PORTLAND, Maine — A lawsuit seeking to have a 36-foot mural depicting Maine’s labor history returned to a state office lobby will be at stake when a federal judge hears arguments on whether the suit should be dismissed.
A group of six Mainers filed a complaint last March to have the mural returned to the Labor Department offices, where it was on display when Gov. Paul LePage ordered it removed, causing a public uproar and a distraction for his new administration. LePage said visitors had complained that the mural gave the perception that the Labor Department was not equally receptive to both businesses and workers.
U.S. District Court Judge John Woodcock will hear arguments Thursday in Bangor on the state’s motion to dismiss the complaint. For now, the mural is at an undisclosed location. The governor’s office has said it is safe and properly stored.
The lawsuit contends LePage and other state officials violated the U.S. Constitution as well as the contract with the artist who created the mural by removing it from what was supposed to be its permanent location. But the state argues that taking down the mural constituted “government speech,” a doctrine that says the government can express itself, and that taking down the mural was the LePage administration’s way of presenting a balanced theme between business and labor.
“Neither the facts, the law nor common sense support plaintiffs’ claims,” state attorneys wrote in the motion.
The other side, though, says a jury should decide.
“The thrust of the argument is that after hearing all the evidence in the case, a reasonable individual could conclude that the mural is the speech of the artist and trying to convey a message from the artist,” said plaintiffs’ attorney Jeff Young of Topsham. “It is not the speech of any particular government, and therefore since reasonable individuals might differ after they hear all the facts, the only way this can be properly resolved is through a jury trial.”
The 11-panel mural was created by artist Judy Taylor of Tremont, who won a competition commissioned by the Maine Arts Commission. The piece depicts scenes of child laborers, a 1937 shoe factory strike in Lewiston and Auburn, a “Rosie the Riveter” image at Bath Iron Works and labor reformers including Frances Perkins, a Maine native who served as labor secretary under President Franklin Roosevelt.
The mural was unveiled in August 2008, but shortly after LePage took office he ordered it taken down.
The decision ignited a firestorm of opposition, with demonstrations and the filing of the federal lawsuit that sought to return the artwork to the Labor Department’s lobby, confirm where it was being hidden away and ensure it was adequately cared for. The suit was filed on behalf of three artists, a workplace safety official, an organized labor representative and a lawyer.
In April, Woodcock denied a motion for a temporary restraining order to have the mural returned. He agreed with the state’s position that the decision to remove the mural constituted “government speech.” Attorney General William Schneider argued that the previous administration was speaking when it chose to display the mural, and that the LePage administration was speaking by having it removed.
Young said the legal standards for Thursday’s hearing and for last year’s motion seeking a temporary restraining order are different. For the previous motion, the plaintiffs had to prevail on the merits of the case and show they would suffer irreparable damages if the mural wasn’t restored. For the current motion, the plaintiffs have to show that a reasonable person would conclude that the mural represents the speech of the artist who created it, he said.
Taylor said she does not plan to be at Thursday’s hearing, but remains hopeful the mural will be returned to the Labor Department.
“I’m anxious for the mural to return so people can view it,” Taylor said.
Robert Shetterly, an artist from Brooksville and one of the lawsuit plaintiffs, is hoping Woodcock will take a closer look at the arguments after LePage last September gave a new explanation on why the mural was removed.
LePage told Brian Williams of NBC News that the decision had nothing to do with the painting’s pro-labor content as he had said before, but rather because the money that paid for it came from the state’s unemployment insurance fund.
“They robbed that account to build that mural. Until they pay for it, it stays hidden,” LePage told Williams.
Shetterly said, “What we’re hoping is that because some of the things the governor said on national TV last summer contradicted some of the things he said before about the reasons for taking down the mural, the judge will look at that and say, ‘Hmmm, the governor isn’t even standing behind the only sound defense he had, which is government speech.'”
Young said LePage’s change of explanation is relevant and probably will come up at Thursday’s hearing.