Mural dispute lands in federal court

By Kevin Miller, BDN Staff
Posted April 19, 2011, at 6:03 a.m.

BANGOR, Maine — A federal judge heard arguments Tuesday on whether the LePage administration’s removal of a labor-themed mural from a state building was an act of lawful government speech or illegal censorship by an overzealous governor.

It’s been more than three weeks since Gov. Paul LePage removed the mural from the Department of Labor lobby, spawning protests and several lawsuits. On Tuesday, U.S. District Court Judge John Woodcock began probing the legal questions surrounding a case that has generated national headlines and drawn the interest of federal labor officials.

At the center of the First Amendment complaint filed against LePage is the question of whether the administration was exercising its constitutional right to “government speech” when it took down the 11-panel painting viewed by some as too one-sided.

“The government spoke when it put the mural up and the government spoke when it took the mural down,” said Deputy Attorney General Paul Stern, arguing on behalf of the administration.

But the six plaintiffs — three artists, an attorney and two people who regularly visit the Department of Labor building — claim the administration is violating their First Amendment rights by denying them access to the mural. They filed a temporary restraining order to force LePage to return the artwork depicting the history of Maine’s labor movement.

“The First Amendment protects the listeners and viewers to the same extent that it protects the creator or artist,” said Jeff Young, an attorney for the plaintiffs.

The mural, which was hung in 2008, features women shipbuilders during World War II, the 1986 International Paper strike in Jay, child laborers and part-time Maine resident Frances Perkins, who as President Franklin D. Roosevelt’s labor secretary was integral to the creation of a minimum wage, Social Security and other aspects of Roosevelt’s New Deal.

Addressing the issue of government speech, Stern told Woodcock that the mural was paid for with public dollars, is displayed in the waiting area of a state-owned building and features a plaque specifying the artwork was commissioned by the state.

“If this is not government speech with a piece of art, I don’t know what would be,” Stern said.

But Young said that the mural was, in part, private artwork because the artist, Judy Taylor, retained some rights over the painting. Taylor is not one of the six plaintiffs in Tuesday’s case.

Young also contrasted the mural with a monument in a park, which he said was “unmistakably” government speech, a reference to language used in a U.S. Supreme Court ruling on artwork in public spaces.

“Even government speech cannot eliminate viewpoints,” Young said.

Woodcock peppered both sides with questions, pressing Stern about the difference between LePage replacing a labor-themed mural and removing books about Maine’s labor movement from the State House’s library.

Stern acknowledged that LePage likely would be prohibited under the Constitution from removing and burning objectionable books. But he said the current administration has as much right to remove the labor-themed artwork as the administration of Gov. John Baldacci had in commissioning and placing the mural.

“That mural has spoken for three years,” Stern said. “Maybe it is time for another message.”

For Young, Woodcock questioned when — if ever — governors would be able take down artwork under the plaintiffs’ interpretation.

“Is it your position than whichever administration grabs that space first, then the next administration will never be able to take down that message?” Woodcock asked. Further illustrating his point, he gave the example of presidents decorating the Oval Office to their political tastes.

“This is not the governor’s office,” Young replied. “It is a public office that belongs to and is potentially utilized by all citizens of Maine.”

The plaintiffs’ case is seeking a temporary restraining order to force LePage to reinstate the mural in the Department of Labor building as well as information from the administration about where the artwork is currently being stored.

Woodcock said federal courts typically try to avoid “meddling” in state government issues. He also expressed reluctance about issuing a quick decision on the issue, even warning the plaintiffs that their request for a temporary restraining order could go against them.

“In a sense, you run the risk of the wrong decision quickly rather than the right decision over time,” Woodcock said.

At the same time, Woodcock suggested that uproar over the mural’s removal has arguably yielded several benefits, bringing widespread attention to a previously little-known mural, educating Mainers about their history and sparking a “vibrant public debate” about public art.

“The ultimate arbitrator of the decision of the governor is the people of the state of Maine,” Woodcock said.

Following the hearing, the plaintiffs, their attorneys and about 50 others gathered in the park beside the Bangor Public Library for a rally in support of returning the mural. Several speakers said that, regardless of Woodcock’s decision, they believe the public has weighed in on the issue.

“They may rule this was legal, but we know it was not right,” said writer Edgar Allen Beem of Yarmouth.

http://bangordailynews.com/2011/04/19/politics/hearing-set-tuesday-on-plea-to-return-maine-labor-mural/ printed on September 23, 2014