Newton v. LePage , 700 F.3d 595 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 12-1472
JOHN NEWTON; DONALD BERRY; JOAN BRAUN;
NATASHA MAYERS; ROBERT SHETTERLY;
Plaintiffs, Appellants,
JONATHAN S.R. BEAL,
Plaintiff,
v.
PAUL LEPAGE, in his capacity as Governor of the State of Maine;
JOSEPH PHILLIPS, in his capacity as Director, Maine State Museum;
RICHARD J. WINGLASS, in his capacity as Commissioner of the Maine
Department of Labor;
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and Woodlock,* District Judge.
Jeffrey Neil Young, with whom Carol J. Garvan, Jonathan
S.R. Beal, and McTeague Higbee were on brief, for appellants.
Paul Stern, Assistant Maine Attorney General, with whom
William J. Schneider, Maine Attorney General, and Sarah A. Forster
were on brief, for appellees.
*
Of the District of Massachusetts, sitting by designation.
November 28, 2012
LYNCH, Chief Judge. The question presented is whether
the governor of Maine violated the First Amendment by removing a
large state-owned mural, commissioned by the former administration,
from its location on the walls of a small waiting room for visitors
to the Maine Department of Labor ("MDOL"). The governor's initial
stated reason was that he agreed with complaints that the mural did
not convey a message of evenhanded treatment toward both labor and
employers and so the mural was inappropriate for that particular
setting at MDOL. At the same time, he said the mural would be
placed into a different public building, the Portland City Hall.
Later, the governor added that he objected to the mural's remaining
at the MDOL location because the mural had been paid for from
government funds which would better have been used for the state
unemployment fund. To be clear, the governor's stated objections
were to the location of the mural on the MDOL walls; he stated the
mural would be reinstalled in another building.
Whatever the wisdom of the decision to remove the mural
from that location, the accountability for that decision lies in
the political process. The district court correctly entered
judgment for defendants on plaintiffs' claims of a First Amendment
violation. Newton v. LePage, 849 F. Supp. 2d 82 (D. Me. 2012).
I.
In 2007, the administration of Maine Governor John
Baldacci commissioned Judy Taylor, a Maine painter, to produce a
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mural for the small public waiting room of the MDOL's offices in
Augusta. The sign on the waiting room stated:
Maine Department of Labor
Commissioner of Labor
Employment Service
Rehabilitative Services
Labor Standards (Safety Works)
Unemployment Compensation
Administrative Hearings
Center for Workforce
Research and Information
Contested administrative workers' compensation hearings between
employers and employees were held in the offices, as well as other
activities. MDOL rented these offices in a privately owned
building that also housed the offices of private entities.
Under the contract between MDOL and Taylor, MDOL paid
Taylor $60,000 for a "Maine Labor Mural" consisting of "panels
depicting selected episodes in the history of Maine labor" whose
"permanent location" was the "Department of Labor, Augusta, Maine."
The mural appears to be about six feet high and thirty feet long
spanning two walls. The contract provided that "[o]fficial sole
ownership [by the state] of the work occurs when a letter of final
acceptance is sent by the contracting agency to the artist," and
that:
The work will be placed in the location for which it was
selected. The contracting agency agrees that the artist
and the Commission will be notified if, for any reason,
the work has to be removed or moved to a new location.
The artist and the Commission have the right to advise or
consult with the contracting agency or its designee
regarding this treatment of the work.
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The contract plainly contemplated that the mural could be shown in
a different location and the artist's consent was not required.
The mural was paid for using both Maine and federal
funds from the federal Reed Act, 42 U.S.C. § 1103 (regarding
employment security funds); the Bureau of Labor Standards; the
Bureau of Rehabilitation Services; the Center for Workforce
Research and Information; and the MDOL Overhead account in the
Commissioner's Office. The mural was not funded by Maine's public
arts program, the Percent for Art program,1 and was not a Percent
for Art project.
On August 9, 2008, the completed mural was installed in
an anteroom at the MDOL where visitors typically waited before
meetings with MDOL staff. The mural contained panels which
depicted a shoemaker teaching an apprentice, child laborers, women
textile workers, workers casting secret ballots, the first Labor
Day, woods workers, the 1937 shoe strike in Lewiston and Auburn,
labor reformers, women workers during World War II, the 1987 strike
at the International Paper Mill in Jay, and the future of Maine
labor. Next to the mural was a plaque stating:
Judy Taylor
History of Maine Labor
Oil Paint Mural, Eleven Panels
1
The state Percent for Art program requires agencies
constructing public buildings or facilities other than schools or
correctional facilities to spend at least 1% of money appropriated
or allocated for construction by the Maine Legislature on works of
art. 27 Me. Rev. Stat. tit. 27, § 453(1).
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2008
Commissioned for the Department of Labor and
Administered by the Maine Arts Commission
"building Maine communities through the arts"
The waiting room measures twelve feet by twenty-six feet in area.
The mural covered two contiguous walls above a knee wall. Three
sides of the waiting room are lined with nine chairs, and on the
fourth side is a receptionist behind a security window. The
waiting room also, at the time the mural was present, displayed a
framed 19th century pamphlet urging employers to oppose the passage
of a child labor bill. It, too, was later removed.
Inside the MDOL offices, but not in the waiting room,
there were framed pictures in the "Frances Perkins" conference
room, nearly all of which depicted Perkins.2 There were no
bulletin boards or other locations for members of the public to
post materials in the MDOL waiting room or in the corridor leading
to it.
2
Perkins, who had strong family roots in Maine and returned
to a family homestead in Maine virtually every summer of her life,
was appointed Secretary of Labor by President Franklin Roosevelt in
1933, becoming the first female Cabinet member. See Dictionary of
American Biography 607-10 (Supp. VII 1981). The five pictures
displayed in the "Frances Perkins" conference room were: (1) a copy
of a newspaper article profiling Perkins from the 1930s; (2) a
photo of Perkins with President Roosevelt; (3) a drawing of the
Triangle Shirtwaist Fire by Clinton Kamp; (4) a photo of Perkins;
and (5) a copy of a Time magazine cover featuring Perkins and a
postcard of Perkins. When announcing the removal of the mural,
the acting Commissioner of the MDOL also stated an intention to
rename the conference room.
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On January 5, 2011, Paul LePage was sworn in as Governor
of Maine. One of his advisors, John Butera, had visited the MDOL
waiting room before January of 2011 on business and considered the
mural to be overwhelming, pro-labor, and anti-business. On
February 28, 2011, the Office of the Governor received an anonymous
letter complaining that the mural was "propaganda" meant to further
the union movement and asking Governor LePage to take the mural
down. The governor's press secretary, Adrienne Bennett, also
stated that several unnamed business officials had complained about
the mural.
On March 22, 2011, Laura Boyett, the Acting Commissioner
of MDOL, sent an email to MDOL staff stating that:
We have received feedback that the administration
building is not perceived as equally receptive to both
businesses and workers -- primarily because of the nature
of the mural in the lobby and the names of our conference
rooms. Whether or not the perception is valid is not
really at issue and therefore, not open to debate. If
either of our two constituencies perceives that they are
not welcome in our administration building and this
translates to a belief that their needs will not be heard
or met by this department, then it presents a barrier to
achieving our mission.
I will be seeking a new home for the mural and we will be
renaming the conference rooms in our administrative
office at Commerce Drive in Augusta.
Word of the removal reached the media. On March 22, 2011, Taylor
learned from a reporter about Governor LePage's intention to remove
the mural. Later that week, Adam Fisher, the communications
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director for MDOL, telephoned Taylor and informed her that the
mural was going to be removed.3
On March 23, 2011, Dan Demeritt, a spokesperson for
Governor LePage's administration, stated, as to the plans to remove
the mural, that "[t]he message from State agencies needs to be
balanced" and that "we were merely looking to achieve a little
aesthetic balance." On March 24, 2011, press secretary Bennett
stated that "[t]he Department of Labor is a state agency that works
very closely with both employees and employers, and we need to have
a décor that represent[s] neutrality."
On March 25, 2011, the governor issued a press release
saying:
Without workers and employers, we do not have an economy.
Maine's Department of Labor needs to serve and balance
the interests of both employees and employers to
accomplish its mission. I encourage anyone with artwork
that celebrates the cooperation that exists in Maine's
workplaces to consider offering it for display at any
Department of Labor or Career Center Location.
I appreciate the effort and talent Ms. Taylor devoted to
the creation of her mural as well as the important
history it represents. I am pleased that her work of art
will be prominently displayed in Portland City Hall, the
site of Maine's first State House. (emphasis added).
3
During this call, Taylor neither agreed nor disagreed with
the removal of the mural from its original location. Taylor's
affidavit stated that "I am concerned about how the mural panels
are being stored, how they were taken down, and how the removal may
impact their condition," but she did not otherwise state that she
opposed the mural's removal.
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Appellees represented at oral argument that the mural has not yet
been reinstalled elsewhere because of the pendency of this
litigation.
In a radio program, Governor LePage stated that "I'm
trying to send a message to everyone in the state that the state of
Maine looks at employees and employers equally, neutrally and on
balance. The mural sends a message that we're one-sided, and I
don't want to send that message." The governor ordered the mural
removed based on the complaints he had received and on his own
perception that the mural was a one-sided portrayal of labor
history, not acceptable to business interests.
On March 27, 2011, the mural was removed from the MDOL
offices. The framed 19th century pamphlet urging employers to
oppose the passage of a child labor bill was removed at the same
time; the pamphlet was later returned to its donor upon his
request. Bennett released a statement on March 28, 2011,
explaining that "[t]he mural has been removed and is in storage
awaiting relocation to a more appropriate venue."4
4
On May 16, 2011, a Maine Deputy Attorney General wrote to
Taylor explaining that "[t]he mural has been carefully placed in
crates made of birch wood. The mural is being stored in a safe,
secure, climate-controlled room. . . . At this time, no final
decision has been made regarding where the mural will be displayed.
The present litigation has placed that decision on hold, and we
will not be finalizing that decision until the litigation has
concluded."
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On September 26, 2011, after the removal of the mural had
provoked controversy, Governor LePage was interviewed and asked
whether he was opposed to organized labor. In reply, he stated
"[m]y objection to the mural is simply where the money came from.
The money was taken out of the unemployment insurance fund which is
dedicated to provide benefits to unemployed workers. They robbed
that account to build the mural. And until they pay for it, it
stays hidden." Governor LePage stated that the mural's removal was
not because of any depiction of organized labor; indeed, he stated
he came up through organized labor.
During an interview in October of 2011, Governor LePage
stated that:
The Mural can go right back up tomorrow if they pay the
money that was used from the unemployment funds. If the
money is paid back, they can put it any place they want,
any time they want. But they took money from funds that
were not appropriate.
On September 28, 2011, press secretary Bennett issued a press
release stating that:
The Administration originally removed the mural because
of its messaging. The mural portrays only one party that
the Department of Labor serves -- workers not job
creators. In order to change the culture the decision
was made to find a more appropriate location for the
mural. It was then discovered how the mural was funded
and that these funds could have been put into the
Unemployment Trust Fund for Mainers to benefit from.
When the Governor learned of this it further supported
the decision.
This court has no information on whether there is now anything on
the walls of the waiting room. A fuller description of the facts
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is contained in the district court's thoughtful opinion. See
Newton, 849 F. Supp. 2d at 86-112.
II.
On April 1, 2011, plaintiffs John Newton and five others
filed a complaint in the U.S. District Court in Maine against
Governor LePage and the Commissioner of MDOL, now Robert Winglass,
and Joseph Phillips, the Director of the Maine State Museum.
Appellants are five5 Maine residents who had viewed the mural and
planned to view it again at the MDOL offices. They claimed that
the mural's removal "was impermissibly content- and viewpoint-
based." There was a contingent claim that the failure to conduct
a hearing before removing the mural violated plaintiffs' procedural
due process rights.6 That issue is not pursued on appeal.
III.
Our review on First Amendment cases is de novo as to
ultimate questions of law and mixed conclusions of law and fact.
Ridley v. MBTA, 390 F.3d 65, 75 (1st Cir. 2004). "Judges, as
expositors of the Constitution, must independently decide whether
the evidence in the record is sufficient to cross the
5
One plaintiff before the district court, Jonathan S.R. Beal,
is not a party on appeal.
6
Plaintiffs also asserted two state-law claims: a claim for
breach of fiduciary duty against Phillips, and a claim seeking
review of governmental action pursuant to Me. R. Civ. P. 80C. The
district court declined to exercise supplemental jurisdiction over
these claims and dismissed them without prejudice on March 23,
2012. See Newton, 849 F. Supp. 2d at 130.
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constitutional threshold." Bose Corp. v. Consumers Union of U.S.,
Inc., 466 U.S. 485, 511 (1984).7 Our review of the appellants'
First Amendment claim "carries with it a constitutional duty to
conduct an independent examination of the record as a whole,
without deference to the trial court." Hurley v. Irish-American
Gay, Lesbian, and Bisexual Grp. of Bos., 515 U.S. 557, 567 (1995).
Further, all of the facts needed to decide this question are not
disputed and none of the facts appellants say are disputed are
material to the legal questions. In particular, appellants do not
dispute that the State has represented that it will relocate the
mural and they have not provided evidence -- as opposed to
speculation -- to show that this representation will go unexecuted.
IV.
The usual initial question in claims of violation of
rights is whether the plaintiffs are the right parties to bring the
challenge. Appellees deny appellants have standing. As in
Griswold v. Driscoll, 616 F.3d 53, 56 (1st Cir. 2010), we think the
better course is not to attempt to disentangle the questions of
whether there is standing and whether there is a cognizable First
Amendment claim, and to dispose of the two issues together.
7
"We must ‘make an independent examination of the whole
record,’ so as to assure ourselves that the judgment does not
constitute a forbidden intrusion on the field of free expression."
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (citation
omitted) (quoting Edwards v. South Carolina, 372 U.S. 229, 235
(1963)).
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While the mural is itself not speech, the First Amendment
protects artistic as well as political expression, unless that
artistic expression is legally obscene, Miller v. California, 413
U.S. 15, 23 (1973). This is not a case in which the government
seeks to regulate the speech of private parties, the classic
problem to which the First Amendment is addressed. See People for
the Ethical Treatment of Animals, Inc. v. Gittens, 414 F.3d 23, 29
(D.C. Cir. 2005). Nor is it a case in which the government seeks
to compel a private individual to personally express a message with
which he disagrees or is compelled by the government to subsidize
such a message expressed by a government advertising campaign. See
Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005).
Rather, this is a case about private citizens attempting
to compel a governor to keep in place a mural, owned by the state,
in a particular location, the MDOL offices. They argue the
relocation is not a neutral time, place, and manner restriction but
is viewpoint-based discrimination.8 See Sutliffe v. Epping Sch.
Dist., 584 F.3d 314, 332 n.10 (1st Cir. 2009).
It is quite clear that the MDOL waiting room cannot be
called a public forum in any of the iterations of that doctrine.
8
The appellants concede that a decision to remove the mural
from its location based on reasons not motivated by viewpoint
discrimination would not violate the First Amendment. Rather than
explore the law governing mixed motives, we treat the appellants'
primary objection that the initial reason constituted viewpoint
discrimination.
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It is not a traditional public forum, nor a designated forum, nor
a limited forum. See Pleasant Grove City, Utah v. Summum, 555 U.S.
460, 469-70 (2009); Sutliffe, 584 F.3d at 333-34.9 The small
waiting room is not an art gallery, nor an exhibition space, nor a
library, nor an exercise in broadcasting. Nor is it a space open
to the public for demonstrations of political or expressive
activity. The waiting room also was not in a university or college
and there is no claim, nor could there be, of issues of academic
freedom. Further, the case concerns the relocation of the art from
this particular setting to another location, not the permanent
removal of the mural from all public view.
Both sides rely on the "government speech" doctrine as
described in Summum, 555 U.S. at 467-81, and Johanns, 544 U.S. at
560-67. Appellees say this mural is plainly government speech and
so there are no First Amendment concerns about its relocation at
all. The fact that the waiting room was of a government agency
which also owned the mural does not foreclose a First Amendment
claim. See Piarowski v. Ill. Cmty. Coll. Dist. 515, 759 F.2d 625,
628 (7th Cir. 1985) (Posner, J.).
Appellants argue the test for whether the mural is
government speech is whether a person in the waiting room could
9
The public forum analysis has been much criticized. See
Summum, 555 U.S. at 478-80; United States v. Am. Library Ass'n,
Inc., 539 U.S. 194, 205-06 (2003); Ridley, 390 F.3d at 75-76;
Frederick Schauer, Principles, Institutions, and the First
Amendment, 112 Harv. L. Rev. 84, 97-100 (1998).
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have reasonably understood the mural's views to be those
expressions of the artist and not of the government. They do
concede in their briefs that some have interpreted the mural as
conveying a pro-labor message. Appellants also argue that, even
assuming the mural's speech is government speech, the decision by
the governor necessarily was viewpoint discrimination. At oral
argument they added that they do not have to show there was some
form of public forum created.
We need not reach so broadly. These formulations of the
issues fail to capture myriad relevant factors under First
Amendment law, and are insensitive to the variety of factual
combinations which may arise. We see no reason to adopt an
"either/or" test -- that either the mural represents the artist's
speech or it is the government's speech. It is not the mural
standing alone which is at issue, but what the mural's presence in
the MDOL waiting room signified. The message the government did
not wish to portray, of non-neutrality, came from the particular
location of the mural; the government did not have an objection to
an alternative location.
The mural's prominence, filling two walls of a small
waiting room, alone would easily lead viewers to understand that
the government's location of the art there was an endorsement of
the mural's message, even if the expression originated with the
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artist. That is particularly so, given the plaque identifying the
work as being commissioned by the MDOL and paid for by the state.
The government, without violating the First Amendment,
may, in this setting, choose to disassociate itself from an
endorsement implicit from the setting for the mural, which it
reasonably understood as interfering with the message of neutrality
the administration wishes to portray. This is so whether the mural
is anti-labor or pro-labor. It is well established, in a number of
contexts, that maintaining the appearance of neutrality is a
sufficient government justification.10 Lehman v. City of Shaker
Heights, 418 U.S. 298, 304 (1974) (plurality opinion); Sutliffe,
584 F.3d at 331-32; Ridley, 390 F.3d at 92-93. Many cases
recognize that the government must have some discretion as to the
choice of art it puts on the walls of its offices, even where the
government is acting as an arts patron. It has discretion to make
aesthetic judgments, with which some will agree and others will
disagree. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569,
585-86 (1998); Gittens, 414 F.3d at 29-30.
Circuit courts have routinely rejected First Amendment
claims brought against government officials who have chosen to
remove art works, offensive to some but not others, from the walls
of working government institutions on the grounds they were
10
We do not suggest that if this were treated as government
speech neutrality would be required. Summum, 555 U.S. at 467-68.
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inappropriate to that location. Further, the law clearly gives
governments leeway to take into consideration the problem of the
captive audience and complaints it has received from those who
viewed the art work while visiting government offices for other
reasons. See Close v. Lederle, 424 F.2d 988 (1st Cir. 1970) (no
First Amendment violation from the removal by the University of
Massachusetts of certain offensive but not obscene art work from a
corridor frequented by students). As Judge Aldrich said in Close,
the defendants "were entitled to consider the primary use to which
the corridor was put." Id. at 990. The defendant officials were
also entitled to consider the complaints they had received, and
even if there had been no complaints, they were "warranted in
finding the exhibit inappropriate to that use." Id.; see also
Piarowski, 759 F.2d at 630-31 (no First Amendment violation where
college chose to remove from walls artwork whose prominence and
location implied college approval and not just custody); Ill.
Dunesland Pres. Soc'y v. Ill. Dep't of Natural Res., 584 F.3d 719(7th Cir. 2009) (no First Amendment violation when state park
decided not to display certain items on display racks).
The same is true of relocation of art work by the federal
government. See Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045(2d Cir. 1988) (removal of Richard Serra sculpture, commissioned by
GSA for a federal plaza, and relocation, after complaints, does not
violate First Amendment). In Serra, the court stated that "the
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Government's action in this case is limited to an exercise of
discretion with respect to the display of its own property" and
that "nothing GSA has done here encroaches in any way on Serra's or
any other individual's right to communicate." Id. at 1049.
Nor is there any violation of the First Amendment from
the fact that a newly elected administration chooses to convey a
different message than that conveyed by the administration it
replaced. See Advocates for Arts v. Thomson, 532 F.2d 792 (1st
Cir. 1976) (decision by government to cancel a program is editorial
in nature and not a First Amendment violation); Muir v. Ala. Educ.
Television Comm'n, 688 F.2d 1033 (5th Cir. 1982) (en banc)
(editorial decision by government-controlled licensee to cancel a
program was not censorship under First Amendment).
Finally, we reject appellants' attempt to shoehorn this
case into a school library case such as in Bd. of Educ., Island
Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871-72
(1982). Not only do appellants overread Pico, but school libraries
are plainly distinguishable from the MDOL waiting room. See
Griswold, 616 F.3d at 56 (curriculum guide better analogized to
curriculum than school library); Muir, 688 F.2d at 1044-45(broadcast stations distinguishable from school libraries).11
11
In a final argument on appeal, appellants urge we adopt
what has been called the hybrid speech doctrine, citing American
Civil Liberties Union of North Carolina v. Conti, 835 F. Supp. 2d
51 (E.D.N.C. 2011). We have not adopted the doctrine and see no
need to discuss it here.
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V.
It is clear that the government speech doctrine favors
the result we reach, as was also true in Griswold. See Summum, 555
U.S. at 467-68 (government is entitled to select the views it
wishes to express). As Justice Stevens has noted, the government
speech doctrine is "recently minted." Id. at 481 (Stevens, J.,
concurring); see also Griswold, 616 F.3d at 59 n.6 (describing
government speech doctrine as "still at an adolescent stage of
imprecision"). Indeed, it is a bit odd to say that this mural
reflects government speech when the present administration says it
does not wish the MDOL offices to be associated with an implicit
message of non-neutrality. This is, in fact, an easier case for
the government than Summum. Here, unlike Summum, the issue does
not involve a public park, nor does it involve the government's
decision whether or not to accept a private donation. 555 U.S. at
466. It is also clear that no Equal Protection or Establishment
Clause concerns are raised by this case. This case does not
involve the suppression of private speech.
At oral argument, appellees again committed to the
showing of the mural elsewhere. They said it may now be placed in
different places around the state "because this is now the most
famous piece of art in the state of Maine."
There are those who disagree with the decision to remove
the mural from the MDOL. Governors and administrations are
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ultimately accountable to the electorate through the political
process, which is the mechanism to test disagreements. See Bd. of
Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235
(2000); Sutliffe, 584 F.3d at 331 n.9. As Judge Posner has noted,
to hold the defendants liable to a plaintiff artist (or a viewer)
"for ordering [the] work relocated would have disturbing
implications for the scope of federal judicial intervention in the
affairs of" other institutions, including public museums.
Piarowski, 759 F.2d at 631.
Affirmed.
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