Newton v. LePage

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

-3-
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.

-4-
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).

-5-
 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.

-6-
 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

-7-
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.

-8-
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."

-9-
 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

-10-
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.

-11-
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)).

-12-
 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.

-13-
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).

-14-
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

-15-
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.

-16-
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

-17-
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.

-18-
 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

-19-
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.

-20-