June 22, 2018
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Boston court hears appeal for ‘most famous piece of artwork’

Judy Taylor Fine Art | BDN
Judy Taylor Fine Art | BDN
Artist Judy Taylor created a series of panels depicting important times in Maine's labor history, and they have been on display at the Maine Department of Labor offices in Augusta since 2008 until Gov. Paul LePage ordered the panels removed.
By Judy Harrison, BDN Staff

The legal battle over what one lawyer called “the most famous piece of artwork in Maine” moved Monday to Boston, where the First U.S. Circuit Court of Appeals heard arguments over the removal of a mural depicting the state’s labor history.

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.

Gov. Paul 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. U.S. District Judge John Woodcock ruled earlier this year that the mural constituted “government speech” and the governor was within his rights to remove it.

Monday’s hearing was an appeal of his decision.

The three-judge panel considering the case is made up of Sandra Lynch, Michael Boudin and Douglas Woodlock, all of Boston. Lynch and Bowden are appellate judges. Woodlock is a U.S. District Court judge in Boston.

District court judges may be appointed to hear cases on appeal by the chief judges of the circuit courts. Lynch, who serves as chief judge of the First Circuit, appointed Woodlock to serve on the panel.

A podcast of the oral arguments was posted on the appellate court’s website late Monday afternoon.

“What the government is saying is that it doesn’t want to be associated with the message of the mural in that space that a reasonable person could take away from the mural,” Lynch said to Jeffrey Young, the Portland attorney for the plaintiffs, a group of artists and labor advocates. “[The government is] making a choice not to be associated with the speech that it owns, the expression that it owns — something it bought and paid for.”

Young said it does not matter how the mural was paid for or who owns it. What is important it that it was displayed in a public space.

“Viewers have the same right under the First Amendment that the artist has to display the art,” the attorney said. “There is a long history in Maine of art being displayed in public buildings and people understand that it is not the artwork of the government but the artist.”

Judge Boudin said the place and context in which the art was displayed could influence how people experienced or interpreted it.

“Obviously if you see a mural signed by somebody, you know it was not painted by the government,” Boudin said. “Depending on where it was hung and the relationship to the content [of the artwork], it could be an expression of government.”

Deputy Maine Attorney General Paul Stern said that Young and his clients’ concern was not the First Amendment.

“The plaintiffs really don’t want free speech here,” he said. “What they want is speech that they like to be there for as long as possible.”
Stern suggested that a mural depicting L.L. Bean showing the number of jobs he created over the past century in the state of Maine could replace the artwork that had been removed.

“Now, this is the most famous art in the state of Maine,” he said of the labor mural. “The state is not saying it doesn’t want this seen. It’s saying it doesn’t want it seen in this small waiting room where people going into workers’ compensation hearings have to look at it.”

Under some circumstances, the labor mural could appear to be critical of how business has been conducted in Maine, Stern said.

The lawsuit that sparked the appeal was filed in April 2011 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.

Artist Judy 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.

There is no timetable under which the court must issue a decision.

To listen to oral arguments in the case, visit http://www.ca1.uscourts.gov/files/audio/12-1472.mp3.

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