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.
