproduced in court filings, CPB's consultant Forti came up with a message to convey senators whom Trump was urging to pull all funding for public media:
"a. We understand the new world.
"b. We are responsive to the new world.
"c. We are trying to limit funds direct to NPR and PBS for biased content."
Barsoum had endorsed the memo. Yet CPB officials felt they could not make that case publicly, evidence presented by NPR in court shows.
Behind the scenes, CPB officials were asking Forti how they could best present their decision, without referring to the political firestorm around them. "I don't think we are comfortable with the approach to publicly state we cut funding to NPR, so the bland statement might be where we land," Sanchez, the CPB chief of staff, wrote, according to materials filed in court.
Moss ordered a brief expedited trial on this portion of the litigation. He will assess it himself, instead of a jury, in what is called a bench trial. It is expected to last three to four days.
Disclosure: This story was reported and written by NPR media correspondent David Folkenflik and edited by Deputy Business Editor Emily Kopp, Managing Editor Vickie Walton-James and Managing Editor Gerry Holmes. Under NPR's protocol for reporting on itself, no corporate official or news executive reviewed this story before it was posted publicly.
