Our Prediction on NPR

Here’s a prediction in respect of the contretemps that has erupted up in the wake of National Public Radio’s firing of Juan Williams. The effort in congress to defund the network will gain ground in Congress. But if the reason Congress wants to end the that federal subsidies is that it doesn’t like NPR’s politics, NPR is going to end up arguing that ending the subsidies, or even curtailing them, would be unconstitutional.

NPR isn’t saying that it is going to take that position. It doesn’t even acknowledge it gets government subsidies. It insists that the taxpayer funds it gets from the Corporation for Public Broadcasting, though CPB is itself federally funded, are not subsidies but grants. The money it gets from so-called public radio stations are not subsidies either but membership fees, in the view of those in the world of public broadcasting.

So why predict that it will, in the above circumstances, eventually argue that Congress must continue the funding? It’s just a newspaperman’s hunch. It stems from one of the most astounding episodes we’ve ever covered, the contretemps that erupted after the Brooklyn Museum, a noble institution most of the time, put up, as part of its “Sensation” show, a painting of the Virgin Mary that was dotted with pornographic images and splattered with elephant dung.

The work was so offensive — imagine were it a Torah scroll or an image of the Prophet Muhammad — that the elected mayor of New York and the City Council tried to cut the subsidy that the museum gets from the hard-put-upon taxpayers in the city. The museum argued that because the city was offended by the content of what the museum was doing, it didn’t have the right to end the funding. That would be interfering with its speech. A federal judge forced the city into a settlement that protected the subsidy.

Whether NPR fight will ever get to this point is not entirely clear. Senator DeMint may have announced, in the wake of the Juan Williams affair, that he will be pressing a bill to cut off funding for NPR. Congressman Doug Lamborn, also Republican, may already have introduced such legislation in the House. But a dispatch issued by Politico reminds that past efforts to defund the network have gone nowhere, even when Congress has been controlled by Republicans.

This time might be different, given the baldness of the bias that was evident in the firing of Mr. Williams and also given the fiscal crisis that will be facing the next Congress. The man who is likely to be the next speaker, John Boehner, has stated publicly that he wants to take a look at funding for the public broadcasters. So it is not hard to imagine that the Corporation for Public Broadcasting and its grantees could have a problem. That is when we predict the recipients of taxpayer funding will try to make a constitutional case that they can not be cut off for content.

Will it succeed? The Brooklyn Museum case was ended with a settlement, forced, more or less, by Judge Nina Gershon. Mayor Giuliani had a lot on his plate, and it would have been a lot to ask of him — the Museum was seeking to have the courts hold him responsible not just in his official capacity but also in his personal capacity — to fight the matter all the way when the judge was clearly against him.

But we’re not convinced the Supreme Court would have ruled that the city was obligated, simply because it had once funded the museum, to continue doing so or that it couldn't end its subsidies once the museum had shown itself determined to put up a provocation like the dung-splattered Madonna. Meantime, the argument the museum used and the federal courts allowed does stand as a warning to any legislator who wants to fund any aspect of public arts. Once you start you may be on the hook for more than you bargained for.