The governor of Maine’s controversial removal of a mural from the state’s Department of Labor did not violate several objecting citizens’ First Amendment rights, the U.S. Court of Appeals for the First Circuit has ruled.
On November 28, a unanimous panel of the court affirmed a ruling by Judge John Woodcock of the District of Maine in favor of the state’s governor, Paul LePage.
The labor department commissioned Maine artist Judy Taylor, who is not a party in the case, to created the mural, and it was installed in the building’s waiting room in August 2008. The mural depicts the history of working people in the state.
In March 2011, LePage issued an order to remove the mural following an anonymous complaint that stated, “this mural is nothing but propaganda to further the agenda of the Union movement. I felt for a moment that I was in communist North Korea where they use these murals to brainwash the masses.”
LePage had not seen the mural at the time of the order. Also at the time, LePage’s office issued a statement that the mural is in storage “awaiting relocation to a more appropriate venue.”
Six plaintiffs originally sued when the mural was removed that April. The five remaining appellants claimed they have been inspired by the art and that LePage’s action was viewpoint discrimination, in violation of the First Amendment.
The plaintiffs also sued former Maine State Museum Director Joseph Phillips and Maine Department of Labor Commissioner Richard Winglass, both in their professional capacities. They sought a temporary restraining order and permanent injunction. They later added 14th Amendment claims. Under state law they also claimed breach of fiduciary duty and sought review of the government’s action. In March of this year, Woodcock granted the state defendants’ motion for summary judgment, ruling that the state engaged in government speech when it commissioned, displayed and removed the mural: “The Governor’s message — whether verbal or in the form of the expressive act of removal — is government speech.” Under U.S. Supreme Court precedent, government speech is not subject to First Amendment free speech clause scrutiny.
Woodcock also refused to exercise jurisdiction over the two state law claims. The plaintiffs appealed. The First Circuit heard oral argument in the case earlier this month.
Chief Judge Sandra Lynch wrote the opinion in Newton v. LePage. Judge Michael Boudin and Judge Douglas Woodlock of the District of Massachusetts, who sat on the panel by designation, joined her.
Lynch wrote that the panel sees no reason to adopt an “either/or” test and determine that the mural is the artist’s speech or the government’s speech. The issue is the mural’s presence in the labor department’s waiting room, not the mural itself, she wrote.
“The government, without violating the First Amendment, may, in this setting, choose to disassociate itself from an endorsement implicit from the setting for the mural, which it reasonably understood as interfering with the message of neutrality the administration wishes to portray. This is so whether the mural is anti-labor or pro-labor,” Lynch wrote.
Lynch noted that circuit courts have routinely rejected First Amendment claims against government officials who have removed art works from government agencies. She wrote that “the law clearly gives governments leeway to take into consideration the problem of the captive audience and complaints it has received from those who viewed the art work while visiting government offices for other reasons.”
The plaintiffs’ lawyer, Jeffrey Young, a partner at McTeague Higbee in Topsham, Maine, said, “It is a sad day for all of us when our precious First Amendment freedom of speech is eroded and censorship prevails.”
Although his clients didn’t win at the First Circuit, Young said they’re comforted by the fact that the “court of public opinion has reached a different conclusion.” Young also said his clients haven’t decided whether to pursue the state claims in state court.
The plaintiffs urge the governor to “keep his word and to display the mural in an appropriate state building, such as the Maine State Museum,” Young said.
LePage spokeswoman Adrienne Bennett said the administration is happy that the case has ended: “We, as an administration, felt [LePage's removal of the mural] was freedom of speech, and we were confident that we would prevail. We believed all along it was a frivolous lawsuit and are happy with the outcome.”
Maine Assistant Attorney General Paul Stern argued for the state.
Sheri Qualters can be contacted at email@example.com.