Judge James Ho’s Concurrence in the Fifth Circuit Library Decision: Positive Rights vs. Negative Rights
An excerpt from Judge Ho’s concurrence in the Little v. Llano County en banc decision (he also joined the majority opinion as to listener interests and the seven-judge decision as to library curation decisions being government speech):
The Constitution protects “the freedom of speech.” That freedom ensures that citizens are free to speak—not that we may force others to respond. It’s the First Amendment, not FOIA.
So “[t]here is … no basis for the claim that the First Amendment compels others—private persons or government—to supply information.” The Supreme Court “has never intimated a First Amendment guarantee of a right of access to all sources of information within government control.” “The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government.”
Our Founders enacted a charter of negative liberties. “[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from, not freedom to.” …
The fundamental distinction between negative and positive rights is essential to a proper understanding of the First Amendment.
Consider how the law treats public museums. It’s well understood that you have no First Amendment claim just because a public museum won’t feature the art or exhibit you wish to view. That’s because, as today’s en banc majority opinion explains, when a government funds and operates a museum, it necessarily acts as a curator for the public’s benefit—and there is no First Amendment claim when the government is curating, not regulating.
So a public museum
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