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,
