April 23, 2011

Removal of mural was legal, judge says

Gov. Paul LePage declares victory but says he wasn't trying to disgrace Maine workers by taking the artwork from the Department of Labor.

By Tom Bell tbell@pressherald.com
Staff Writer

AUGUSTA - A federal judge ruled Friday that Gov. Paul LePage did not violate the free speech clause of the First Amendment when he ordered a mural removed from the headquarters of the Maine Department of Labor.

click image to enlarge

The 36-foot-long mural depicting scenes from Maine's labor history was removed from the lobby of the Department of Labor headquarters in Augusta.

Imbrogno Photography photo courtesy of Judy Taylor Studio

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LePage order

In a 45-page decision, Justice John Woodcock Jr. said that state-owned works of art are "government speech," and that political leaders are entitled to select the art that is displayed in state offices.

The judge denied the request of six plaintiffs for a temporary restraining order that would have compelled the administration to return the mural to the Labor Department's lobby.

LePage ordered the mural's removal last month, saying it offered a one-sided view of labor history that some business owners found offensive.

While LePage's order may strike some people as an act of state censorship, Woodcock wrote in his ruling, it was a permissible exercise of gubernatorial authority.

Woodcock said political leaders are entitled to express their views, and the resolution of the issue must not rest on the opinion of a federal judge. "It must rest instead with the ultimate authority of the people of the state of Maine to choose their leaders," he wrote.

Jeffrey Young, a lawyer who sued to have the mural returned, said late Friday that he was disappointed by the ruling. He said the plaintiffs, including labor leaders and artists, are considering other legal options.

"We may have lost this preliminary skirmish in the court of law, but we already have won in the hearts and minds of Maine people," Young said in a prepared statement.

At a town hall meeting Friday in Topsham, LePage told a group of almost 200 people that the judge had thrown out the lawsuit. "We won," he said.

While federal money covered part of the cost of the $60,000 mural, LePage said the state's share came from a surplus in unemployment insurance premiums paid by employers.

"When that money was used, (the employers) got no credit for it," he said. "I'm not trying to disgrace the worker, because from the time I was 11, I've worked every kind of job.

"I have no problem with the mural. I just have a major, major issue with deception."

He received loud applause from some in the crowd, including a standing ovation from about 15 people.

The 11-panel, 36-foot-long mural depicts scenes from Maine's labor history, including two strikes, Rosie the Riveter during World War II, loggers, child laborers and textile mill workers.

During a hearing on the case Tuesday in U.S. District Court in Bangor, Maine Deputy Attorney General Paul Stern defended the governor's action as a form of "government speech."

Central to Stern's argument was a U.S. Supreme Court ruling in 2008 in a case involving Pleasant Grove City, Utah. That case was about whether the city could deny an obscure religion's request to display a monument in a public park, while the city allowed the display of a monument about the Ten Commandments.

The Supreme Court ruled unanimously that monuments in public places should be recognized as the government's own speech, and that decisions about their placement are exempt from the free speech clause of the First Amendment.

On Tuesday, Young countered that a mural is different from a monument. When most people see a painting, they assume it represents the viewpoint of the artist, not the government, he told Woodcock.

In his ruling, Woodcock sided with Stern. He said the relatively large size of the mural makes it obvious that it was intended to be a permanent piece of decor in the room and therefore express the views of the government, not just the artist.

"Like a monument in a public park, it seems the mural was contemplated as more of a fixture ... than as a temporary display of a private work," he wrote.

The plaintiffs sued the state on April 1, alleging that LePage's action had violated the First Amendment. They moved for a temporary restraining order on April 8.

The plaintiffs also asked the court to order LePage and the other defendants -- acting Labor Commissioner Laura Boyette and Maine State Museum Director Joseph Phillips -- to reveal where the mural is now, and to ensure that it is in good condition and protected.

Woodcock has not ruled on that issue.

Young said that Woodcock will schedule a conference with attorneys on both sides to discuss how the case should proceed following this decision.

Staff Writer David Hench contributed to this report.

MaineToday Media State House Writer Tom Bell can be contacted at 699-6261 or at:

tbell@mainetoday.com

 

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