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Federal judge says LePage’s decision to remove mural was ‘government speech’

Panel 8 (center) of the controversial labor mural removed by Gov. LePage shows Francis Perkins, President Franklin Roosevelt's labor secretary and an untiring labor activist. Some Republicans claimed that a face in that panel bears a striking resemblance to former Department of Labor Commissioner Laura Fortman.
Courtesy of Judy Taylor Fine Art
Panel 8 (center) of the controversial labor mural removed by Gov. LePage shows Francis Perkins, President Franklin Roosevelt's labor secretary and an untiring labor activist. Some Republicans claimed that a face in that panel bears a striking resemblance to former Department of Labor Commissioner Laura Fortman.
Posted March 23, 2012, at 12:39 p.m.
Last modified March 23, 2012, at 6:21 p.m.

BANGOR, Maine — A federal judge on Friday ruled in favor of Gov. Paul LePage in a lawsuit concerning the governor’s controversial removal of a Department of Labor mural, saying LePage’s action amounted to “government speech.”

In a 90-page opinion, U.S. District Judge John A. Woodcock Jr. granted motions for summary judgment in favor of LePage and members of his administration. The judge also dismissed two counts of an amended complaint filed by the plaintiffs.

The decision essentially denied a trial of the lawsuit seeking to compel LePage to restore the mural to the walls of the Department of Labor building in Augusta.

“The prospect of [hauling] a sitting governor into federal court to be cross-examined under oath as to why he made a political decision may momentarily cheer the partisan,” Woodcock wrote. “But the long-term implications of federal court intervention in state politics are sobering.”

The judge said that because Maine owns the mural, it is free to do what it wants with the artwork.

“The record establishes that the idea for the commissioning of the mural began with the state of Maine, that Maine established its theme, that Maine commissioned its creation, that Maine chose the artist, that Maine paid for the mural, that Maine owns the mural, that Maine displays (or not) the mural on its own property, and that Maine even has the right to destroy it,” Woodcock wrote.

The judge said the state of Maine engaged in “government speech” when it commissioned and displayed the mural.

“It follows that Gov. LePage also engaged in government speech when he removed the mural,” Woodcock wrote. “The governor’s message — whether verbal or in the form of the expressive act of removal — is government speech.”

LePage’s decision to remove the mural, which contains 11 panels depicting the history of Maine’s labor movement, gained national attention, including a disapproving editorial in The New York Times and sendups by political comedians such as Jon Stewart and Stephen Colbert.

LePage initially stated that the mural displayed a one-sided view of Maine’s labor history, but said later during an interview with NBC’s Brian Williams that his objection stemmed from where the money used to pay for the mural was obtained.

“Regardless of Judge Woodcock’s opinion, while we may not have yet prevailed in the court of law, we already have prevailed in the court of public opinion,” the plaintiffs’ attorney, Jeffrey Neil Young, said in a statement. “Mainers recognize what the court has failed to appreciate, that the removal of the mural is nothing less than government censorship of artistic speech in violation of the First Amendment.”

Young added that the plaintiffs were still studying the opinion and would decide in the near future whether to appeal the ruling to the 1st Circuit Court of Appeals in Boston.

“We’ve always believed that this was a frivolous, politically motivated lawsuit,” said LePage spokeswoman Adrienne Bennett. She said it would be “stunning” if government officials were barred from making decisions about what artwork can hang in public buildings.

Bennett declined Friday to disclose the whereabouts of the mural, saying only that it is in storage and in a safe place.

That place, however, is not the Maine State Museum, deputy director Sheila McDonald said Friday.

“It is not here,” she said. “We don’t have it at the museum. I actually don’t know where it is, but it’s my understanding that it’s in a safe place.”

Bennett said Friday that no plans have been made with regard to displaying the piece in the near future.

“The [court] decision just came down today and we’ll be revisiting those questions in the coming days,” after the governor returns from his vacation in Jamaica, she said.

Brooksville artist Robert Shetterly, one of three Maine artists named as plaintiffs in the lawsuit, expressed disappointment at Woodcock’s ruling.

“I have found Judge Woodcock to be an astute and thoughtful person,” Shetterly said Friday in a telephone interview. “However, I think he’s wrong about this being a matter of government speech. His decision is basically timid. I think it’s a sad decision.”

Shetterly, who travels to classrooms throughout Maine and across the country to speak about his “Americans Who Tell The Truth” series of portraits, said the ruling wasn’t a total surprise to him since Woodcock earlier had expressed reluctance to intervene in the matter. Shetterly said Woodcock had earlier suggested the “best remedy was the ballot” instead of a court ruling.

“The whole doctrine of government speech is a fallacious one,” he said. “This is just honest history, pure and simple. No one can argue with the depiction of Maine’s labor history that’s in the mural.”

Maine Attorney General William J. Schneider applauded Woodcock’s decision.

“One of the cornerstones of American democracy is free expression — by individuals and the government,” Schneider said in a statement. “As citizens, we want our government officials to speak and express their views. Any effort by a small group to attempt to control government’s speech by bringing elected officials to trial should be viewed as a threat to our democratic principles. I am pleased that the court agreed that just as individuals are free to speak, so too is the government.”

Jason Savage, executive director of the West Enfield-based group Maine People Before Politics, also issued a statement supporting the ruling.

“Hopefully this closes yet another chapter in the history of those who would rather play politics than restore Maine’s promise,” said Savage. “From the beginning, Maine people could see that this lawsuit was not about right and wrong, it was about people who disagreed with the governor making a political statement.”

BDN staffers William P. Davis and Dawn Gagnon contributed to this report.

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