Seven Fifth Circuit Judges on Public Library Selection and Curation Decisions as Government Speech
As I noted yesterday, a ten-judge Fifth Circuit majority held that the Free Speech Clause doesn’t secure a right of readers to access material in a public library, and thus generally doesn’t constrain public library selection and removal decisions. But seven of the ten judges in the Fifth Circuit (led by Judge Kyle Duncan) also argued that the government speech doctrine provides a separate basis for this decision; the seven judges in the dissent disagreed. This government speech reasoning thus isn’t a binding precedent on the question, but it will doubtless come up in other circuits, and in the Supreme Court if the Court agrees to hear the case (perhaps because of the circuit split between the Fifth and Eighth circuits):
“[T]he Free Speech Clause … does not regulate government speech.” … [W]hen Llano County shapes its library collection, choosing some books but not others, is the county itself speaking or is the county regulating private speech?
The judges began by citing cases in which the Court recognized that private entities—social media platforms curating their news feeds (see last Term’s Moody v. Netchoice), parade organizers choosing floats, newspapers choosing what submissions to publish, and so on—often speak by “present[ing] a curated collection of third-party speech.” “Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its own.” Moody. And, they reasoned,
Like a private person, a government may express itself by crafting and presenting a collection of third-party speech. See, e.g., Ark. Educ. Television Comm’n v. Forbes (1998) (“When a public broadcaster exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity.”). A key precedent illustrating this point is City of Pleasant Grove v. Summum (2009), [where] … the City created displays in a public park by accepting privately donated monuments …. The City’s selecting some monuments over others[, the Court held,] “constitute[s] government speech.” It did not matter that the monuments were works by private sculptors. The relevant expression was the City’s choosing the ones it wanted. The City could “express its views,” [and thus could pick and choose which monuments to accept -EV,] the Court explained, even “when it receives assistance from private sources for the purpose of delivering a government-controlled message.”
Summum maps neatly onto our case. Just as the City of Pleasant Grove selected private speech (monuments) and displayed that speech in a park, the Llano County library selects private speech (books) and features them in the library. The relevant expression lies not in the monuments or the books themselves, but in the government’s selecting and presenting the ones it wants. And in both cases the government sends a message. Pleasant Grove said, “These monuments project the image we want.” Llano County says, “These books are worth reading.”
Plaintiffs object that, while a City’s selecting monuments for a park is an expressive act, a library’s selecting books for a library does not convey “any particular message to the public.” We disagree….
In sum, Supreme Court precedent teaches that someone may engage in expressive activity by curating and presenting a collection of someone else’s speech. Governments can speak in this way no less than private persons.
Take any public museum—say, the National Portrait Gallery. The Gallery selects portraits and presents them to the public. Its message is: “These works are worth viewing.” A library says the same thing through its collection: “These books are worth reading.” The messages in both cases are the government’s.
{Plaintiffs … suppose that the claimed government speech here is merely a library’s “warranting” that books “are of a particular[] quality.” Not so. A library selects books it thinks suitable, buys them with public funds, and presents a curated collection to the public. That is the “expressive activity” at issue, not merely the government’s putting its seal of approval on a book.}
The seven judges concluded that Matal v. Tam (2017) didn’t preclude their conclusion that library curation decisions are government speech:
In Matal, the federal Patent and Trademark Office (“PTO”) refused to place a rock band’s name on the principal register because it found the name (“The Slants”) was “disparaging” under trademark law. The Supreme Court held this violated the band leader’s Free Speech rights by discriminating based on viewpoint…. [But] the claimed government speech [in this case and Matal] is entirely different. Defendants argue that a library speaks by selecting and presenting a collection of books. In Matal, by contrast, the PTO argued the government spoke through the actual content of the marks….
Matal also lacks the expressive elements present
Article from Reason.com
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