AUGUSTA — How the public views art in a public space — as a message from the government or an opinion of the artist — will be at issue in federal court in Bangor when arguments begin over whether Gov. Paul LePage could remove a pro-labor mural from a state building.
Oral arguments are scheduled to begin today in the lawsuit over LePage’s decision last year to remove the 11-panel, 36-foot-long mural from the waiting area at the Maine Department of Labor’s headquarters.
His decision outraged artists and unions. Hundreds of people clogged the halls in the building to protest the order, and some sued after the mural was taken down and stored in a secret location.
The lawsuit alleges that LePage violated the First Amendment because the “government has no power to restrict expression because of its message, its ideas, its subject matter or its content,” according to the plaintiffs, who want the mural rehung.
The state, represented by Deputy Attorney General Paul Stern, argues that LePage exercised his right to government speech, which allows elected leaders to “decide what the state of Maine says or does not say about itself,” according to court documents.
Jonathan Beal, an attorney representing the five Mainers who sued the governor, says it will send a dangerous signal to the arts community if LePage’s action is determined to be government speech.
“How does a person walking into the Department of Labor view the mural?” he said. “Is it what the government says or would the public seeing this say this is a work by Judy Taylor?”
Taylor, of Tremont, was paid $60,000 — most of it federal money — by the Baldacci administration to create the mural, which depicts scenes from labor history. It shows shoe factory workers in Lewiston, workers casting ballots in a union vote, and scenes from a factory fire in New York City that killed 146 workers in 1911.
The mural went up in 2008, when the Department of Labor consolidated offices on Commerce Drive in Augusta. Last March, the LePage administration told the department to take the mural down, because it was one reason the building was “not perceived as equally receptive to both businesses and workers.”
If U.S. District Judge John Woodcock Jr. determines that the governor was exercising government speech, case law suggests LePage was within his rights to take the mural down.
Stern and Beal both point to a 2009 Supreme Court case as most relevant to the mural case in Maine.
In Pleasant Grove City, Utah v. Summum, the court ruled that the city had the right to refuse to put up a religious monument in a public park because it was exercising its right to government speech.
The case involved a group that wanted the city to erect a monument containing the Seven Aphorisms of Summum, described as a precursor to the Ten Commandments. Summum, a religious organization founded in 1975, describes its mission as “to help you liberate and emancipate you from yourself.”
The commandments already were displayed in the city park, and the group argued that its right to free speech was violated by the city’s refusal to display its monument.
The justices ruled that the city had the right to accept or reject privately donated monuments because it had a right to government speech.
In Maine, the state won an initial victory in April, when Woodcock rejected the plaintiffs’ request for a temporary restraining order to compel LePage to reveal the location of the mural, to protect it from damage and to put it back up in the same location.
Woodcock ruled that LePage’s action was government speech.
“The messages from the state-owned works of art are government speech and Maine’s political leaders, who are ultimately responsible to the electorate, are entitled to select the views they want to express,” he wrote.
In the decision, Woodcock said that by removing the mural, LePage actually drew far more attention to what had been an unknown artwork.
“The mural, which had previously hung in an obscure corner of a small state anteroom known only to a few, is now center stage in a roiling, vigorous and widely reported controversy,” he wrote. “Although it may be counter-intuitive, the immediate result of the suppression of this work of art has been the generation of considerable public speech about this work of art.”
In today’s scheduled proceedings, the state will argue that the complaint should be dismissed because LePage’s action clearly was government speech.
Beal will argue otherwise.
“The Taylor mural was her own independent work,” Beal said. “The people viewing it would not consider it to be the government speaking.”
He argues that the case goes beyond the mural.
Since 1979, the state has had a program that requires 1 percent of the cost of new public buildings to be spent on artwork in public spaces. The outcome of the mural case could keep artists from seeking state work, he said.
“It’s very important for the future of public art in the state of Maine,” he said. “If the state now asserts authority by saying if it pays for it, it’s government art that can be taken down at will, most artists won’t participate anymore.”
Susan Cover — 620-7015