March 1, 2012

Labor mural court case begins

By Susan M. Cover
State House Bureau

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.

About the mural

Judy Taylor of Tremont was hired by the Baldacci administration to create a mural for the lobby of the Department of Labor’s headquarters in Augusta.
The 11 panel oil-on-board mural depicts historic scenes such as a shoe worker strike in Lewiston and the Triangle Shirtwaist Factory fire in New York City, where 146 garment workers died. The mural was unveiled in August 2008.
Labor Commissioner Laura Fortman said she wanted something in the new office building to remind employees of the reason for the department. She said the mural “celebrates workers in our economy and honors the struggles and achievements of those who worked so hard to ensure protections.”
The $60,000 mural was paid for, in part, through a grant from the U.S. Department of Labor. Also, Fortman said, she sold three Persian rugs from her previous office on eBay to generate needed money.

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.

(Continued on page 2)

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