Battle over LePage labor mural removal moves to appeals court in Boston

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.
By Judy Harrison, BDN Staff
Posted Oct. 28, 2012, at 5:38 p.m.

The legal battle over Gov. Paul LePage’s removal of a labor history mural from the lobby of the Maine Department of Labor moves Nov. 5 to the 1st U.S. Circuit Court of Appeals in Boston, where a three-judge panel will hear oral arguments in the case.

Lawyers for the plaintiffs argued in their brief filed in July that U.S. District Judge John Woodcock erred when he concluded in March that LePage’s removal of the mural amounted to “government speech” rather than a violation of the public’s free speech right to view the art or the artist’s right to display it. The federal judge said that because Maine owns the mural, it is free to do what it wants with the artwork.

“We believe here that Gov. LePage has overstepped the limits and that reasonable individuals could conclude based on all of the facts of this case that the mural was not government speech, but rather was the speech of artist Judy Taylor,” Portland attorney Jeffrey Young, who represents the plaintiffs, said in July.

The 11-panel 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 was not in keeping with the pro-business message of his administration.

The lawsuit was filed the following month in federal court in Bangor.

The plaintiffs are Don Berry of Sumner, president of the Maine AFL-CIO; John Newton, an industrial hygienist of Portland; and three Maine artists: Robert Shetterly of Brooksville, Natasha Mayers of Whitefield and Joan Braun of Weld.

Taylor, who created the mural, is not a party to the lawsuit.

The plaintiffs are asking the appellate court to reverse Woodcock’s decision and send the case back to federal court in Bangor for a trial before a jury.

“A reasonable juror could conclude that the mural does not constitute government speech because the state did not effectively control the message conveyed by the mural, and observers of the mural would reasonably and routinely understand it to convey the message of the artist, as opposed to the government,” Young argued in his brief to the 1st Circuit. “In addition, even if the mural were deemed to be ‘government speech,’ the governor’s removal of the mural solely in order to suppress its perceived ‘pro-union’ message nevertheless violates the First Amendment.”

Assistant Attorneys General Paul Stern and Sarah Forster disagreed in their brief to the appellate court.

“A reasonable observer’s understanding might be one of several factors for the court to consider but here it is hard to understand how a reasonable observer would not perceive that a pro-labor mural that fills a small waiting room in the bowels of the Department of Labor building, with a plaque accompanying the mural that it was Commissioned for the Department of Labor, as anything other than government speech,” they wrote on behalf of LePage.

Young countered in his brief that on the third wall of the same room where the mural was displayed is a framed 19th century pamphlet advocating for the defeat of protective child labor laws.

“Given the fact that MDOL is charged by statute with enforcing just such protective child labor laws, it seems unlikely that reasonable observers would think that the views in this pamphlet represented the views of the government,” the plaintiffs’ attorney said. “A reasonable viewer likely would understand that to the extent it was perceived to convey a message, the mural no more necessarily reflected the view of the MDOL than did the pamphlet.”

Another issue in the case is whether the so-called message conveyed in the artwork was controlled by the committee that selected Taylor or the artist herself.

“During its deliberations, the committee did not discuss what message Taylor’s mural would convey or what message or viewpoint, if any, the committee wanted the finished mural to express,” Young wrote. “Instead, [labor historian] Charles Scontras recalls that the committee selected Taylor because they found her style inviting to the eye and felt she was likely to create clear and understandable representations.”

Lawyers for the state said in their brief that Taylor was chosen “to convey the [Labor] Department’s goal regarding the labor mural.”

“She did not have free rein to do anything she wanted,” they wrote “The mural was not displayed because Taylor painted it — it was displayed because it was conceived of by the department, paid for by the department, and obviously viewed as presenting the department‘s message.”

The appeals court is not expected to issue a decision in the case until after the first of the year.

The names of the three appellate court judges assigned to the panel that will hear oral arguments were not available Sunday through the court’s electronic case filing system.

The state’s brief did address a concern that has been expressed about how the mural is being stored but did not reveal where it is being kept.

“The mural has been and is now in appropriate birch wood cases,” the brief said. “The mural is stored safely in an appropriate, climate-controlled environment. Although there were several ideas to display the mural elsewhere, those are now on hold pending the outcome of this litigation. But for this litigation, the mural would be on display today.”

LePage’s decision to remove the mural and the lawsuit that followed 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 a September 2011 interview with NBC’s Brian Williams that his objection stemmed from the source of the money used to pay for the mural.

How the mural was funded is not an issue in the pending litigation.

http://bangordailynews.com/2012/10/28/news/state/battle-over-lepage-labor-mural-removal-moves-to-appeals-court-in-boston/ printed on September 23, 2014