Case: 23-50224 Document: 264 Page: 1 Date Filed: 09/17/2024
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`
`
`No. 23-50224
`In the United States Court of Appeals for the Fifth Circuit
`_____________
`
`Leila Green Little; Jeanne Puryear; Kathy Kennedy; Rebecca
`Jones; Richard Day; Cynthia Waring; Diane Moster,
`Plaintiffs-Appellees,
`
`
`
`
`
`
`
`
`
`v.
`Llano County; Ron Cunningham, in his official capacity as
`Llano County Judge; Jerry Don Moss, in his official capacity as
`Llano County Commissioner; Peter Jones, in his official
`capacity as Llano County Commissioner; Mike Sandoval, in his
`official capacity as Llano County Commissioner; Linda
`Raschke, in her official capacity as Llano County
`Commissioner; Amber Milum, in her official capacity as Llano
`County Library System Director; Bonnie Wallace, in her
`official capacity as Llano County Library Board Member;
`Rochelle Wells, in her official capacity as Llano County
`Library Board Member; Rhoda Schneider, in her official
`capacty as Llano County Library Board Member; Gay Baskin, in
`her official capacity as Llano County Library Board Member,
`Defendants-Appellants.
`
`
`
`
`
`
`_____________
`
`
`
`
`
`
`
`On Appeal from the United States District Court
`for the Western District of Texas
`Case No. 1:22-cv-424-RP
`_____________
`
`APPELLANTS’ SUPPLEMENTAL REPLY BRIEF
`_____________
`
`
`Jonathan F. Mitchell
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
`(512) 686-3940 (phone)
`(512) 686-3941 (fax)
`jonathan@mitchell.law
`
`Counsel for Defendants-Appellants
`
`
`
`

`

`Case: 23-50224 Document: 264 Page: 2 Date Filed: 09/17/2024
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`Table Of Contents
`Table of contents ...................................................................................................... i(cid:1)
`Table of authorities .................................................................................................. ii(cid:1)
`I.(cid:1) The plaintiffs continue to peddle a false and misleading factual
`narrative ......................................................................................................... 3(cid:1)
`II.(cid:1) The Court should overrule Campbell and hold that the Speech Clause
`does not apply to library-weeding decisions ................................................... 6(cid:1)
`A.(cid:1) The Court should overrule Campbell because a public library’s
`curation decisions are government speech ................................................ 8(cid:1)
`B.(cid:1) The Court should overrule Campbell even if it rejects the
`government-speech argument ................................................................. 16(cid:1)
`C.(cid:1) The plaintiffs’ waiver argument is meritless ........................................... 20(cid:1)
`D.(cid:1)Pico does not preclude this court from overruling Campbell .................... 22(cid:1)
`E.(cid:1) The Court should disavow the eighth circuit’s reasoning in GLBT
`Youth in Iowa Schools Task Force v. Reynolds ............................................ 23(cid:1)
`III.(cid:1)The defendants are not violating the plaintiffs’ right to “receive
`information and ideas” when each of the 17 books remains available
`through Llano Library’s in-house checkout system ..................................... 23(cid:1)
`IV.(cid:1)There is no evidence of viewpoint discrimination in the record .................. 24(cid:1)
`Conclusion ............................................................................................................. 27(cid:1)
`Certificate of service .............................................................................................. 28(cid:1)
`Certificate of compliance ....................................................................................... 29(cid:1)
`Certificate of electronic compliance ....................................................................... 30(cid:1)
`
`
`
`i
`
`
`
`
`
` (cid:1)
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`

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`Case: 23-50224 Document: 264 Page: 3 Date Filed: 09/17/2024
`
`Table of Authorities
`
`Cases(cid:1)
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ................................................................ 5
`Ayres v. City of Chicago, 125 F.3d 1010 (7th Cir. 1997) ............................................. 17
`Board of Education v. Pico, 457 U.S. 853 (1982) ....................................................... 22
`Campbell v. St. Tammany Parish School Board,
`64 F.3d 184 (5th Cir. 1995) .............................................................................. 6, 20
`Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005) ......................................................... 22
`Daves v. Dallas County, 22 F.4th 522 (5th Cir. 2022) (en banc) .............................. 21
`District of Columbia v. Heller, 554 U.S. 570 (2008) ................................................. 17
`Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) ...................... 21
`Garcetti v. Ceballos, 547 U.S. 410 (2006) ................................................................. 11
`Gideon v. Wainwright, 372 U.S. 335 (1963) ................................................................ 7
`GLBT Youth in Iowa Schools Task Force v. Reynolds,
`No. 24-1075, 2024 WL 3736785 (8th Cir. Aug. 9, 2024) ..................................... 23
`Kennedy v. Bremerton School District, 597 U.S. 507 (2022) ...................................... 12
`Lane v. Franks, 573 U.S. 228 (2014) ......................................................................... 11
`Matal v. Tam, 582 U.S. 218 (2017) ............................................................... 12, 15, 16
`McDonald v. City of Chicago, 561 U.S. 742 (2010) ................................................... 17
`Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024) .............................................. 11, 12
`Muir v. Alabama Educational Television Comm’n,
`688 F.2d 1033 (5th Cir. 1982) (en banc) .............................................................. 22
`Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 (1998) ...................................... 8
`Perry Education Ass’n v. Perry Local Educators’ Ass’n,
`460 U.S. 37 (1983) ................................................................................................ 3
`Pleasant Grove City v. Summum, 555 U.S. 460 (2009) ............................................... 8
`Regan v. Taxation With Representation of Washington,
`461 U.S. 540 (1983) .............................................................................................. 7
`ii
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`Case: 23-50224 Document: 264 Page: 4 Date Filed: 09/17/2024
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`Rosenberger v. Rector and Visitors of the University of Virginia,
`515 U.S. 819 (1995) ......................................................................................... 9, 24
`Rust v. Sullivan, 500 U.S. 173 (1991) ................................................................... 8, 16
`Shurtleff v. City of Boston, 596 U.S. 243 (2022) .............................................. 9, 12, 13
`Stanley v. Georgia, 394 U.S. 557 (1969) ........................................................... 6, 7, 20
`Tuffendsam v. Dearborn County Board of Health,
`385 F.3d 1124 (7th Cir. 2004) ............................................................................... 7
`United States v. American Library Ass’n Inc., 539 U.S. 194 (2003) ..................... 10, 11
`Walker v. Texas Division, Sons of Confederate Veterans, Inc.,
`576 U.S. 200 (2015) .............................................................................................. 8
`Webster v. Reproductive Health Services, 492 U.S. 490 (1989) .................................. 18
`Ysursa v. Pocatello Educational Ass’n, 555 U.S. 353 (2009) ............................... passim
`Other Authorities(cid:1)
`David P. Currie, Positive and Negative Constitutional Rights,
`53 U. Chi. L. Rev. 864 (1986) ................................................................................ 7
`Daryl J. Levinson, Framing Transactions in Constitutional Law,
`111 Yale L.J. 1313 (2002) ..................................................................................... 18
`
`
`
`
`
`
`
`
`
`iii
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`Case: 23-50224 Document: 264 Page: 5 Date Filed: 09/17/2024
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`The plaintiffs’ supplemental brief abandons several arguments from their
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`earlier court filings, and presents a theory of the Speech Clause that differs
`
`from what they argued in the district court and before the three-judge panel.
`
`1. The plaintiffs previously insisted that the Speech Clause prohibits
`
`public librarians from engaging in content discrimination or viewpoint dis-
`
`crimination when weeding books. See Appellees’ Panel-Stage Br., ECF No.
`
`99, at 19 (“The First Amendment Prohibits Removal of Library Books Based
`
`on Viewpoint or Content-Based Discrimination”); ROA.1903; ROA.1906–
`
`1907. The district court agreed and imposed a ban on both content and view-
`
`point discrimination
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`in public-library weeding decisions. ROA.3523;
`
`ROA.3526–3527. But now the plaintiffs are conceding that content discrimi-
`
`nation is permissible in library-weeding decisions, and that only viewpoint
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`discrimination is prohibited—admitting that their previous representations
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`to this Court are wrong, and admitting that the district court erred by sub-
`
`jecting Milum’s allegedly content-based weeding decisions to strict scrutiny.
`
`See Appellees’ Supp. Br., ECF No. 230, at 39 (“If a librarian removes a book
`
`for any reason other than viewpoint animus, the First Amendment has noth-
`
`ing to say about it.”).
`
`2. The plaintiffs now acknowledge (for the first time) that the Speech
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`Clause, as interpreted in Campbell, gives librarians carte blanche when pur-
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`chasing or acquiring library materials. See Appellees’ Supp. Br., ECF No.
`
`230, at 43 & n.13; id. at 50 (“Campbell regulates the way in which books are
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`removed, not which books a library shelves.”). In their previous filings, the
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` 1
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`Case: 23-50224 Document: 264 Page: 6 Date Filed: 09/17/2024
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`plaintiffs claimed only that the Speech Clause treats initial selection and re-
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`moval “differently”1 without explaining what those differences might be—
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`and without going so far as to say that Campbell gives librarians a free hand
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`when adding materials or that viewpoint discrimination is constitutionally
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`permissible at the initial-selection stage.
`
`3. The plaintiffs previously insisted that a public library is a “public fo-
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`rum.”2 See Appellees’ Panel-Stage Br., ECF No. 99, at 41 (“Public Libraries
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`Are a Public Forum Subject to Heightened Scrutiny”). But in their supple-
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`mental brief, the plaintiffs are no longer deriving their proposed ban on
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`“viewpoint discrimination” from a library’s status as a “public forum,” per-
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`haps because the lead panel opinion rejected this idea,3 or perhaps because a
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`library’s status as a “public forum” is incompatible with the plaintiffs’ latest
`
`concession that librarians may engage in viewpoint discrimination when se-
`
`lecting new materials for the library’s collection.4
`
`
`1. Appellees’ Panel-Stage Br., ECF No. 99, at 38 (“The First Amendment
`treats the selection and the removal of library books differently”).
`2. Appellees’ Panel-Stage Br., ECF No. 99, at 41 (“Public Libraries Are a
`Public Forum Subject to Heightened Scrutiny”).
`3. See Lead Panel Op., ECF No. 164-1, at 12 (“We agree with Defendants
`that public forum principles are ‘out of place in the context of this
`case.’” (citation omitted)).
`4. See Appellees’ Supp. Br., ECF No. 230, at 43 & n.13; id. at 50. The
`plaintiffs nonetheless maintain in a footnote that “forum analysis results
`in the same First Amendment limitations on discriminatory book re-
`movals,” id. at 51 n.15, although they do not say whether “forum analy-
`sis” would classify public libraries as “traditional public” forums, “lim-
`ited” public forums or “nonpublic” forums. See Perry Education Ass’n v.
`
` 2
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`Case: 23-50224 Document: 264 Page: 7 Date Filed: 09/17/2024
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`At the same time, the plaintiffs’ supplemental brief refuses to back away
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`from the disingenuous factual assertions in their panel-stage brief—nor does
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`it acknowledge or rebut the criticisms of their factual claims in our panel-
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`stage reply. See Panel-Stage Reply Br., ECF No. 195-2, at 1–15.
`I.(cid:1) The Plaintiffs Continue To Peddle A False
`And Misleading Factual Narrative
`
`Weeding library books is not “censorship” or “book banning”; it is a li-
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`brarian’s job description. Librarians weed books constantly to keep their col-
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`lections fresh and ensure that shelf space is reserved for materials that are
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`useful and relevant to the community. ROA.3953 (“We weed all the time.”).5
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`Weeding a library book does not “ban” or “censor” the material any more
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`than a refusal to purchase the book in the first place, and any library patron
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`remains free to acquire the weeded book through other means. The plaintiffs
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`apparently think they get some rhetorical advantage by throwing around
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`terms like “censorship” and “book banning.” But now that the plaintiffs are
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`conceding that librarians may exclude books from the shelves by refusing to
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`purchase them—even when the refusal to purchase is rooted in “viewpoint
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`animus”—it becomes hard to understand how a librarian who excludes books
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`by weeding them is guilty of “censorship.”
`
`
`Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983) (explaining the
`different First Amendment rules that apply to these forums).
`5. ROA.3183 (“As good library managers, we have a responsibility to main-
`tain a collection that is free from outdated, obsolete, shabby, or no long-
`er useful items.”).
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` 3
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`Case: 23-50224 Document: 264 Page: 8 Date Filed: 09/17/2024
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`Our panel-stage reply has already refuted many of the falsehoods in the
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`plaintiffs’ supplemental brief. Bonnie Wallace never asked or advocated for
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`any book to be removed; she asked only that certain books be relocated from
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`the children’s section to the adult section. See Panel-Stage Reply Br., ECF
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`No. 195-2, at 8–9. The plaintiffs’ claim that Llano Library prohibits weeding
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`unless the weeded book meets “at least two or three MUSTIE criteria” is al-
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`so false and was disproven in the panel-stage briefing. See id. at 10–11. Yet the
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`plaintiffs repeat these discredited assertions as if they can somehow speak
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`them into existence or pretend that the court never read our panel-stage re-
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`ply. See Appellees’ Supp. Br., ECF No. 230, at 5–6.
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`And that is only the beginning of the plaintiffs’ misrepresentations. The
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`plaintiffs go on to claim that the “defendants” (plural) described the 17
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`weeded “books” (plural) as “pornographic filth,” “disgusting,” and “inap-
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`propriate.” See id. at 4. Yet the book that Bonnie Wallace described as “por-
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`nographic filth” was Gender Queer, which is not among the 17 disputed books
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`and was never held at Llano County’s libraries. ROA.1502 (“[T]he book
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`Gender Queer is NOT in any of the County Libraries.”). Wallace mistakenly
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`thought that Llano Library offered Gender Queer as a “children’s book,” and
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`she attached a pornographic picture from that book to her e-mail. ROA.1503
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`(the picture that Wallace attached does not appear in the record). None of
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`the other defendants ever used the phrase “pornographic filth” to describe
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`anything in the Llano libraries.
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` 4
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`Case: 23-50224 Document: 264 Page: 9 Date Filed: 09/17/2024
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`The phrase “inappropriate” was used by Rochelle Wells to describe not
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`the 17 disputed books, but a future list that she planned to create and send to
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`Commissioner Moss. ROA.1526 (“We will be sending a list of the [books]
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`that are found to be inappropriate, along with a summary, to Commissioner
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`Moss.”). There is no evidence that Wells or anyone else ever created this list
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`or sent it to Moss. And Wells’s e-mail is dated November 12, 2021, two days
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`after Bonnie Wallace had e-mailed her spreadsheet to Judge Cunningham, so
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`Wells cannot be referring to the already-created Wallace list. Compare
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`ROA.1526 with ROA.1503. Finally, the word “disgusting” was used only by
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`Rochelle Wells—and only to describe the illustrations from It’s Perfectly
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`Normal that appear in Judge Duncan’s panel dissent. ROA.1541; Panel Dis-
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`sent, ECF No. 164, at 43.
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`The plaintiffs’ insistence on portraying the “defendants” as a collective
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`entity—in which the actions or thoughts of one are imputed to all—is partic-
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`ularly egregious when Amber Milum alone weeded the books, and only Mi-
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`lum’s intentions matter in determining whether the books were weeded for
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`innocuous or iniquitous reasons. See Lead Panel Opinion, ECF No. 164-1, at
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`19 (“[I]t is Milum’s motivation that matters”). Amber Milum and her co-
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`defendants cannot be held vicariously liable for the thoughts or aspirations of
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`Bonnie Wallace or Rochelle Wells, who were private citizens when they sent
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`those e-mails. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[V]icarious
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`liability is inapplicable to . . . § 1983 suits. . . . [A] plaintiff must plead that
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`each Government-official defendant, through the official’s own individual
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` 5
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`

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`Case: 23-50224 Document: 264 Page: 10 Date Filed: 09/17/2024
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`actions, has violated the Constitution.”). A litigant who claims that all “de-
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`fendants” are responsible for the actions or intentions of a single co-
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`defendant is defying Iqbal and distorting the factual record.
`II.(cid:1) The Court Should Overrule Campbell And
`Hold That The Speech Clause Does Not Apply
`To Library-Weeding Decisions
`
`The district court and the three-judge panel were bound by Campbell v.
`
`St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995), which limits
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`librarians’ discretion to remove books. The Court should overrule Campbell
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`and declare the Speech Clause inapplicable to library-curating decisions.6
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`The Speech Clause prohibits only laws that “abridge” the freedom of
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`speech. See U.S. Const. amend. I (“Congress shall make no law . . . abridging
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`the freedom of speech”). The Supreme Court has interpreted the “freedom
`
`of speech” to encompass the “right to receive information and ideas.” Stan-
`
`ley v. Georgia, 394 U.S. 557, 564 (1969). But the Speech Clause does not re-
`
`quire the government to subsidize or assist people’s efforts to access infor-
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`mation and ideas. See Ysursa v. Pocatello Educational Ass’n, 555 U.S. 353, 355
`
`(2009) (“The First Amendment prohibits government from ‘abridging the
`
`freedom of speech’; it does not confer an affirmative right to use government
`
`. . . mechanisms for the purpose of obtaining funds for expression.”); Regan v.
`
`
`6. This does not mean that libraries face no legal constraints when curating
`books. Racially discriminatory book removals will violate Title VI at li-
`braries that receive federal funds. And there may be other limits im-
`posed by establishment-clause or equal-protection doctrines.
`
` 6
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`Case: 23-50224 Document: 264 Page: 11 Date Filed: 09/17/2024
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`Taxation With Representation of Washington, 461 U.S. 540, 549 (1983) (“[A]
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`legislature’s decision not to subsidize the exercise of a fundamental right
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`does not infringe the right”). The First Amendment does not require Llano
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`County to operate a public-library system, nor does it require a public library
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`to include any particular book in its collection. See Appellees’ Supp. Br., ECF
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`No. 230, at 43 & n.13; id. at 50. That is because the Constitution (as a general
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`matter) protects only negative rights and not positive rights.7 See Ysursa, 555
`
`U.S. at 358 (“[T]he government . . . is not required to assist others in funding
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`the expression of particular ideas, including political ones.”); Tuffendsam v.
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`Dearborn County Board of Health, 385 F.3d 1124, 1126 (7th Cir. 2004) (Pos-
`
`ner, J.) (“The Constitution is, with immaterial exceptions, a charter of nega-
`
`tive rather than positive liberties.”); David P. Currie, Positive and Negative
`
`Constitutional Rights, 53 U. Chi. L. Rev. 864 (1986). The Speech Clause pre-
`
`vents the government from punishing or penalizing a person for accessing in-
`
`formation or ideas, see Stanley, 394 U.S. at 564, but it does not require the
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`government to help a person access information or ideas by offering the
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`sought-after materials in a public library. And the Speech Clause does not
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`prevent the government from withdrawing previously provided assistance by
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`weeding or removing books from a public library, or closing the public library
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`entirely.
`
`
`7. One notable exception to this rule is Gideon v. Wainwright, 372 U.S. 335
`(1963), but Gideon has never been extended to the First Amendment.
`
` 7
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`Case: 23-50224 Document: 264 Page: 12 Date Filed: 09/17/2024
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`A.(cid:1) The Court Should Overrule Campbell Because A Public
`Library’s Curation Decisions Are Government Speech
`
`When the government joins or assists others in propagating a message, it
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`is engaged in government speech—and it may choose the speech that it will
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`subsidize or support without encountering rules against content or viewpoint
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`discrimination. See Walker v. Texas Division, Sons of Confederate Veterans, Inc.,
`
`576 U.S. 200, 213 (2015) (“Texas offers [specialty license] plates that say
`
`‘Fight Terrorism.’ But it need not issue plates promoting al Qaeda.” (citation
`
`omitted)); Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (“It is
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`the very business of government to favor and disfavor points of view” (cita-
`
`tion and internal quotation marks omitted)); National Endowment for the Arts
`
`v. Finley, 524 U.S. 569, 590–600 (1998) (Scalia, J., concurring in the judg-
`
`ment); Rust v. Sullivan, 500 U.S. 173, 194 (1991) (“When Congress estab-
`
`lished a National Endowment for Democracy to encourage other countries to
`
`adopt democratic principles, it was not constitutionally required to fund a
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`program to encourage competing lines of political philosophy such as com-
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`munism and fascism.” (citation omitted)).
`
`That remains the case even when the government-supported speech is
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`created by private citizens8 or delivered by private citizens.9 The government
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`may choose the artwork that hangs on the walls of government buildings, the
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`quotations that appear on national monuments, the license-plate designs
`
`
`8. See Walker, 576 U.S. at 217; Summum, 555 U.S. at 470–72.
`9. See Rust, 500 U.S. at 179–81.
`
` 8
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`Case: 23-50224 Document: 264 Page: 13 Date Filed: 09/17/2024
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`proposed by members of the public that appear on state-issued plates, and
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`the books housed in a public library. All of these are creations of private citi-
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`zens—the artwork, the quotations, the license-plate designs, and the books.
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`But the use of government resources to promote and convey these ideas and
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`messages is government speech, and it remains government speech even
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`when it is boosting or propagating another person’s handiwork.
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`The only exception arises when the government’s assistance or subsidies
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`create a “forum” for private speech. See, e.g., Shurtleff v. City of Boston, 596
`
`U.S. 243, 247–48 (2022); Rosenberger v. Rector and Visitors of the University of
`
`Virginia, 515 U.S. 819, 829–30 (1995). In these situations, the courts will not
`
`allow the government to characterize the facilitation or funding that it pro-
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`vides to private speakers as its own speech, because the benefits are so broad-
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`ly conferred that the selective withholding of these perks from a disfavored
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`speaker seems more akin to a penalty that “abridges” the freedom of speech
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`than the government acting as a participant in the marketplace of ideas. See,
`
`e.g., Shurtleff, 596 U.S. at 248 (“The city did not deny a single request to
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`raise a flag until, in 2017, Harold Shurtleff, the director of a group called
`
`Camp Constitution, asked to fly a Christian flag.”); Rosenberger, 515 U.S. at
`
`830 (“‘[I]t discriminates on the basis of viewpoint to permit school property
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`to be used for the presentation of all views . . . except those dealing with the
`
`subject matter from a religious standpoint.’” (citation omitted)).
`
`But a public library does not serve as a “forum” for private speech. See
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`Lead Panel Op., ECF No. 164-1, at 12 (“[P]ublic forum principles are ‘out of
`
` 9
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`Case: 23-50224 Document: 264 Page: 14 Date Filed: 09/17/2024
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`place in the context of this case.’” (citation omitted)); United States v. Ameri-
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`can Library Ass’n Inc., 539 U.S. 194, 204 (2003) (plurality opinion of
`
`Rehnquist, C.J.) (“[F]orum analysis and heightened judicial scrutiny are . . .
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`incompatible with the discretion that public libraries must have to fulfill their
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`traditional missions.”). A public library does not seek to accumulate as many
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`publications as possible, and it does not allow its collection to become a
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`dumping ground for any author or publisher who wants to propagate their in-
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`tellectual property. Quite the opposite: A public library is supposed to curate
`
`its collection and retain only the materials that are useful and relevant to the
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`community that it serves. ROA.3188 (“These advantages of weeding . . .
`
`point out the truth of the old adage: Less is more!”); ROA.3190 (noting that
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`a library’s selection and weeding policies should reflect “the needs and de-
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`mands of the library’s community of users”). Librarians must also provide
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`quality control when selecting or retaining materials in their collections.
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`They are instructed to weed books with “poor content,” “mediocre writing
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`style,” “inaccurate or false information,” or “biased, racist, or sexist termi-
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`nology or views.” ROA.3191. This compels librarians to discriminate not only
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`on the basis of content, as the lead panel opinion recognized,10 but also
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`against viewpoints and ideas that are “inaccurate,” “false,” or “biased, racist,
`
`
`10. See Lead Panel Op., ECF No. 164, at 12 (“[C]ontent is necessarily rele-
`vant in removal decisions”).
`
` 10
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`Case: 23-50224 Document: 264 Page: 15 Date Filed: 09/17/2024
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`or sexist.” ROA.3191. Libraries must separate “the gold from the garbage,”11
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`and the “garbage” will include materials with disreputable viewpoints and
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`ideas, such as discredited scientific theories, and viewpoints and ideas that
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`may not have been considered racist or offensive when originally published
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`but are no longer compatible with modern sensibilities. See Panel Dissent,
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`ECF No. 164-1, at 23–25 (providing examples).
`
`More importantly, a public library’s selection and weeding decisions are
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`government speech by definition. NetChoice holds that curating decisions are
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`“speech” that belongs to the curator and is constitutionally protected from
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`abridgement. See Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2400 (2024)
`
`(“[E]xpressive activity includes presenting a curated compilation of speech
`
`originally created by others.”). But a public librarian cannot be engaged in
`
`private speech when deciding whether library materials should be weeded,
`
`because the librarian is acting on behalf of the government that employs her.
`
`See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006); Lane v. Franks, 573 U.S.
`
`228 (2014) (“[The] critical question . . . is whether the speech at issue is it-
`
`self ordinarily within the scope of an employee’s duties.”); ROA.45 (accusing
`
`Milum of acting “under color of state law” when weeding library books). So
`
`the only alternative is to classify the public librarian’s curating decisions as
`
`government speech.
`
`
`11. American Library Ass’n, 539 U.S. at 204 (plurality opinion of Rehnquist,
`C.J.) (quoting W. Katz, Collection Development: The Selection of Materials
`for Libraries 6 (1980)).
`
` 11
`
`

`

`Case: 23-50224 Document: 264 Page: 16 Date Filed: 09/17/2024
`
`The following chart explains:
`
`
`
`
`
`Premise No. 1: Curating decisions are “speech.” See NetChoice.
`Premise No. 2: All speech is either private speech or govern-
`ment speech.12
`Premise No. 3: A public librarian’s curating decisions cannot
`be private speech because the librarian acts in
`her capacity as a government employee when
`selecting or weeding library materials.
`A public librarian’s curating decisions must
`therefore be government speech.
`
`
`
`Conclusion:
`
`The plaintiffs cannot escape the conclusion unless they disprove at least
`
`one of three premises. But all three premises are irrefutable, and the plain-
`
`tiffs do not try to rebut them.
`
`Instead, the plaintiffs try to get around NetChoice by traipsing through the
`
`Shurtleff factors,13 but a Shurtleff analysis must focus on the curation deci-
`
`sions and not the library materials. No one is claiming that library books
`
`themselves become “government speech” when stored in a public library,
`
`and curated materials do not become the speech of the curator. See
`
`NetChoice, 144 S. Ct. at 2399–2400. The public library’s selection and re-
`
`
`12. See Kennedy v. Bremerton School District, 597 U.S. 507, 529 (2022) (“Mr.
`Kennedy has demonstrated that his speech was private speech, not gov-
`ernment speech”); Shurtleff, 596 U.S. at 252 (describing “[t]he bounda-
`ry between government speech and private expression”); Matal v. Tam,
`582 U.S. 218, 239 (2017) (“Trademarks are private, not government,
`speech.”).
`13. See Appellees’ Supp. Br., ECF No. 230, at 21–36.
`
` 12
`
`

`

`Case: 23-50224 Document: 264 Page: 17 Date Filed: 09/17/2024
`
`moval decisions are the only relevant “expression” in the government-speech
`
`inquiry.
`
`The first Shurtleff factor concerns “the history of the expression at is-
`
`sue.”14 But curation decisions at public libraries have always been the prerog-
`
`ative of government employees rather than private citizens. The plaintiffs ob-
`
`serve that Llano County disclaims any endorsement of the views expressed in
`
`its library materials,15 but that does nothing to defeat the government-speech
`
`argument because a person who compiles other people’s speech need not
`
`endorse that speech to engage in expressive activity of his own. The New
`
`York Times does not endorse the views in the letters to the editor that it
`
`chooses to publish, but its decision to publish (or not to publish) these sub-
`
`missions remains “speech” of the New York Times. So too with a library. It
`
`may or may not disclaim endorsement of the materials in its collection, but
`
`the library’s selection and removal decisions remain its own “speech” re-
`
`gardless of whether it embraces or distances itself from the private speech
`
`within those materials.
`
`The plaintiffs’ claim that the “Library System has historically sought to
`
`include all viewpoints in its collection”16 is false and irrelevant. Libraries do
`
`not seek to include books that spout crackpot conspiracy theories or “biased,
`
`racist, or sexist terminology or views.” ROA.3191. And even if libraries had
`
`
`14. Shurtleff, 596 U.S. at 252.
`15. See Appellees’ Supp. Br., ECF No. 230, at 23.
`16. Appellees’ Supp. Br., ECF No. 230, at 23.
`
` 13
`
`

`

`Case: 23-50224 Document: 264 Page: 18 Date Filed: 09/17/2024
`
`historically chosen to express a take-all-comers approach when managing
`
`their collections, that would not indicate or even suggest that library-curation
`
`decisions are private speech rather than government speech. It would merely
`
`show that public libraries historically chose to express their curation-speech
`
`in a certain way. Whatever approach to curation a library chooses to adopt
`
`will still be government speech, and its past choices will not restrain any li-
`
`brary from adopting and expressing a different curation policy in the future.
`
`The second Shurtleff factor involves “the public’s likely perception as to
`
`who (the government or a private person) is speaking.”17 But it is inconceiva-
`
`ble but that any member of the public would perceive a public librarian’s cu-
`
`ration decisions as private rather than governmental speech. Even the plain-
`
`tiffs acknowledge that Milum was acting “under color” of state law when she
`
`weeded the 17 disputed books,18 so it is hard to see how they can simultane-
`
`ously argue that the public would perceive Milum’s actions as those of a pri-
`
`vate citizen rather than an agent of Llano County. The plaintiffs try to get
`
`around this problem by denying that the speech within the library’s materials
`
`would be perceived as government speech,19 but the issue is the public’s per-
`
`ception of the library’s selection and removal decisions, and whether the public
`
`would regard those curation decisions as the speech of a government official
`
`
`17. Shurtleff, 596 U.S. at 252.
`18. ROA.45.
`19. See Appellees’ Supp. Br., ECF No. 230, at 26–27.
`
` 14
`
`