The Volokh Conspiracy
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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 here. While a library selects only the books it wants, the PTO does not register only the marks it likes; registering all qualified marks is "mandatory." Similarly, the register is not a curated compilation—rather, it is a listing of millions of marks that "meet[] the Lanham Act's viewpoint-neutral requirements." Nor is the register presented to the public; to the contrary, few people "ha[ve] any idea what federal registration of a trademark means." And, while trademarks have never been thought to convey government messages, libraries' collection decisions (as discussed [below]) have traditionally conveyed the library's view of worthwhile literature.
Finally, Matal's concerns about expanding government speech are not implicated here. The Court worried that, "[i]f federal registration makes a trademark government speech," then someone could say the same about copyright. This case raises no such worry. No one supposes that, by choosing books, the library transforms the books themselves into government speech. The library's speech consists only in presenting a curated collection of books to the public.
They also concluded that the library's collection isn't a "limited public forum," a form of government property where viewpoint discrimination is generally forbidden:
Library shelves are not a community bulletin board: they are not "places" set aside "for public expression of particular kinds or by particular groups." If they were, libraries would have to remain "viewpoint neutral" when choosing books. That would be absurd. Libraries choose certain viewpoints (or range of viewpoints) on a given topic. But they may exclude others. A library can have books on Jewish history without including the Nazi perspective. Forum analysis has no place on a library's bookshelves.
This conclusion is supported by the government speech cases discussed above. Start again with Summum. In addition to ruling that the City was speaking by choosing monuments, the Court also ruled that the City did not create a public forum. Allowing "a limited number of permanent monuments" was not the same as opening the park for "the delivery of speeches [or] the holding of marches." The park obviously had limited space. And it would be absurd to bar the City from engaging in "viewpoint discrimination" when choosing monuments….
And they concluded that the Shurtleff v. City of Boston (2022) didn't preclude this result:
In [Shurtleff], the City of Boston allowed private parties to fly flags of their choosing on the city flagpole. The Supreme Court held the City was not engaging in government speech but instead had created a limited public forum. As a result, the City could not refuse a group's request to fly a "Christian flag" because that would constitute viewpoint discrimination.
In deciding the program was not government speech, the Court considered certain kinds of evidence: "[1] the history of the expression at issue; [2] the public's likely perception as to who (the government or a private person) is speaking; [3] and the extent to which the government has actively shaped or controlled the expression."
All three factors support the conclusion that a library's choice of the books on its shelves is government speech….
[1.] History of the expression
Public libraries, in the modern sense, arose in the United States in the mid-19th century…. [T]he first municipal public library recognized by state statute, the 1848 Boston Public Library, was considered by its Board of Trustees to be "the means of completing our system of public education."
In light of public libraries' avowed educational mission, content selection was critical. For instance, by 1834, the Petersborough Town Library's collection consisted overwhelmingly of historical, biographical, and theological works. Novels, despite their popularity, occupied a mere 2% of the collection. This was no accident: many educators, echoing Thomas Jefferson, found novels "poison[ous]" and "trashy."
The same was true of state libraries. New York's 1835 library law, establishing the first statewide tax-supported library, considered the public library an "educational agency" and charged the state superintendent with creating lists of suitable books. Collections weeded books promoting "improper" morality, with the result that fiction was mostly excluded….
The lesson from this historical sketch is obvious: by shaping their collections, public libraries were speaking, loudly and clearly, to their patrons. "These books will educate and edify you. But the books we have kept off the shelves—trashy novels, for instance—aren't worth your time." …
Today, public libraries convey the same message to the reading public…. Just take a look at the 2012 Texas State Library "CREW" guide. See generally CREW: A Weeding Manual for Modern Libraries. This is the official guide to curating collections in Texas libraries… Public libraries are told to weed the following:
- "[B]iased, racist, or sexist terminology or views."
- "[S]tereotypical images and views of people with disabilities and the elderly, or gender and racial biases."
- "[O]utdated philosophies on ethics and moral values."
- "[B]ooks on marriage, family life, and sexuality … [are] usually outdated within five years."
- "[B]ooks with outdated [political] ideas."
- "[B]iased or unbalanced and inflammatory items [about immigration]."
- "[O]utdated ideas about gender roles in childrearing."
- "Art histories … [with] cultural, racial, and gender biases."
- "[Children's] books that reflect racial and gender bias" or have "erroneous and dangerous information."
Similarly, the American Library Association also advises librarians to remove "items reflecting stereotypes or outdated thinking; items that do not reflect diversity or inclusion; [and] items that promote cultural misrepresentation." For instance, the handbook's chapter on "Diversity and Inclusion" warns librarians that "children's books have overwhelmingly featured white faces" and encourages them to include works that "represent diverse people of different cultures, ethnicities, gender identities, physical abilities, races, religions, and sexual orientation." More specifically, it advises that it is "basic collection maintenance" to "[r]emov[e] the Dr. Seuss books that are purposefully no longer published due to their racist content."
This guidance would be right at home in 1850s Massachusetts. See Jesse H. Shera, Foundations of the American Public Library (1949) (recounting Rep. Wight's 1851 argument that libraries would "diminish[] the circulation of low and immoral publications"). To be sure, today's librarian may have a different idea of what constitutes a "low and immoral publication." But the song remains the same: officials, both in 1851 and 2024, are telling the public which books will "promote virtue, reform vice, [and] increase morality." …
[2.] Public perception
Shurtleff next "consider[ed] whether the public would tend to view the speech at issue as the government's." The answer is yes…. "People know that publicly employed librarians, not patrons, select library materials for a purpose." …
And yet the Eighth Circuit recently reached a different conclusion. In GLBT Youth in Iowa Schools Task Force v. Reynolds (8th Cir. 2024), the court ruled that the public would not "view the placement and removal of books in public school libraries as the government speaking." The panel's reasoning? Given the variety of books on the shelves, if the government were the one speaking, it would be "babbling prodigiously and incoherently." …
[But] the Eighth Circuit misunderstood the government "speech" at issue. It is not "the words of the library books themselves." No one even claims that. As the D.C. Circuit pointed out nearly 20 years ago …, "[t]hose who check out a Tolstoy or Dickens novel would not suppose that they will be reading a government message." A library that includes Mein Kampf on its shelves is not proclaiming "Heil Hitler!" Rather, "the government speaks through its selection of which books to put on the shelves and which books to exclude." …
[3.] Extent of government control
The answer to Shurtleff's third question—"the extent to which the government has actively shaped or controlled the expression"—follows from the first question. As explained, literally from the moment they arose in the mid-19th century, public libraries have been shaping their collections for specific educational, civic, and moral purposes. They still do today….
{Plaintiffs (and the dissent) argue [the government speech] issue was "waived" because defendants did not raise it before the panel. Not so. The issue was raised and ruled on in the district court, ruled on by the panel majority, and thoroughly explored in en banc briefing. So, the issue is before us. In any event, we have discretion to reach the issue.}
{We express no opinion on whether a public library's removal of books can be challenged under other parts of the Constitution. See, e.g., Summum (observing there may be other "restraints on government speech," such as the Establishment Clause).}
Judge Stephen Higginson's dissent (for seven different judges) didn't discuss the government speech doctrine in detail, but here's the excerpt that touches on the subject:
[O]ur court's holding today is incompatible with the "fixed star [of] our constitutional constellation" that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."
By eliminating the public's right to challenge government censorship of public library books, our court's holding becomes a Trojan horse for the government speech doctrine that fails to command a majority in its own name. The majority opinion elucidates no functional difference between its holding that the public has no First Amendment right to challenge the government's removal of public library books, no matter the reason, and its ostensible plurality holding that the government may "speak" by removing library books for any reason, without First Amendment restraint. Turning freedom of speech into government speech is more than a sleight of hand. It results from the majority ignoring preliminary facts found by a district court and repudiating half-century-old Supreme Court authority….
{As counsel for Defendants acknowledged during the en banc oral argument, the majority's "no right to receive" holding collapses into its "government speech" position, creating a circuit split with the Eighth Circuit…. It … unsurprising that this position is not openly embraced by a majority of this court; nor is it surprising that Defendants themselves declined to make this argument at the panel stage, thus waiving the issue despite the primary opinion's assertions to the contrary.
This attempted First Amendment collapse—supplanting free speech with government speech—contradicts multiple Supreme Court decisions. See Matal; Shurtleff. In Shurtleff, the Court explained that the government speech inquiry is a "holistic" one, and that relevant factors include: "the history of the expression at issue"; "the public's likely perception as to who (the government or a private person) is speaking"; and "the extent to which the government has actively shaped or controlled the expression." As explained by the Eighth Circuit, none of these factors supports a conclusion that library book removals constitute government speech. Across multiple "government speech" cases, Justice Alito has emphasized the narrowness of the government speech doctrine and the extreme care with which courts must apply it. See, e.g., Matal (emphasizing that the Supreme Court "exercise[s] great caution before extending [its] government-speech precedents" and warning that the government speech doctrine "is susceptible to dangerous misuse"); Summum (describing as "legitimate" the "concern that the government speech doctrine not be used as a subterfuge for favoring certain private speakers over others based on viewpoint"); Shurtleff (Alito, J., joined by Thomas and Gorsuch, JJ., concurring in the judgment) (writing separately to articulate his view of "the real question in government-speech cases: whether the government is speaking instead of regulating private expression"); id. (admonishing that the government speech doctrine may be "used as a cover for censorship," and that "[c]ensorship is not made constitutional by aggressive and direct application"); id. ("[G]overnment speech occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech"); id. ("Naked censorship of a speaker based on viewpoint, for example, might well constitute 'expression' in the thin sense that it conveys the government's disapproval of the speaker's message. But plainly that kind of action cannot fall beyond the reach of the First Amendment.").
