Battle over LePage labor mural removal moves to appeals court

Bangor Daily News/Courtesy of Judy Taylor Fine Art

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.

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Comments

Diana Currier's picture

so

you love him so much maybe you can get it out of him where the hell he put it. It was NOT his property to RUIN!

Ellen Levesque's picture

If it is a piece of history

If it is a piece of history then put it in the museum, and FYI, the strike in Jay was in 1987-not 1986 as stated in the article. This whole thing is a waste of taxpayer money. LePage is governor, even if some don't like it and that is that.

KATHY WILLIAMSON's picture

That isn't true. the Maine

That isn't true. the Maine department of Labor stated mission is as follows:

Assisting individuals, families and communities when jobs are lost;
Helping people prepare for and find jobs;
Protecting workers on the job; and
Researching and analyzing employment data to support job growth.

James Mickalide's picture

Wrong Venue

The mural may be a part of history but being displayed in the Department of Labor without showing an opposing viewpoint was not right. The Dept of Labor is suppose to be nonpartisan with no stake in either side.

Dana Burgess's picture

Waste

What a waste of time and tax payer money.

Jason Theriault's picture

First off

I actually saw the mural, in the room, and it was WAY out of place. I mean, it's a tiny room, and the mural overpowers the whole place. So I can see how someone would be uncomfortable around it. Hell, I was uncomfortable around it, and I have no issue with unions.

What they should do is put it up in the hallway outside the office. It's nice and long so it won't overpower anything, and then people can see it, as the room it was in wasn't generally open to the public.

Diana Currier's picture

/

or they at least have the right to have it back too, but I have a feeling it's destroyed and he wouldn't even tell them where it is.

Diana Currier's picture

;

It is the sneaky way he took it that got me...

FRANK EARLEY's picture

I hope common sense wins out.....

LePage was wrong on this from the very beginning. He had no right to deny people a right to honor their history. That's what this mural depicts, history. The history of the working people of Maine.
If LePage really remembers his days of raising hell, as a child, in Little Canada, then he should remember all the people who went to work in the mills. I remember the folks who worked in the shoe shops many years ago. I also remember having to drive a truck through a picket line in Jay, even though I had nothing to do with the strike, I experienced the anger.
All this is the peoples history, why this offends LePage is beyond me. Like most everything else he does, he's wrong on this as well. We have a right to our "Labor History". It's time LePage does something right for a change.......

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