BANGOR, Maine — The fate of a 36-foot mural depicting Maine’s labor history is now in the hands of a federal judge.
U.S. District Judge John Woodcock will decide whether the artwork is government speech or private speech under the First Amendment in a lawsuit filed last year over the removal of the mural at the behest of Gov. Paul LePage.
The lawsuit claims that LePage violated the mural artist’s constitutional right to free speech when he ordered the mural removed from state Labor Department’s offices last March. LePage had it removed because he considered it biased in favor of organized labor over business interests, according to previously published reports.
Woodcock heard oral arguments Thursday on the state’s motion for summary judgment. If the judge rules in the state’s favor, the case would be dismissed. If he rules for the plaintiffs — three artists, an attorney and two people who have said they regularly visit the Department of Labor building — the case would go to trial.
Deputy Attorney General Paul Stern argued that because the state, during Gov. John Baldacci’s administration, originated the theme, picked Judy Taylor to be the artist, accepted her proposal for the work, reviewed the art as it was being formed and paid $60,000 for it in 2008, the mural is government speech.
Jonathan Beal of Portland, who represented the plaintiffs, said the Tremont artist, who is not a party in the lawsuit, submitted an affidavit to the court stating that she was not guided by the parameters outlined in the call for artistic proposals while she was creating the work.
“The state must express its own ideas for it to be government speech,” Beal told Woodcock. “Just because art is paid for by the state does not make it government speech.”
“By your logic, every time the government commissions works of art, it’s never government speech, it’s always an expression of the artist’s creativity,” Woodcock said.
The judge expressed concern that whenever there is a change of administration and a piece of art were to be removed, a federal lawsuit could be filed.
“Are there enough judges and lawyers in the state to handle that?” Woodcock asked.
Beal told Woodcock that he did not think there would be a spate of lawsuits over artwork.
“This is a one-time event brought on by the intemperate actions by a governor, which caused understandable political and artistic reaction,” Beal said. “I think there are already regulations in place to allow for the orderly resolution of disputes about the public showing of art owned by state.”
He also said that artwork such as the mural is actually owned by the Maine State Museum, which has a procedure for removing it that LePage did not follow. If the case survives summary judgment, that could be an issue to be decided by a jury.
“It is totally unnecessary to have a trial,” Stern countered.
He said the lawsuit was a political move to discredit the governor.
“The plaintiffs really resent the state constantly saying this is part of a political campaign,” Beal said. “I’m a Democrat, I admit it, but this is not part of a campaign.”
Outside the courthouse, Stern said the state considers the debate over the mural to be “a political question better left to the political back and forth instead of having a court decide it.”
Beal said after the hearing that his clients view the removal of the mural as “censorship by the state based on a political viewpoint that they attribute to the mural.
“In fact, the mural doesn’t have a political point of view,” the attorney said. “It is pro-worker, but that doesn’t make it Republican or Democrat. We would have hoped that Governor LePage and his people would not have a problem with something that is pro-worker.”
The mural 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.
LePage ordered the mural removed in March 2011 because he said it presented a one-sided view of history and wasn’t in keeping with his pro-business agenda. The lawsuit was filed April 1 in U.S. District Court in Bangor.
On April 22, Woodcock denied a motion for a temporary restraining order that would have forced LePage to return the mural. The judge agreed with the governor that the removal of the mural was “a constitutionally permissible exercise of gubernatorial authority.”
The legal standard under which he denied the previous motion to issue a temporary restraining order is different from the one that he will apply to the motion for summary judgment, filed June 16, according to a previously published report.
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, according to Beal.
There is no timeline under which Woodcock must issue a decision.
The Associated Press contributed to this report.