Maine judge weighs arguments in controversial labor-mural case

A lawsuit challenging the governor's decision to remove a mural from the Maine Department of Labor's headquarters is politically motivated and should be dismissed, an attorney representing Gov. Paul LePage told a federal judge Thursday.

Deputy Attorney General Paul Stern argued that the governor clearly had the right to remove the pro-labor mural from the lobby of the office building in Augusta last year. The state hired the artist, paid for the mural and helped to direct its content, he said.

"If this is not government speech, I'm not sure what can be," Stern said after the 90-minute proceeding in U.S. District Court.

Attorney Jonathan Beal countered that the plaintiffs did not sue the governor for political reasons, but because of his decision to ignore state rules for how state works of art are to be moved or removed from certain public spaces.

He said LePage's unilateral decision to remove the mural on a Saturday, after public protests, prompted the lawsuit, in which the plaintiffs claim that LePage violated the First Amendment.

"I resent (the state) saying this is a political witch hunt or campaign," Beal said.

Judge John Woodcock Jr. heard oral arguments Thursday in the case brought against LePage last year by two union officials and three artists.

The plaintiffs are hoping for a jury trial on the removal of the mural painted by Judy Taylor of Tremont. The state paid Taylor $60,000 for the 11-panel mural, which went up in a small waiting room at the Department of Labor in 2008.

Woodcock's decision is expected in the coming weeks.

If he determines that LePage's action was government speech, the case will likely be dismissed, because the U.S. Supreme Court has ruled that "when the government speaks, it is not subject to the Free Speech Clause of the First Amendment," according to court documents.

Part of Beal's case rests on his ability to convince Woodcock that people who saw the mural in the building's lobby would have known it was a work of art, not a message from the state. Although Taylor responded to a request for proposals that outlined the type of mural the state wanted, she used broad artistic license in creating her work, he said.

"If the artist is expressing her ideas, even if it is paid for by the state, it is not government speech," he said.

Arguing for the state, Stern told Woodcock that if the case goes to a jury trial, it will give political parties in Maine a new way to try to discredit each other.

"If the governor of the state of Maine is called as a witness, any card-carrying politician is going to use this scheme to try to discredit this governor and every other governor in the state of Maine," he said. "If we're going to have a trial every time a state or federal official says something, puts up a monument, takes down a monument, you're going to be very busy."

Woodcock peppered both attorneys with questions throughout the proceeding, pushing them to stay on point and not letting them stray into long arguments.

"As I understand it, the plaintiffs' main point is that the question, narrowly defined, comes down to, whose art is it?" Woodcock said.

"If it's the government's art, there's one form of analysis. If it's the artist's, it's another," he said. "The First Amendment prohibits government from abridging private speech. But it does not prohibit the government from speaking for itself, or not speaking."

By Susan Cover, Maine Today Media State House Writer, scover@mainetoday.com, 620-7015

Source: The Kennebec Journal