The governor of Maine’s removal of a Department of Labor mural set the stage for debate at the U.S. Court of Appeals for the First Circuit about whether the art is private, First Amendment-protected speech. 

On November 5, in Newton v. LePage, the First Circuit heard oral arguments in the appeal by Maine citizens of a grant of summary judgment to the state’s governor, Paul LePage.

Maine artist Judy Taylor created the mural on commission from the Maine Department of Labor. The mural illustrates the history of working people in the state. It was installed in August 2008.

In March 2011, LePage ordered the removal of the mural after an anonymous critic complained, “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 when he made the decision. The mural was removed later that month.

John Newton and the five other plaintiffs, but not Taylor, sued in April 2011. Each plaintiff is a Maine resident who has viewed the mural and claims to have been inspired by it. They claim that LePage’s action was viewpoint discrimination and that it violated the First Amendment. They also claimed breach of fiduciary duty and sought review of the government’s action. They 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.

Later that month, Judge John Woodcock of the District of Maine denied the plaintiffs’ motion for a temporary restraining order and agreed with defendants that the mural was government speech and thus ineligible for First Amendment protection.

In March 2012, Woodcock granted summary judgment to LePage on the constitutional claims and dismissed the two state law claims. Woodcock wrote that the state’s labor department maintained “effective control” of the mural’s message. He noted that the state solicited potential artists, set the theme, provided a historian, paid for the mural, retained final approval authority and retained important ownership rights, including the right of destruction.

“Having concluded that the state of Maine engaged in government speech when it commissioned and displayed the labor mural, it follows that Governor LePage also engaged in government speech when he removed the mural. The Governor’s message—whether verbal or in the form of the expressive act of removal—is government speech,” Woodcock wrote.

The plaintiffs argued in their brief that a reasonable juror could conclude that the mural does not constitute government speech because the state did not effectively control its message and observers of the mural would normally understand it to show the message of the artist. The plaintiffs’ brief also stated that even if the mural itself is “government speech,” LePage’s removal of it “solely in order to suppress its perceived ‘pro-union’ message nevertheless violates the First Amendment.”

The defendants’ brief claimed the plaintiffs have no standing because the artist isn’t a party to the case and she “specifically contracted away any right to prevent the relocation or destruction of the mural.”

Their brief also claimed there’s “no dispute that the mural was proposed, commissioned, inspected, fully paid for, located and finally approved by the Department.”

The defendants’ brief also stated that the U.S. Supreme Court’s 2009 ruling in Pleasant Grove City, Utah v. Summum makes it clear that the First amendment does not regulate government speech. In that case, the Supreme Court reversed the Tenth Circuit and held that the placement of a privately donated monument in a public park is a form of government speech not subject to First Amendment free speech clause scrutiny.

Chief Judge Sandra Lynch and Judge Michael Boudin heard the case, along with Judge Douglas Woodlock of the District of Massachusetts, who sat on the panel by designation.

At oral argument, the plaintiffs’ lawyer, Jeffrey Young, a partner at McTeague Higbee in Topsham, Maine, said that, under Pleasant Grove, the state has to show it exercised effective control over the mural. He also said the state must also show that “a fully informed observer would reasonably and routinely understand the expression of the mural to be government speech rather than private speech that the government is allowing on public property.”

Lynch responded, “This isn’t even private speech being offered to them; this is something they bought and paid for.” She also observed, “This was not part of the public art program and it was not a private donation. [It was] purchased pursuant to a contract under basically which the artist retained very, very few rights.”

Young said that according to Pleasant Grove, “you have to really understand that it’s the government speaking to you.…Our contention here is that there are facts in this record from which a reasonable and fully informed…person who were to go into the Department of Labor in the lobby would not appreciate that this is government speech.”

The defendants’ lawyer, Maine Assistant Attorney General Paul Stern, said that the Pleasant Grove court rejected a proposal, in a concurrence by now retired Supreme Court Justice David Souter. That proposal, Stern said, would be “to have this difficult test of reasonable and fully-informed observer” to determine if speech is governmental.

Lynch said that a concurring opinion filed by now retired Justice John Paul Stevens and joined by Justice Ruth Bader Ginsberg said the court didn’t need to go so far as to declare the monument government speech. That’s “because, under our existing case law, even if it’s deemed an implicit endorsement of the donor’s message, that’s enough. The government can disassociate itself from implicit endorsements.”

Stern later argued that the plaintiffs don’t want the mural display to be considered a public forum because then the Department of Labor would need to change the art periodically: “The plaintiffs really don’t want free speech here. What they want is the speech that they like to be there for as long as possible.”

Sheri Qualters can be contacted at squalters@alm.com.