JOHN A. WOODCOCK, JR., Chief Judge.
The resolution of the Governor's decision to remove a state-owned labor mural from the anteroom of the Maine Department of Labor rests not in a court of law but in the court of public opinion.
On April 1, 2011, the Plaintiffs filed a complaint, seeking damages and injunctive and declaratory relief against Maine Governor Paul LePage and members of his administration. In the Complaint,
On April 22, 2011, the Court issued an extensive Order denying the Plaintiffs' Motion for Temporary Restraining Order. Order Denying Pls.' Mot. for TRO (Docket # 24); Newton v. LePage, 789 F.Supp.2d 172 (D.Me.2011) (TRO Order). On June 16, 2011, the State Defendants returned with a Motion for Summary Judgment. State Defs.' Mot. for Summ. J. (Docket # 40) (State's Mot.). On July 15, 2011, the Plaintiffs objected. Pls.' Opp'n to Defs.' Mot. for Summ. J. (Docket # 44) (Pls.' Opp'n). On August 8, 2011, the State Defendants replied. State Defs.' Reply Mem. in Support of Their Mot. for Summ. J. (Docket # 58) (State's Reply).
With their motion, the State Defendants filed a joint Stipulation, setting forth a number of agreed-upon facts and a separate statement of undisputed material facts. Stip. (Docket # 39) (Stip.); State Defs.' Statements of Undisputed Material Fact (Docket # 41) (DSMF). On July 15, 2011, the Plaintiffs responded to the State Defendants' Statements of Undisputed Material Fact and filed their own Statement of Additional Material Facts. Pls.' Resp. to Defs.' Statements of Undisputed Material Fact and Pls.' Statement of Additional Material Facts (Docket # 45) (PRDSMF; PSAMF). On August 8, 2011, the State Defendants filed a reply to the Plaintiffs' Statement of Additional Material Facts. State Defs.' Reply to Pls.' Resp. to State Defs.' Statements of Undisputed Material Fact and State Defs.' Resp. to Pls.' Statement of Additional Material Facts (Docket # 59) (DRPRDSMF) (DRPSAMF). On August 22, 2011, the Plaintiffs moved to strike portions of the State Defendants' reply to their statement of additional material facts. Pls.' Mot. to Strike (Docket # 61). On September 12, 2011, the State Defendants opposed the Plaintiffs' Motion to Strike. State Defs.' Opp'n to Pls.' Mot. to Strike (Docket # 62) (State's Opp'n to Pls.' Mot. to Strike).
In October 2011, the Plaintiffs moved to reopen the record for summary judgment. Pls.' Mot. to Reopen Record (Docket # 63); Pls.' First Am. Mot. to Reopen Record (Docket # 64) (Pls.' Am. Mot. to Reopen). On November 4, 2011, the Court granted the motion and set a briefing schedule for the submission of memoranda on the relevance, if any, of the new material. Order (Docket # 68).
On November 8, 2011, the Court issued an interim order, requiring the parties to review the state of the record and to prepare to confer with the Court to simplify it. Interim Order at 1 (Docket # 70). Although the parties had filed a comprehensive joint stipulation of facts, the Plaintiffs had added statements of fact, some of which tracked the stipulated facts, some of which contained nuanced differences from the stipulated facts, and some of which contradicted the stipulated facts. Id. at 2. The Court explained that the Plaintiffs had "caught the Court in the middle of their own factual dispute" and it did not know whether to accept the stipulated facts over the Plaintiffs' statement of facts or vice versa. Id. at 3. The Court conferenced with counsel on November 9, 2011 and set deadlines for filing a clean record. Minute Entry (Docket # 71).
On November 22, 2011, the Plaintiffs filed a supplemental response in opposition to the State Defendants' Motion for Summary Judgment and a Revised Statement of Additional Material Facts. Pls.' Supplemental
The Plaintiffs, John Newton, Don Berry, Joan Braun, Natasha Mayers, and Robert Shetterly, are residents of the state of Maine.
In 2007, the gubernatorial administration of John E. Baldacci, through the MDOL, desired to commission a mural for the anteroom to the newly renovated MDOL offices in Augusta. Stip. ¶ 9; PRSAMF ¶ 9; DRPRSAMF ¶ 9.
The State did not, at that time, and does not generally, have artists on staff as employees capable of painting the mural. DSMF ¶ 9A; PRDSMF ¶ 9A. The MDOL asked the Maine Arts Commission (MAC),
On March 17, 2007, an MDOL Committee held a meeting to discuss commissioning the mural. Stip. ¶ 15. The Committee, which was listed in the Public Art Notification, was comprised of Laura Fortman, the then Commissioner of the MDOL, Jane Gilbert, the Deputy Commissioner of the MDOL, Leslie Manning, the Deputy Director of the MDOL Bureau of Labor Standards, Charles Scontras, educator and author, and Lauren Fensterstock, Director, Institute of Contemporary Art, Maine College of Art. PRSAMF ¶ 15; DRPRSAMF ¶ 15; Stip. ¶ 16; DSMF ¶ 16A; PRDSMF ¶ 16A. Donna McNeil, Director of the MAC, provided non-voting assistance to the Committee. Stip. ¶ 17. At the time that Lauren Fensterstock served on the Committee, she was an employee of the Maine College of Art in Portland, Maine, a private college. PRSAMF ¶ 17; DRPRSAMF ¶ 17. On March 17, 2007, Mr. Scontras provided the Committee with a letter addressed to Leslie Manning setting forth "[a] few suggestions regarding the proposed mural for the [MDOL]." Stip. ¶ 18. At the March 17, 2007 meeting, there was a lively discussion about the history of the labor movement in Maine, what should be depicted on the mural, what the tone should be, and what resources the artists should consult.
Sometime after March 17, 2007, the MAC in conjunction with the MDOL issued a "Call for Artists," a public request for proposals from Maine artists for the
DSMF ¶ 22A; PRDSMF ¶ 22A. Two labor historians, including Mr. Scontras, were to be available for research assistance; $60,000 was available for the project. Stip. ¶ 23. Among the materials that applicants were required to submit was: "A
Upon learning of the Call for Artists, Judith Taylor, a self-employed Maine painter with a studio and gallery in Seal Harbor, Maine, went to the MDOL office to look at the site and received a tour of the office area, including MDOL conference rooms and the anteroom where the mural was to be located. Stip. ¶ 28; PRSAMF ¶ 23; DRPRSAMF ¶ 23. Leslie Manning gave Ms. Taylor a tour of the entire office area. PRSAMF ¶ 24; DRPRSAMF ¶ 24. During her tour, Ms. Taylor observed other pieces of art and photos in the MDOL conference rooms. PRSAMF ¶ 24; DRPRSAMF ¶ 24. One of the conference rooms is the Frances Perkins conference room, which has five framed pictures including: a framed copy of a 1930s newspaper article from a Lincoln County newspaper profiling Frances Perkins; a photograph of Frances Perkins with President Roosevelt; a drawing of the Triangle Shirtwaist Fire by Clinton Kamp; a photograph of Frances Perkins; and a copy of the Time magazine cover of Frances Perkins and postcard of Frances Perkins. Stip. ¶ 77. The Frances Perkins conference room is the only other area
Ms. Taylor submitted to the MDOL a number of images of her existing work, including several of her existing paintings of workers, landscapes, and other subjects. Stip. ¶ 30. In addition to the images Ms. Taylor submitted in response to the Call for Artists, she sent a letter expressing her interest in the mural project.
Eighteen applications were submitted in response to the "Call for Artists," including one from Judy Taylor. Stip. ¶ 29. On June 15, 2007, the Committee met and reviewed the submissions. Stip. ¶ 33. Ms. Fensterstock, who attended the June 15 meeting, recalls that the Committee discussed each of the eighteen submissions, focusing on the aesthetic quality and technical skills shown by each artist's submissions of his or her prior works.
Following her selection as a finalist, Ms. Taylor began doing her own research on Maine's labor history and identifying themes and events that she found illustrative of that history. PRSAMF ¶ 33; DRPRSAMF ¶ 33. She created three maquettes,
On September 10, 2007, the Committee, including Mr. Scontras, met at the MDOL office in Augusta to evaluate the three finalists' proposals for the mural. PRSAMF ¶ 35; DRPRSAMF ¶ 35. Before the finalists presented their proposals, there was no discussion among the members of the Committee as to what the Call for Artists had stated, what criteria the Committee should use in evaluating the proposals, or whether the mural should convey any particular content or theme, beyond the general theme of the history of labor in Maine.
On September 10, 2007, Ms. Taylor made a PowerPoint presentation of her ideas for the design and composition of the mural, including her ideas of creating a multiple-panel mural and using multiple figures in the mural panels.
On September 10, 2007, "after interviewing the artists and viewing their maquettes, the Committee chose Judy Taylor to produce the 30' by 6' mural." Stip. ¶ 38. The Committee's decision to award the commission to Ms. Taylor was reached quickly by consensus.
On September 21, 2007, Kerstin Gilg, Public Art Associate at the MAC, sent Ms. Taylor a letter with a contract for creation of the mural. Stip. ¶ 39. Ms. Gilg's letter was modeled on a form letter the MAC used for Percent for Art programs, but this project was not a Percent for Art project and its reference to the Percent for Art program should have been removed.
Stip. ¶ 48; PRSAMF ¶¶ 49-58; DRPRSAMF ¶¶ 49-58.
The MDOL raised funding for the mural from sources other than "Percent for Art." Stip. ¶ 44. The contract was paid for by 10 different streams of funding, through the Reed Act, the Bureau of Labor Standards, the Bureau of Rehabilitation Services, the Center for Workforce Research and Information, and the Commissioner's Office — MDOL Overhead. Stip. ¶ 45.
Ms. Taylor worked on the mural between September 2007 and August 2008. Stip. ¶ 49. She developed all of the ideas for the mural on her own, based on her own research and periodic discussions with Mr. Scontras, who had been identified in the Call for Artists as a labor historian who would be available for research assistance.
Ms. Taylor designed the mural specifically to fit into the space in the anteroom of the MDOL offices in Augusta. Stip. ¶ 55. The building in which the MDOL offices are located is privately owned and located several miles from the State Capitol Building. Stip. ¶ 56. The mural was installed in an anteroom, which is located approximately 125 feet down a corridor from the closest entrance and accessed by turning right off of the corridor. Stip. ¶¶ 58-59. The MDOL does not control the corridor or what can be hung on its walls. DSMF ¶ 58A; PRDSMF ¶ 58A. There are other agencies and private entities in this building, and the corridor is used by individuals going to them as well. Stip. ¶ 61. There are no bulletin boards or locations for members of the public to "speak" or to place political posters in the corridor or the anteroom.
Stip. ¶ 60. The anteroom is the place where visitors to the MDOL typically wait for their meeting, or for the person they are visiting to come and get them. Stip. ¶ 62.
The anteroom is approximately 12 feet by 26 feet in size; three sides of the room are lined with nine chairs. Stip. ¶ 63. The mural was on two of these sides. Stip. ¶ 64. A donated framed pamphlet from the 19th century, which had been distributed to employers to encourage them to oppose a child labor bill pending before the Maine Legislature, was hung on the third wall in the anteroom. Stip. ¶ 65. The MDOL had chosen the pamphlet and placed it on the wall of the anteroom. DSMF ¶ 65A; PRDSMF ¶ 65A. The 19th century pamphlet was removed at the same time as the mural; thereafter, upon the donor's request, it was returned to him. DSMF ¶ 65B; PRDSMF ¶ 65B.
The MDOL had also chosen and placed the material depicting Frances Perkins in the Frances Perkins conference room, which the public can gain direct access to from the public corridor when it is sometimes unlocked. DSMF ¶ 77A; PRDSMF ¶ 77A; DSMF ¶ 77B; PRDSMF ¶ 77B. The MDOL had chosen and placed material
The mural depicts scenes of Maine workers engaged in labor activities dating to colonial times. PRSAMF ¶ 68A; DRPRSAMF ¶ 68A. In its completed form, the mural consists of eleven panels, although Ms. Taylor's contract with the MDOL stated that the mural would contain ten panels. PRSAMF ¶ 69; DRPRSAMF ¶ 69. In the course of producing the work, Ms. Taylor decided to add an eleventh panel depicting the future of Maine labor. Id. No one at the MDOL instructed Ms. Taylor to create only ten panels or claimed that she had breached the contract by creating eleven panels instead of ten. PRSAMF ¶ 69A; DRPRSAMF ¶ 69A. Ms. Taylor felt free to create what she deemed appropriate, based on her own artistic judgment. PRSAMF ¶ 70; DRPRSAMF ¶ 70. She did not refer back to the solicitation after her selection, did not include a number of aspects in the solicitation in her finished mural, and it was she alone who decided what to depict in the mural.
After Ms. Taylor was chosen to create the mural in September 2007, she did not again refer to the Call for Artists solicitation and was not guided by the subject matter or themes mentioned in the Call for Artists solicitation. PRSAMF ¶ 82; DRPRSAMF ¶ 82. Ms. Taylor did not try to illustrate the rise of the post-industrial or global economy, and other than a reference to a labor newspaper, she did not use any symbols of labor advocacy or legislation, all of which were specifically referenced in the solicitation. Id. Ms. Taylor did not try to portray workers as "more than an impersonal cost of production," as stated in the solicitation. Id. Instead, she illustrated what she thought were important themes, events, and personalities in Maine's labor history. Id.
The mural's panels depict, inter alia, child labor, secret ballots for workers, the 1937 shoe strike in Lewiston and Auburn, labor reformers including Mainer Frances Perkins, the Triangle Shirtwaist Factory fire, and the Jay strike in 1987. DSMF ¶ 75B; PRDSMF ¶ 75B. The mural has been interpreted by many, including the Plaintiffs, as pro-labor. DSMF ¶ 76A; PRDSMF ¶ 76A.
The first panel depicts a shoemaker and his apprentice. PRSAMF ¶ 71; DRPRSAMF ¶ 71. Ms. Taylor chose this subject because Maine had a thriving shoe industry in the past, and also because she learned that both Charles Scontras's father and grandfather had been shoemakers. Id. This is why, behind the shoemaker and his apprentice depicted in the
The second panel is about child labor. PRSAMF ¶ 72; DRPRSAMF ¶ 72. Ms. Taylor decided to portray the children sympathetically, but not pitifully. Id. This was not one of the subjects suggested in the solicitation, but Ms. Taylor thought that the history of child labor was an important part of Maine history, as well as national history. Id. It was solely her decision to portray this aspect of labor history.
The third panel depicts textile workers. PRSAMF ¶ 73; DRPRSAMF ¶ 73. Ms. Taylor imagined young women coming in from the farm to work in the factories. Id. She used period dresses and illustrated the women holding handkerchiefs to their mouths to illustrate the hazard of cotton dust in the factories. Id. It was solely her decision to portray this hazardous aspect of their lives. Id.
The fourth panel depicts the secret ballot.
The fifth panel depicts the first Labor Day. PRSAMF ¶ 75; DRPRSAMF ¶ 75. In Ms. Taylor's research, she learned that there had been many parades in Maine with workers carrying flags from their various unions, including the Stone Cutters Union, whose flag is displayed. Id. The figures in the Labor Day parade and all the panels are "studio models," that is, people that Ms. Taylor brought into her studio. These figures are not based on archive photos. Id.
The sixth panel depicts woods workers. PRSAMF ¶ 76; DRPRSAMF ¶ 76. Ms. Taylor painted a father and son because, based on her research, she understood that often sons followed their fathers into woods work. Id. The man talking to the workers could be viewed as a Wobblie (Industrial Workers of the World) organizer; Ms. Taylor had read that the Wobblies had tried to organize woods workers at the beginning of the twentieth century in Maine. Id. He could also be viewed as a lumber recruiter. Id. These men were sent to various parts of Maine and Massachusetts to encourage men to come and work in the Maine woods. Id. Consequently, this panel can be interpreted in two ways, which was Ms. Taylor's intention. Id. The figure on the right is holding a peavey, a tool used for rolling logs. Id. Ms. Taylor learned about the peavey based on her research, including a trip to Liberty Tool Company in Liberty and the Hulls Cove Tool Barn in Bar Harbor, both of which have barns full of old tools particular to Maine history. Id.
This panel depicts the 1937 Shoe Workers Strike in Lewiston. PRSAMF ¶ 77; DRPRSAMF ¶ 77. In the foreground, Ms. Taylor depicted a contemporary newspaper of the French Canadian community, Le Messager, which she had found in the archives. Id. It was solely her decision to portray a strike as part of Maine's labor history. Id.
The eighth panel depicts Frances Perkins, a Mainer who served under President Franklin D. Roosevelt as the first female Secretary of Labor. PRSAMF ¶ 78; DRPRSAMF ¶ 78. In the background, there is a reference to the Triangle Shirtwaist Factory fire, which Frances Perkins witnessed, and to Rose Schneiderman, who led a march protesting working conditions in the garment industry. Id. Ms. Taylor had a friend of hers pose for the image of Frances Perkins, wearing an old coat and a hat. Id. She thought Frances Perkins was important to Maine labor history. Id. None of these subjects was mentioned in the Call for Artists and, as with the other panels, it was solely Ms. Taylor's decision to portray these subjects. Id. Although the Triangle Shirtwaist Fire was not an event in Maine's labor history, Ms. Taylor thought that it affected history throughout the nation, including Maine, so she decided to include it. Id. No one ever told Ms. Taylor that this was inconsistent with the purpose of the mural. Id.
The ninth panel depicts women in a shipyard during World War II. PRSAMF ¶ 79; DRPRSAMF ¶ 79. In the background, Ms. Taylor included images of women holding signs showing what kind of work they were doing in aid of the war effort. Id. This image was from an archive photo from World War II. Id. Although some individuals have referred to this panel as the Rosie the Riveter panel, that was a title provided by the MDOL in a pamphlet which it distributed about the mural, not a title that Ms. Taylor bestowed. Id.
The tenth panel depicts the 1987 International Paper strike in Jay, Maine. PRSAMF ¶ 80; DRPRSAMF ¶ 80. Ms. Taylor read about this strike and believed it was an important part of Maine's labor history. Id. She contacted Julius Getman, a law professor at the University of Texas who had written a book about that strike. Id. Professor Getman sent Ms. Taylor around twenty videotapes from the strike, and Ms. Taylor looked at the images and was particularly struck by the images of
The eleventh panel portrays the future of Maine labor with the hand-off of the hammer, a universal symbol of labor, from the older generation to the younger. PRSAMF ¶ 81; DRPRSAMF ¶ 81. The figure in the background to the left of the young man's head is Ms. Taylor's framer, Raymond, and she included him as a tribute to small artisan-owned businesses in Maine. Id.
On August 9, 2008, Ms. Taylor's husband and Raymond, her framer/carpenter, packed up the mural panels and took them to Augusta. Stip. ¶ 57. They installed the mural in the anteroom at the MDOL based on her instructions. Id. A plaque was placed in the anteroom stating:
Stip. ¶ 73; PRSAMF ¶ 84; DRPRSAMF ¶ 84.
The mural was unveiled at a public event in the anteroom on August 22, 2008. Stip. ¶ 71. At the reception to present the mural to the public, the speakers talked generally about how the mural honored the history of Maine workers. PRSAMF ¶ 86A; DRPRSAMF ¶ 86A.
The eleven panels of the mural were described and reproduced in a color pamphlet made available to the public in the anteroom of the MDOL. Stip. ¶ 74. The pamphlet features Ms. Taylor, including her photograph, a description of her background and artistic training, and information about her other artwork.
John Butera is Governor LePage's Senior Economic Advisor who was appointed to deal with economic development and job creation issues. Stip. ¶ 78.1. Mr. Butera had visited the MDOL anteroom as a private citizen numerous times before January 2011 on business and had considered the mural to be overwhelming and prolabor and anti-business. Id. An anonymous complaint dated February 24, 2011 and date-stamped February 28, 2011 from a "secret admirer" was addressed to Governor LePage complaining about the mural and declaring that "this mural is nothing but propaganda to further the agenda of the Union movement. I felt for a moment that I was in communist North Korea where they use these murals to brainwash the masses."
During the evening of March 22, 2011, a reporter contacted Ms. Taylor by telephone and informed her that the Governor intended to remove the mural from the MDOL anteroom. PRSAMF ¶ 93; DRPRSAMF ¶ 93. Later that week, Adam Fisher of the MDOL contacted Ms. Taylor and informed her that the mural was going to be removed.
By email dated March 22, 2011, Acting Commissioner Laura Boyett announced the planned removal of the mural and conference room changes to all 500-plus MDOL staff. Stip. ¶ 79. The text of Ms. Boyett's email read in part:
Stip. ¶ 81. Within hours, apparently because the email was re-sent to the media, the press was contacting various members of the administration. Stip. ¶ 82.
On March 23, 2011, Dan Demeritt, a former spokesman for the LePage administration, mentioned that some business owners had raised concerns about the mural. PRSAMF ¶ 98; DRPRSAMF ¶ 98. He declared that the mural, along with the names of the MDOL conference rooms, represented "one-sided décor" inconsistent with the MDOL's goals. Id. Mr. Demeritt also stated that "the message from State agencies needs to be balanced," and "I just want to emphasize that we were merely looking to achieve a little aesthetic balance. It's very minor." Stip. ¶ 84.
Adrienne Bennett, Press Secretary to Governor LePage, stated that the Governor's Office had received an anonymous written complaint regarding the mural. Stip. ¶ 85. Ms. Bennett informed reporters that the administration did not give validity to the specific sentiments in the complaint. PRDSMF ¶ 85B. Initially, the complaint was described as a fax but Ms. Bennett later confirmed it was a letter. Stip. ¶ 85; DSMF ¶ 85; PRDSMF ¶ 85A. Ms. Bennett also claimed that several unnamed business officials had complained about the mural.
On March 25, 2011, Governor LePage released the following statement in a press release:
Stip. ¶ 87. In the same press release, Governor LePage stated that he:
Stip. ¶ 88. Governor LePage ordered removal of the mural from display at the MDOL based on the complaints he had
During the afternoon of March 25, 2011, Attorney Jonathan S.R. Beal faxed and emailed a letter to Joseph Phillips and Sheila McDonald, Director and Deputy Director of the Maine State Museum respectively, and to Governor LePage, objecting to the proposed removal of the mural. Stip. ¶ 102. Attorney Beal requested that before the mural was removed the Director of the Museum, as Trustee of state-owned works of art, hold a hearing to determine the mural's appropriate location and that the mural "not be removed from its current location, nor obscured, covered or otherwise removed from sight, until a hearing or similar vehicle for public input has been followed."
While the mural was still in the anteroom, on March 25, 2011, a demonstration was organized against removal of the mural. Stip. ¶ 90. Several hundred demonstrators entered the MDOL building and, in particular, demonstrators filled the anteroom.
Specifically, on that Sunday, employees of the lessor of the building where the MDOL is located removed the mural from the MDOL anteroom. PRSAMF ¶ 102; DRPRSAMF ¶ 102. No public hearing was held before the removal of the mural.
On March 28, 2011, Adrienne Bennett issued a press release stating:
Stip. ¶ 92; PRSAMF ¶ 105; DRPRSAMF ¶ 105. Governor LePage stated on a radio program:
Stip. ¶ 93. The same day, Deputy Director McDonald responded to Attorney Beal's March 25, 2011 letter. Stip. ¶ 104. In it, she claimed that the mural was not "historical material" within the meaning of 27 M.R.S. § 86-A. PRSAMF ¶ 106; DRPRSAMF ¶ 106. Rather, Ms. McDonald stated that the policy and practice of Director Phillips and the Museum is to consider only "older paintings, not contemporary paintings depicting historical events" to be historical materials.
DSMF ¶ 105B; PRDSMF ¶ 105B. Ms. McDonald's letter also notes that she understands that the mural was removed over the weekend and is safely in storage, and clarifies that it is not at the Maine State Museum. DSMF ¶ 105C; PRDSMF ¶ 105C.
Before receiving Ms. McDonald's March 28, 2011 letter, Attorney Beal sent a second letter also dated March 28, 2011 to Governor LePage, Director Phillips and Deputy Director McDonald, questioning, among other things, where the mural was
PRSAMF ¶ 108; DRPRSAMF ¶ 108; DSMF ¶ 109A; PRDSMF ¶ 109A. The Maine State Museum and the state of Maine have countless historical objects, including works of art, which are not on display. DSMF ¶ 109B; PRDSMF ¶ 109B. It would be impossible to exhibit or display the countless historical objects, including works of art, held by the Maine State Museum and the state of Maine. DSMF ¶ 109C; PRDSMF ¶ 109C. Deputy Director McDonald is not aware of the State Museum ever conducting a public hearing regarding the location of or removal of an historical object within the jurisdiction of the Maine State Museum. DSMF ¶ 109D; PRDSMF ¶ 109D.
In May 2011, Ms. Taylor contacted by telephone at least two members of the administration, seeking to view and photograph the mural. Stip. ¶ 95. On May 16, 2011, the Maine Office of the Attorney General sent Ms. Taylor a letter stating: the "mural has been carefully placed in crates made of birch wood"; the "mural is being stored in a safe, secure, climate-controlled room"; that they have photographs of the mural taken at the time of the unveiling in 2008 and would be happy to email those to her; that "no final decision has been made regarding where the mural will be displayed" because the "present litigation has placed that decision on hold, and we will not be finalizing that decision until the litigation has concluded"; and that "it is our intent and desire to discuss with you, at that time, plans for the mural, and we value your input." Stip. ¶ 96. If the mural is in birch crates, this could be an appropriate means of storage. DSMF ¶ 91B; PRDSMF ¶ 91B. Although the Plaintiffs have not been allowed access to the mural, the State Defendants claim that the mural is stored safely in an appropriate, climate-controlled location. DSMF ¶ 91C; PRDSMF ¶ 91C.
By letter dated May 19, 2011 and received May 26, 2011, Ms. Taylor again sought access to the mural to "take professional quality photographs to insure the mural is properly remembered until plans for its placement be discussed and decided." Stip. ¶ 98. The Office of the Attorney General responded with two emails on May 31, 2011 and sent her photographs of the mural that the Office said it hoped would suffice. Stip. ¶ 100. Following the removal of the mural, the State Defendants have refused to disclose where the mural is being stored or to permit Ms. Taylor to inspect and take pictures of the mural.
Maine has a statutory Percent for Art program (16 M.R.S. § 451 et seq.) that provides, among other things, funding for the creation and display of art in public buildings in Maine. Stip. ¶ 111; PRSAMF ¶ 113; DRPRSAMF ¶ 113. Under the terms of the statute, public buildings and facilities, other than schools and correctional
Christina Bechstein, a Maine artist, is employed as a professor at the Maine College of Art in Portland, and is familiar with the functions of the MAC, the Percent for Art program, and public arts programs in Maine in general.
According to Judy Taylor and Professor Bechstein, "art in public places" is a term often used to refer to Percent for Art projects. PRSAMF ¶ 116; DRPRSAMF ¶ 116.
To Professor Bechstein's knowledge no person with a role at the MAC, or any responsible person in the public arts field in Maine, has ever expressed the belief that art of Maine's "art in public places" and other public art programs is meant to express a message or viewpoint of the contracting agency or the State. PRSAMF ¶ 118; DRPRSAMF ¶ 118. In her view, the stated goal of supporting "freedom of artistic expression essential for the well-being of the arts" would be frustrated, not advanced, if members of the public were to be told, or if they came to believe, that public art supported by the state of Maine, or by its agencies, was in fact "government speech," expressing a message on behalf of the State itself, rather than expressing the free artistic expression of the artist. Id.
According to Professor Fensterstock, no advisory committee on which she has served has ever expressed the belief that the art in public places programs of the MAC, or the Maine Percent for Art program, was meant to express a message or viewpoint of the State, or to convey some particular thought or instill some feeling in those who saw the work, other than the thoughts and feelings conveyed by the artist. PRSAMF ¶ 119; DRPRSAMF ¶ 119.
The Professors opine that by selecting an artist to perform a commission, the MAC is expressing a preference for that artist over others, but that selection is based on conceptual and aesthetic considerations concerning the artist's work, not on an expectation that the artist will convey a thought or a feeling on behalf of the State. PRSAMF ¶ 120; DRPRSAMF ¶ 120. Based on Professor Fensterstock's long experience with the MAC and the way in which the public arts programs have been implemented and presented to the public over the years, she believes that any reasonably well-informed member of the public, viewing a piece of public art commissioned and paid for by the State under any public arts program, would understand that the artwork was expressing the views of the artist and not the State itself. PRSAMF ¶ 121; DRPRSAMF ¶ 121. Similarly, based on Professor Bechstein's experience with the MAC and the way in which the public arts programs have been implemented and presented to the public over the years, she likewise believes that any reasonably well-informed member of the public, viewing a piece of public art commissioned and paid for by the State under any public arts program, would understand that the artwork was expressing the views of the artist and not
The Professors say that over the past several decades, Maine has succeeded in selecting artists with a wide range of views and vision, and one of the most valuable aspects of Maine's programs is that they provide public platforms for so many artists to express those visions. PRSAMF ¶ 123; DRPRSAMF ¶ 123. They believe that over the past several decades, the State and the arts community in Maine have successfully conveyed the understanding that public art in Maine, even when commissioned and paid for by the State, presents the free artistic expression of the artists who have created the artwork. PRSAMF ¶ 124; DRPRSAMF ¶ 124. Further, they express the view that for several decades, the State has actively promoted Maine as a place for the public to view and purchase art and to support artists. PRSAMF ¶ 125; DRPRSAMF ¶ 125. They say that Maine's Percent for Art program and other programs for art in public places are key elements of this program of arts promotion. Id. They opine that in Maine, members of the public generally understand public art to be the expression of the artist herself, not an expression of the views, thoughts, or feelings favored by the institution or individual who commissioned the artwork. PRSAMF ¶ 126; DRPRSAMF ¶ 126. They say that the robust public arts programs in Maine, instituted over the past several decades, have intentionally reinforced this public understanding of the source of any messages conveyed by public art. Id.
Professor Bechstein is herself currently engaged in a public arts project, awarded through the MAC, collaborating and giving voice to members of the public concerning some aspects of their local history and culture. PRSAMF ¶ 127; DRPRSAMF ¶ 127. Professor Bechstein says that if she were to understand that her public artwork was considered to be "government speech," she would refuse the commission and would not apply for other public art commissions through the MAC or any other program where her work was considered to be "government speech." Id. Similarly, Professor Bechstein contends that if she were to understand that because her work was considered to be government speech, it could be altered, removed, or destroyed if the government decided it did not like the message, she would refuse the commission and would never apply for another public art commission through the MAC or any other program where her work was considered to be "government speech," nor would she encourage her students to apply. PRSAMF ¶ 128; DRPRSAMF ¶ 128. It is Professor Bechstein's opinion that most artists would shun any program where their work was considered to be "government speech" or an expression of views controlled or approved by the government, and would consider such work more in the realm of advertising or public relations. Id. According to Professor Bechstein, if the art produced in Maine's public arts programs was not considered to be an artist's own free artistic expression, but rather to be "government speech," most Maine artists would no longer want to be associated with those programs. PRSAMF ¶ 129; DRPRSAMF ¶ 129. Those programs would then, she believes, be viewed as public relations enterprises of the State, rather than as they are viewed today: as public programs which encourage "freedom of artistic expression essential for the well-being of the arts" and "enhance culture and the arts and encourage the development of artists." Id.
Similarly, both Professors Fensterstock and Bechstein believe that, if Maine artists came to believe that the art produced in Maine's public arts programs was not considered
On September 26, 2011, Brian Williams, the NBC news anchor, interviewed Governor LePage on national television and asked the Governor, who was introduced as part of a panel of governors at the National Education Conference, about the mural controversy:
PRSAMF ¶ 134, Attach. 1 Tr. of Brian Williams Sept. 28, 2011 Interview of Gov. Paul LePage; DRPRSAMF ¶ 134.
On October 12, 2011, Jon Chrisos, a local Fox 23 newscaster, interviewed Governor LePage about the mural:
PRSAMF ¶ 135; DRPRSAMF ¶ 135.
After the Brian Williams interview, Adrienne Bennett issued the following press release:
DAF ¶ 134A.
The State Defendants contend that the Plaintiffs' First Amendment claim has been "resolved by this Court's April 22, 2011, order denying the motion for a temporary restraining order." State's Mot. at 6. The State Defendants explore the factual underpinnings of the Order and argue that the additional facts contained in the motion for summary judgment sustain and buttress the Court's April 22, 2011 conclusions. Id. at 6-11. Regarding the question of government exclusion, the State Defendants view the "Call for Artists" and the "Public Art Notification" as "clearly demonstrat[ing] that the State controlled the viewpoint of the mural." Id. at 10.
Turning specifically to the Plaintiffs' First Amendment arguments, the State Defendants argue that the Plaintiffs cannot stand in Ms. Taylor's shoes for purposes of her First Amendment claims, especially because whatever such claims she retained are a function of her contract with the State and thus limited to the remedies provided therein. Id. at 11-12. The State Defendants also disagree with the Plaintiffs that in Summum, the Supreme Court adopted an "unmistakably signifying" or "reasonable observer" standard for determining whether the government speech doctrine applies. Id. at 12-13 (citing Pleasant Grove City v. Summum, 555 U.S. 460, 474, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009)). Furthermore, they contend that the Plaintiffs' position would "benefit from a dose of common sense." Id. at 13. They note that the public elects a new political leader because of the message she conveys about previous state policy and the public
The State Defendants assert that the Plaintiffs' procedural due process claim must fail because they have no rights or liberties upon which to base such a claim. Id. at 13-14.
Finally, they maintain that the Plaintiffs' state law claims should be dismissed for a variety of reasons. Id. at 14-17. First, they claim that once the federal causes of action are dismissed, the Court should not reach the state law claims. Id. at 14. Second, turning to Count III, breach of fiduciary duty by Director Phillips, the State Defendants argue that Mr. Phillips has no legal duty to display any particular work of art and no fiduciary duty over a work of contemporary art that depicts historical events. Id. at 14-15. Regarding Count IV, the Rule 80C count, the State Defendants argue that this cause of action is unsupported by law and so should be dismissed. Id. at 16.
Quoting Justice Souter's concurrence in Summum, the Plaintiffs contend that the government speech doctrine should not apply because "the character of the speech at issue and its governmental nature has not been made clear" and therefore the "government should lose." Pls.' Opp'n at 3 (quoting Summum, 555 U.S. at 485, 129 S.Ct. 1125). They say that the State Defendants have failed to demonstrate that the State exercised "a high degree of control over the message conveyed by the mural." Id. at 3; see id. at 4-7. They point out that the mural's subject matter and theme originated with Charles Scontras, not the State, and that other than contributing to her selection as artist, the State did not effectively control the message and viewpoint Judy Taylor expressed in the mural. Id. at 5-14. Furthermore, they contend that the State Defendants have "failed to demonstrate that observers routinely and reasonably would understand that the mural was an expression of the State's rather than [Ms.] Taylor's message, particularly given the location and surroundings of the mural, the nature of public art in Maine, and the widespread placement of privately created art in government buildings throughout Maine." Id. at 3; see id. at 14-22. They urge the Court to conclude that these questions raise triable issues. Id. at 3.
Taking the obverse of the State Defendants' argument, the Plaintiffs contend that because they have a First Amendment right, they also have a "claim of deprivation of procedural due process ... premised on [the] deprivation of a constitutionally-cognizable right." Id. at 22.
The Plaintiffs say that if the federal claims survive summary disposition, the Court would have ongoing jurisdiction over the state law claims, but they concede that if the Court grants summary judgment as to the federal claims, it need not exercise jurisdiction over the pendent state law claims. Id. at 22. Assuming the Court retains jurisdiction, they urge the Court not to accept Deputy Director McDonald's statement that the provisions of 27 M.R.S. § 81 and 27 M.R.S. § 86-A do not apply to contemporary works of art depicting historical events because that interpretation is contrary to the language of the statute and not otherwise entitled to deference. Id. at 22-23. The Plaintiffs further argue
Noting that the Plaintiffs claim a First Amendment right to view the mural, the State Defendants say that, even assuming they have such a right, the mural can now be viewed online and, but for this lawsuit, the mural could be viewed at another location in Maine where it would be more accessible to the public. State's Reply at 1-2. Secondly, the State Defendants reject the Plaintiffs' attempt to demonstrate that the mural is not government speech, arguing that "[t]here is no dispute that the [MDOL] conceptualized, commissioned, inspected, paid for, accepted, owns, had the right to terminate and change the mural, and has the right to relocate and even destroy the mural." Id. at 2. The State Defendants also reject the Plaintiffs' viewpoint argument, contending that the opinions of two Maine artists about works of art and the government speech doctrine do not create an issue of fact. Id. at 7-9. In addition, the State Defendants question whether the Plaintiffs have produced a "willing speaker" to trigger the application of the First Amendment. Id. at 9-10. Finally, they reassert that the Plaintiffs' state law claims are meritless. Id. at 11-12.
After the Court granted the Plaintiffs' Motion to Reopen the Record to include Governor LePage's interviews with Brian Williams and Jon Chrisos, the Plaintiffs were permitted to file a supplemental written argument concerning the significance of the interviews. Pls.' Supplemental Opp'n at 1-7. The Plaintiffs argued that Governor LePage's statements undercut the State Defendants' premise that the State removed the mural for reasons related to its message. Id. at 5. Instead, the Plaintiffs says that Governor LePage's statements at least raise a factual question as to whether the State was intending to convey any message at all in removing the mural and therefore the removal has nothing to do with the government speech doctrine. Id. at 6-7.
In response, the State Defendants said that the government speech doctrine does not require that state officials "always speak consistently and ... accurately." State Defs.' Supplemental Resp. at 1. They argued that the "specter of political lawsuits and trials pursued by those out of power every time those in power make arguably inconsistent or inaccurate statements is not one embraced by the Constitution." Id. (emphasis in original). The State Defendants claimed that the Plaintiffs "purposely focused the litigation on political issues" and that the Governor's more recent statements simply reflect his administration's "having moved on, past the political firestorm surrounding the mural, to focus on other more important matters, including fiscal integrity." Id. at 2. They observed that "[t]here is no requirement that the government's message at the time the mural was originated be the same as it was when it was removed, or that either be the same as the message for the mural's continuing not to be shown." Id. at 4. In short, the question, according to the State Defendants, is "whose message is it." Id. at 5. Finally, the State Defendants responded that there is "nothing mandating that the message or reason must be singular, clear or consistent or cannot evolve." Id. at 6.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). A fact is "material" if it "has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London., 637 F.3d 53, 56 (1st Cir.2011) (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). An issue is genuine if "a reasonable jury could resolve the point in favor of the nonmoving party." Tropigas, 637 F.3d at 56 (quoting McCarthy, 56 F.3d at 315).
Once this evidence is supplied by the moving party, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted). In other words, the non-moving party must "present `enough competent evidence' to enable a factfinder to decide in its favor on the disputed claims." Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002) (quoting Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993)). The Court then "views the facts and draws all reasonable inferences in favor of the nonmoving party." Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir.2011). However, the Court "afford[s] no evidentiary weight to `conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.'" Tropigas, 637 F.3d at 56 (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir.2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009); Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir.2002).
The Court does not start from scratch. On April 22, 2011, the Court issued an extensive order, concluding that the State's actions represented a permissible form of government speech. TRO Order at 1-45. The question is whether the law and the facts in this motion merit a different result. The Court concludes that they do not. As part of its Order on this motion, the Court therefore adopts in its entirety its April 22, 2011 Order denying the Plaintiffs' Motion for TRO.
There are, however, some procedural differences between the Plaintiffs' Motion for TRO and the State Defendants' Motion for Summary Judgment. In the Motion for TRO, the burden rested on the Plaintiffs; in the Motion for Summary Judgment, the burden rests on the State Defendants. Compare Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006), with FED.R.CIV.P. 56(a). Furthermore, as just noted, in a motion for summary judgment, the Court is required to view the evidence in the light most favorable to the non-movants, in this case the Plaintiffs.
Whether by motion for TRO or summary judgment, though, the legal issue is the same — whether the Plaintiffs are entitled to the injunctive relief they demand. The First Circuit has described injunctive relief as an "extraordinary and drastic remedy." Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir.2011) (quoting Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008)). Here, in addition to damages and declaratory relief, the Plaintiffs seek injunctive relief in the form of a court order requiring the State Defendants to: (1) reveal the location of the mural; (2) instruct the person in possession of the mural to preserve and protect it; (3) return
In its Order denying the TRO, the Court touched on standing. TRO Order at 13-14. "The doctrine of constitutional standing reflects the fundamental limitation of judicial power to `Cases' and `Controversies' under Article III of the Constitution." Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009) (internal citation omitted). An actual case or controversy exists when the party invoking federal jurisdiction has a "personal stake" in the outcome of the asserted claim. Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir.2012). "To satisfy the personal stake requirement, a plaintiff must establish each part of a familiar triad: injury, causation, and redressability." Id.
The Court is doubtful that any of the Plaintiffs have met the "injury-in-fact" requisite of this "irreducible constitutional minimum" for standing. Sutliffe, 584 F.3d at 325. "Injury in fact is an invasion of a legally protected interest that is both concrete and particularized and actual or imminent, not conjectural or hypothetical." Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal punctuation omitted)). Whether the Plaintiffs are suffering an injury sufficient to convey standing is entangled with whether they have a First Amendment right to view the mural.
The Plaintiffs say they frequented the MDOL offices, drew inspiration from the mural, and planned to view it on future visits to the MDOL. It has long been recognized that where a speaker exists for First Amendment purposes, "the protection afforded is to the communication, to its source and to its recipients both." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756-57, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The Supreme Court thus instructs that there exists "a First Amendment right to `receive information and ideas,' and that freedom of speech `necessarily protects the right to receive.'" Id. (quoting Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972)). This "reciprocal right to receive" the protected expression — here the mural — then "may be asserted" by the Plaintiffs as potential recipients. Id. at 757, 96 S.Ct. 1817. More recently, as noted in the TRO Order, the First Circuit, in addressing a government speech issue, observed that "the dispositive questions of standing and statement of a cognizable claim are difficult to disentangle," and in Griswold v. Driscoll, 616 F.3d 53 (1st Cir.2010), the First Circuit decided to "dispose of both standing and merits issues together." 616 F.3d at 56. The Court follows the First Circuit's lead and proceeds to the substantive analysis.
This is not without misgivings. Even though there is a relaxed standard for standing in First Amendment cases, this "does not mean that plaintiffs can dispense with the need to meet core Article III standing principles." Sullivan v.
Despite the inspiration the Plaintiffs have drawn from the mural, the Court is doubtful that its removal is a sufficient "injury in fact" to a member of the public to force the State to continue to display it — any more than a member of the public who enjoys a particular exhibit on display at the state of Maine Museum of Art would have standing to force the museum to make it permanent. In fact, the Plaintiffs concede that "[t]he State remains free to remove the mural, and other pieces of private artwork in public buildings, for any number of legitimate reasons, so long as that removal is not a viewpoint-based suppression of private speech in violation of the First Amendment." Pls.' Opp'n at 22. Thus, the Plaintiffs seem to acknowledge that a generalized right to view the mural is not sufficient to accord them standing to challenge the State's disposition of its artwork so long as the State's removal is not content-based.
The Plaintiffs' more restrictive claimed right — to view the mural only if the State removed the mural because of its content — must be further refined, because there is no suggestion from the Plaintiffs that the Governor could not have removed the mural for another content-based yet non-political reason, such as disliking its color scheme. More precisely, the Plaintiffs argue that Governor LePage could not constitutionally remove the mural from the anteroom because he disagreed with its political message.
This case may be an outlier based on a peculiar set of facts, but the Court's concern is for the next case. Works of art typically convey some type of message, which, if the work were removed, could generate a claim that the removal was content-based. If members of the public have standing to claim a constitutional violation because they enjoyed the message of a removed work of art and if they believe the State removed it because of its political message, the courts run the risk of becoming a battlefield for the airing and disposition of purely political grievances. At the same time, the courts must not be closed to those who wish to present legitimate free speech concerns. Under the current First Circuit directive in Griswold, the trial court treats the standing and merits issues as interwoven and therefore reaches the merits, despite its unease. The concept of standing in government speech cases may deserve a closer look.
Most people take it for granted that the Governor of the state of Maine
In this case, the parties agree and the Court takes as a given that the labor mural projects a message and that that message is speech. Once the labor mural's message is seen as a message conveyed by the MDOL, the Governor has the right not to be forced to convey to the visiting public an MDOL viewpoint that his administration rejects. The Governor has as much right not to project a message about the history of Maine labor in a state-owned mural as he would to decline to read aloud a history of labor in Maine written by the prior administration.
In other words, as the Supreme Court has held, a government entity has the right to "speak for itself." Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000)). The state's elected representatives have a right to speak on matters of government: to say what they want to say and to refuse to say what others want them to say. That this mural is a work of art likely makes it more difficult for some to understand why an elected official should be allowed to shut it away. But if the work of art carries — as many do — a powerful, evocative, and persuasive message, it is as much speech as an oral statement and, like an oral statement, cannot be forced upon others, including the Governor.
The Plaintiffs concede that the mural is speech but they argue that the mural has been and remains not government speech, but the artist's speech. "In the realm of private speech or expression, government regulation may not favor one speaker over another." Rosenberger v. Rector, 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). However, "[t]he Free Speech Clause ... does not regulate
In Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005), the Supreme Court held that when "the government sets the overall message to be communicated and approves every word," the expression is government speech. 544 U.S. at 562, 125 S.Ct. 2055. The inquiry is more complicated when the message is not the Government's "from beginning to end," id. at 560-61, 125 S.Ct. 2055, but a government "is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages." Id. at 562, 125 S.Ct. 2055. Under Johanns, the degree of governmental control over the message controls the analysis.
Since Johanns, the Supreme Court has developed the government speech doctrine further. In its Order on the motion for TRO, the Court described the United States Supreme Court decision in Summum. TRO Order at 16-19. To set the stage, the Court abbreviates that analysis here.
In Summum, the United States Supreme Court considered whether a municipality violated the First Amendment when it prohibited a private group from placing a permanent monument in a city park where other donated monuments had been erected. 555 U.S. at 464, 129 S.Ct. 1125. The Summum, a private religious organization, requested permission to erect a stone monument containing "the Seven Aphorisms of SUMMUM" in a Pleasant Grove, Utah public park. Id. at 465, 129 S.Ct. 1125. The city denied its request. Id. Pleasant Grove had previously accepted a monument of the Ten Commandments in the same park, and Summum alleged that the city "violated the Free Speech Clause of the First Amendment by accepting the Ten Commandments monument but rejecting the proposed Seven Aphorisms monument." Id. at 466, 129 S.Ct. 1125.
Observing that the parties fundamentally disagreed about whether the city was engaging in its own expressive conduct or was providing a forum for private speech, the Supreme Court concluded that "the placement of a permanent monument in a public park is best viewed as a form of government speech not subject to scrutiny under the Free Speech Clause." Id. at 464, 129 S.Ct. 1125. It articulated the principle that "[t]he Free Speech Clause restricts government regulation of private speech; it does not regulate government speech." Id. at 467, 129 S.Ct. 1125. The Court examined the policies underlying this principle. Id. at 467-68, 129 S.Ct. 1125. It explained that the government would be unable to function if "every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed." Id. at 468, 129 S.Ct. 1125. If that were the case, all political debate would be relegated to the private sector. Id.
The Summum Court did not set forth a specific analysis to determine whether expression is government or private speech, but it hinted at certain relevant factors. First, it observed that "[n]either the Court of Appeals nor respondent disputes the obvious proposition that a monument that is commissioned and financed by a government body for placement on public land
Here, as in Summum, the Court is dealing with several tiers and timeframes of speech. The State spoke when the MDOL solicited a specific message in its "Call for Artists." The artist spoke when she proposed her mural to the MDOL. The MDOL spoke when it commissioned her work. The artist spoke when she created her mural, choosing some images and themes over others. The MDOL spoke again when it accepted Ms. Taylor's mural and hung it in its anteroom. Finally, Governor LePage spoke when he ordered the removal of the mural and its message. It is this final speech — the taking down of the mural — that the Plaintiffs contest. Putting-up and taking-down the mural, however, are two sides of the same coin. Thus, before turning to that final act of expression, Governor LePage's removal of the mural, the Court addresses the Plaintiffs' argument that the mural itself is the artist's private speech.
In Summum, the Supreme Court emphasized a number of factors, including whether the proposed speech is a(1) permanent, (2) publicly-financed (3) monument, (4) that is displayed (5) on public property. See 555 U.S. at 485, 129 S.Ct. 1125. A straightforward application of the Summum factors to this case compels the conclusion that the mural is government speech. The mural is a permanent (by contract), publicly-financed (through state and federal funding), artistic work (like a
Clause fifteen of the contract provided that "[t]he permanent location of the work shall be: Department of Labor, Augusta, Maine." PRSAMF ¶¶ 48-58; DRPRSAMF ¶¶ 48-58. If the Plaintiffs were to prevail, the mural would be permanently located in the MDOL anteroom, subject only to removal for reasons unrelated to its political message.
In Summum, despite the monument being privately financed, the Supreme Court concluded that if placed in the public park, it would be government speech. Id. at 470-71, 129 S.Ct. 1125. Here, the funding for the mural was derived exclusively from governmental sources. Stip. ¶ 45 ("The contract was paid for by 10 different streams of funding, through the Reed Act, the Bureau of Labor Standards, the Bureau of Rehabilitation Services, the Center for Workforce Research and Information, and the Commissioner's Office — MDOL overhead").
Although Summum addressed a monument in a public park, its rationale extends to other types of works of art, such as this mural. See TRO Order at 20-21. With the Motion for Summary Judgment, the parties placed into the record photographs of the mural as it appeared in the MDOL anteroom. Stip. Ex 10A-I. From the Court's perspective, the mural overshadows the room. The anteroom is a 12 foot by 26 foot rectangular space. Stip. ¶ 63. From the photographs, the anteroom has a chair rail and each panel of the mural begins at the top of that chair rail and extends up the wall to the ceiling. Stip. Ex 10A-I. Panels one through four cover an entire 12 foot wall space; panels five through ten cover an entire 26-foot wall space up to a door and the eleventh panel is on the other side of the door. Id. The parties have not placed photographs of the rest of the room before the Court. However, the mural — by any objective view — dominates the room.
The relevance of the mural's impact on the anteroom is the Summum Court's concern that "public parks can accommodate only a limited number of permanent monuments." 555 U.S. at 478-79, 129 S.Ct. 1125. The Supreme Court contrasted speeches with permanent monuments:
Id. at 479, 129 S.Ct. 1125. In this case, it is beyond argument that the mural substantially monopolizes the wall space in the MDOL anteroom.
The mural has been displayed in the MDOL anteroom since August 2008 and, if the Plaintiffs were successful, would remain displayed there for the foreseeable future.
Although in leased office space, the mural was displayed in the anteroom of the
Based on the summary judgment record, the mural (and its placement in a government office) meets each of the Summum criteria for government speech.
The mural clearly meets this more general criterion of government speech — the "effective control" by the government of the message. Here, the MDOL controlled the message set forth by Judy Taylor in the commissioned mural: it solicited submissions, set the overall theme, suggested ideas, provided an expert historian, tracked the artist's progress, paid for the mural, exercised final approval authority, took ownership, retained many important ownership rights including the right of destruction, and eventually displayed the mural in its open-to-the-public office, even providing in the anteroom pamphlets explaining the mural's panels.
Further, from a policy standpoint, the Summum Court reasoned that government would be unable to function if "every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed." 555 U.S. at 468, 129 S.Ct. 1125. Here, some private citizens disagree with the view expressed by the Governor in ordering the mural's removal. The prospect of haling a sitting governor into federal court to be cross-examined under oath as to why he made a political decision may momentarily cheer the partisan. But the long-term implications of federal court intervention in state politics are sobering.
As the First Circuit has observed, "the [government speech] doctrine is still at an adolescent stage of imprecision." Griswold, 616 F.3d at 59 n. 6. As the doctrine is young and no strict test has yet been set forth by the Supreme Court, lower courts and litigants look elsewhere for guidance.
Post-Summum, the First Circuit has had few opportunities to apply the government speech doctrine in First Amendment challenges. In Sutliffe v. Epping, 584 F.3d 314 (1st Cir.2009), the First Circuit held that a town's actions in setting up and controlling a town website and refusing to add a hyperlink to a private group's website constituted government speech. 584 F.3d at 329. Citing Summum, the First Circuit explained that "when the government
Like the act of removing a mural, the government speech in Sutliffe manifested as a somewhat unconventional form of expressive activity. The town, "by choosing only certain hyperlinks to place on [its] website, communicated an important message about itself" — "even more directly than did the city in Summum." Id. at 331. According to the First Circuit, this "expressive activity" — the choosing of hyperlinks — "was independent of the specific content of the websites that were hyperlinked." Id. Likewise, here the expressive activity of hanging the mural — and conversely the expressive activity of removing the mural — was independent of the specific content of the mural itself.
The Sutliffe Court further recognized that the government speech doctrine does not leave the government free of all restraints. It noted that "[i]f the voters do not like those in governance or their government speech, they may vote them out of office or limit the conduct of those officials `by law, regulation, or practice.'" Id. at 332 n. 9 (citing Southworth, 529 U.S. at 235, 120 S.Ct. 1346 and quoting Summum, 555 U.S. at 468, 129 S.Ct. 1125).
Both before and after Summum and Johanns, lower courts have grappled with distinguishing government speech from private speech. The Fourth Circuit, pre-Johanns and -Summum, developed a four-factor test to help determine the character of speech.
Turner v. City Council of the City of Fredericksburg, Va., 534 F.3d 352 (4th Cir. 2008) (quoting Sons of Confederate Veterans, 288 F.3d at 618).
These SCV factors led the Fourth Circuit to carve out a third category of speech that is neither wholly governmental nor wholly private. See Planned Parenthood of South Carolina, Inc. v. Rose, 361 F.3d 786 (4th Cir.2004). This mixed speech — dubbed hybrid speech — combines aspects
The hybrid approach has the attraction of practicality because speech is often not readily pigeon-holed into either governmental or private expression and the hybrid concept recognizes the need to avoid oversimplification. Yet, the hybrid test risks resulting in the government's inability to speak whenever any degree of private speech is involved because the First Amendment protections that apply to the private speech component would invariably trump the governmental interest in its own speech.
This case illustrates the problem. In a case, like this one, involving a government-commissioned work of art, the initial or "literal" speaker may be the artist herself, but the work of art at issue may be a mixture of governmental and private speech. See W.Va. Ass'n. of Club Owners and Fraternal Servs., 553 F.3d 292; Planned Parenthood of S.C., 361 F.3d 786; ACLU of N.C. v. Conti, No. 5:11-CV-470-F, 835 F.Supp.2d 51, 2011 WL 6130768, 2011 U.S. Dist. LEXIS 141146 (D.N.C. Dec. 8, 2011). Yet, if a private artist retains a degree of First Amendment control over her artwork even after she sells it, the Government will be unable to control its own art.
This result is contrary to Summum, where the Supreme Court concluded that the Summum monument was government speech, even though it was created by a private artist. Similarly, in Johanns, where the Supreme Court addressed beef advertisements designed by an Operating Committee of the Beef Board that had governmental and non-governmental members, the Court deemed the Operating Committee's involvement "ancillary — it designs the promotional campaigns, which the Secretary supervises and approves — and its status as a state actor thus is not directly at issue." 544 U.S. at 560 n. 4, 125 S.Ct. 2055. If the monument in Summum and the promotional ads in Johanns were government speech despite the fact that they were created by private citizens, the fact that the mural in this case was created by a private artist does not make it private speech.
Here, the Court concludes that there is insufficient evidence in the record to establish that the mural's message was Ms. Taylor's — either in whole or in hybrid part — after it was installed in the MDOL anteroom. The record establishes that the idea for the commissioning of the mural began with the state of Maine, that Maine established its theme, that Maine commissioned its creation, that Maine chose the artist, that Maine paid for the mural, that Maine owns the mural, that Maine displays (or not) the mural on its own property, and that Maine even has the right to destroy it.
The Plaintiffs have another arrow in their quiver. Although Summum was unanimous, six Justices wrote separate concurrences. In his concurrence, Justice Souter proposed a test for determining whether speech is governmental:
Id. at 487, 129 S.Ct. 1125 (Souter, J., concurring). Focusing on the phrase, "a reasonable and fully informed observer," and what she "would understand," the Plaintiffs strenuously contend that in its context, the mural would be seen purely as the artist's speech.
The Court disagrees. First, Justice Souter's test is not the Supreme Court's test. Justice Souter's concurrence was his own and was not shared by any other Justice. Summum, 555 U.S. at 486-87, 129 S.Ct. 1125 (Souter, J., concurring). Second, Justice Souter himself did not apply the "reasonable observer" test or some variation of the test when, in 2010, he wrote Griswold for the First Circuit. Griswold v. Driscoll, 616 F.3d 53 (1st Cir. 2010). At most, as the Court concluded in its TRO, what the "reasonable and fully informed observer" understands is one useful factor under the government speech test.
Second, the "reasonable and fully informed observer" test has its own imprecision. For example, the Summum majority mentioned government funding as a factor in determining whether the monument is government speech. However, in this case, the casual visitor to the MDOL anteroom would not know the details of the funding sources. It is unclear whether "fully informed" refers to a member of the general public viewing the work of art or a person knowledgeable about state-funded arts projects.
Finally, even applying the "reasonable and fully informed observer" test, the Court is not convinced that there is a genuine issue of material fact as to whether such an observer would view this mural as anything other than government speech. First, there is the mural's location. The mural was not in the Maine State Museum, in an art exhibit in the Capitol rotunda, or even in a public park; it was in the anteroom of a state agency.
The Plaintiffs have not yet exhausted their Summum arsenal and turn to Justice Breyer's separate concurrence. In it, he wrote:
Summum, 555 U.S. at 484, 129 S.Ct. 1125 (Breyer, J., concurring). Justice Breyer's view of a political speech carve-out to the government speech doctrine is echoed in some courts. See Bd. of Educ. v. Pico, 457 U.S. 853, 870-71, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) ("[i]f a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books"); Serra v. United States Gen. Servs. Admin., 847 F.2d 1045, 1050 (2d Cir.1988) ("it is still possible that the Government's broad discretion to dispose of its property could be impermissibly exercised in an impermissibly partisan or political manner"). The Court acknowledges that if Justice Breyer's statement were the view of the majority of the Supreme Court, the Plaintiffs would at least be entitled to a jury trial to determine the State Defendants' motivation in removing the mural.
However, as with Justice Souter's concurrence, Justice Breyer was not joined by any other Justice. Moreover, the Summum majority characterized government speech as exempt — not partially exempt — from First Amendment scrutiny. Summum, 555 U.S. at 467, 129 S.Ct. 1125 ("the Government's own speech ... is exempt from First Amendment scrutiny") (quoting Johanns, 544 U.S. at 553, 125 S.Ct. 2055); ("Government is not restrained by the First Amendment from controlling its own expression") (quoting Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 139 n. 7, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973)). According to Summum, the people are the final judges of the speech of their elected officials because the government is ultimately held "accountable to the electorate and the political process for its advocacy." 555 U.S. at 468, 129 S.Ct. 1125 (quoting Southworth, 529 U.S. at 235, 120 S.Ct. 1346).
Furthermore, there would be a high price for judicial examination of whether a statement by a government official was forbidden political speech, condoned government speech, or some partially permissible and partially impermissible middle ground. Here, the Plaintiffs demand a trial in which it is likely that the current Governor of the state of Maine would be
Moreover, there is evidence that the motivation behind the Governor's decision to remove the mural may have started with its content, moved to its funding, and is now some combination of the two.
The Plaintiffs' remaining First Amendment arguments concern the fact that the mural is an artistic expression: first, that the mural was Judy Taylor's own expression and thus her speech; and second, that other participants in state-run public art programs will refuse to contribute their own various forms of artistic expression for fear that these too would be deemed government speech.
In their opposition, the Plaintiffs earnestly press the point that the mural is Judy Taylor's artistic expression and therefore it must be considered her own private speech, not the Government's speech. A primary problem with this contention is that the MDOL commissioned this work with a theme in mind; the Call for Artists read, in part:
DSMF ¶ 22A; PRDSMF ¶ 22A. If the mural is seen merely as an artistic rendition of the Call for Artists, the speech, though artistically conveyed, is the speech of the State Government. However, Ms. Taylor filed an affidavit in which she stated:
Taylor Decl. ¶ 14. At this stage, the Court must and does accept the truth of Ms. Taylor's statement.
But it views the statement as Ms. Taylor's declaration of artistic integrity and independence. In effect, the MDOL did not force Ms. Taylor just to color inside the lines. It did not tell her to include depictions of Frances Perkins, the Jay strike, or Mr. Scontras nor did it tell her how to draw anyone. But Ms. Taylor also acknowledged in paragraph 13 that "[i]t was obvious to all that the mural would be about the history of Maine labor." Id. ¶ 13. As it happens, the final product — the mural itself — is entirely consistent with what the MDOL called for. Further, Ms. Taylor admits that she was originally guided by the Call for Artists solicitation and that she made use of the state-suggested labor historian in developing her presentation. Ms. Taylor's declaration notwithstanding, the Court concludes that the MDOL got the message it commissioned when Ms. Taylor delivered the mural.
In their sworn declarations, Professors Christina Bechstein and Lauren Fensterstock raise serious questions about the impact of a judicial decision in favor of the State Defendants on the willingness of artists to participate in state-sponsored art programs. The professors predict disastrous consequences for Maine's public art programs if artwork commissioned by the state of Maine is deemed government speech. They say they personally will not participate in Maine-commissioned artwork and most artists would follow suit.
To allay (but not eliminate) their fears, the Court does not view this ruling as expansive. First, from the State Defendants' viewpoint, the state of Maine set about obtaining a work of art with a particular view about the history of labor in Maine, a view that championed labor to the neglect of management, and placed this work of art to dominate a small anteroom in a state agency that mediates labor-management issues. This type of work is dissimilar to the vast bulk of state-commissioned artwork, which has a purely artistic — not political — message and is placed in a school corridor or library. Thus, a sculpture carved under the Percent for Art program and placed in a school lobby would be an unlikely candidate for government speech protection.
Second, if the artist creates a work of art for the State that is perceived as a political message in favor of the ruling
The political wisdom of focusing policy disputes on a work of art aside, the intense public focus on this mural unleashed a torrent of constitutionally protected speech, educating the public on the history of Maine labor, the Maine roots of Frances Perkins, the first woman appointed to a United States Cabinet position, the proper sources of state funding for the arts, and the reach of First Amendment protections. Whether Ms. Taylor intended the mural to convey a one-sided message is beside the point. Once created, works of art take on a life of their own and typically stimulate responses — some anticipated by the artist, some not. See Summum, 555 U.S. at 476, 129 S.Ct. 1125 ("the thoughts or sentiments expressed by a government entity that accepts and displays ... an object may be quite different from those of either its creator or its donor"). Although it is rare in this day and age for a work of art to become the center of a political storm, it is certainly not unusual in history and it is to their considerable credit that artists have not generally shied away from controversy.
Third, if the artists fear what will happen to their works once the State assumes ownership, they have the right to negotiate a contract that protects those interests. Here, Ms. Taylor signed a contract that attached only the barest contractual strings to her mural once it was sold. If Maine artists wish to protect their continuing rights to their work, they could negotiate a contract that recognizes and protects those rights. See Serra, 847 F.2d at 1049 ("Serra relinquished his own speech rights in the sculpture when he voluntarily sold it to GSA; if he wished to retain some degree of control as to the duration and location for the display of his work, he had the opportunity to bargain for such rights in making the contract for sale of his work"). By the same measure, the state of Maine would have the right to reject the artist's demand that she retain control over a work of art that she has sold to the state. Of course, in this case, Ms. Taylor is not a party and has not attempted to enforce whatever contractual rights she may retain.
The Plaintiffs claim that they are not seeking to "forever freeze the government message of a prior administration, nor do they seek an order that [Ms.] Taylor's mural be permanently displayed at the MDOL. Instead, Plaintiffs merely challenge the State's viewpoint-based decision to remove [Ms.] Taylor's private expressive work." Pls.' Opp'n at 21-22. The Plaintiffs' argument lays bare an inherent contradiction: to force the current administration to replace the mural and to forbid its removal based on the message would in fact "freeze the government message of a prior administration." What the Plaintiffs deny seeking is precisely what they seek.
Finally, the Court responds to Attorney Beal's impassioned and articulate statement during oral argument that the Court should not allow a constitutional right to be determined by the ballot box. Mr. Beal properly said that our Constitution does not contemplate that the public will vote on whether torture is legal, a search is
However well expressed, the point is largely rhetorical. The question before the Court is not whether a constitutional right should be decided by the voters of the state of Maine; rather, it is whether there is a constitutional right to begin with. Having concluded that the state of Maine engaged in government speech when it commissioned and displayed the labor mural, it follows that Governor LePage also engaged in government speech when he removed the mural. The Governor's message — whether verbal or in the form of the expressive act of removal — is government speech.
Once the Court concludes that removal of the mural is government speech, the Plaintiffs' First Amendment claim fails. Whatever the Governor's intended message in removing the mural from the MDOL anteroom, the Plaintiffs have no constitutional right to its continued presence there. The state, as a governmental entity, is entitled to say what it wishes and to select the views that it wants to express or does not want to express. See Summum, 555 U.S. at 467, 129 S.Ct. 1125. The broader question as to the public policy implications of the Governor's actions and the resulting divided response is beyond this Court's ken and must be decided by the people of the state of Maine.
In their response, the Plaintiffs acknowledge that their due process claim is contingent on the success of their First Amendment claim. Pls.' Opp'n at 22 ("Plaintiffs' Fourteenth Amendment Procedural Due Process claim is premised on the deprivation of Plaintiffs' First Amendment rights without due process of law"). Because the Court has determined there is no First Amendment violation, the Plaintiffs' due process claim must necessarily fail as well.
With their constitutional claims, the Plaintiffs are also proceeding with two matters under state law, first alleging a violation of 27 M.R.S. § 86-A, which addresses the Maine State Museum's legal obligations regarding state-owned works of art, and second, seeking judicial review of the State's actions under the Maine Administrative Procedure Act, 5 M.R.S. § 11001 et seq. The gravamen of these claims is that before moving the mural from the MDOL anteroom, the State Defendants were compelled to accord the Plaintiffs a statutory hearing.
However, these are purely state law claims that are before this Court pursuant to the Court's supplemental jurisdiction. See 28 U.S.C. § 1367. Where a district court has dismissed all claims over which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3). The First Circuit generally assumes that once all federal claims are resolved, the state claims should be dismissed. See, e.g., Batterman v. Leahy, 544 F.3d 370, 376 (1st Cir.2008) ("if the federal claims were disposed of on the papers, the district court would likely decline to exercise pendent jurisdiction over the state-law claims"). Accordingly, the Court dismisses, without prejudice, the Plaintiffs' state law claims.
The Court GRANTS the State Defendants' Motion for Summary Judgment on Counts I and II of the Plaintiffs' Third Amended Complaint and DISMISSES WITHOUT PREJUDICE Count III and
SO ORDERED.
PRSAMF ¶ 9A. The State Defendants objected in part on the ground that the paragraph relied on the "worst kind of hearsay." DRPRSAMF ¶ 9A. The Plaintiffs rely on a sworn declaration of Charles Scontras, which stated:
Decl. of Charles A. Scontras ¶ 2 (Docket # 48). The Plaintiffs also cite the MDOL's Public Art Notification. Aff. of Lauren Fensterstock Attach. 2 Public Art Notification (Docket # 51). The Public Art Notification says that "[t]he Department ... was determined to commission a mural of labor history for their waiting room and raised funding." Id. at 1.
The State Defendants have a point about the admissibility of what an unnamed person told Mr. Scontras in 2007 about what officials in the MDOL were planning. But there is no dispute that around 2007, officials within the MDOL decided to embark on the project that resulted in the commissioning, creation, and hanging of the mural. Accordingly, the Court overrules the State Defendants' objection on the ground that it is only to provide background and is otherwise not contested. Mr. Scontras's statement about what he told MDOL officials has some foundational problems, but is not hearsay. Again, the Court will allow it as background.
PRSAMF ¶ 10.
PRSAMF ¶ 16.
The State Defendants objected to paragraph 10 on the ground that the record citation does not support the paragraph. DRPRSAMF ¶ 10. As Mr. Scontras's sworn declaration supports this contention, Decl. of Charles A. Scontras (Docket # 48) (Scontras Decl.), the Court overrules this objection.
In addition, the State Defendants objected to the Plaintiffs' characterization in paragraphs 10 and 16 of Mr. Scontras as a volunteer and in paragraph 16 as not an employee, first pointing to Exhibit 1 to their Reply to Additional Statements of Fact, which indicates that on February 1, 2008, the Bureau of Labor Education billed the MDOL $5,000 for Mr. Scontras's consultation services. DRPRSAMF Attach. 1, Scontras Invoice. The State Defendants also note that Maine law contains many definitions of employee and that while serving on the Committee he was covered as a state employee under some provisions of Maine law. DRPRSAMF ¶ 16.
The State Defendants' objection provoked the Plaintiffs to file a motion to strike. Pls.' Mot. to Strike. In the motion, the Plaintiffs observed that the Scontras Invoice is from one state agency to another and that there is no indication that Mr. Scontras was paid. Id. at 1. Furthermore, they pointed to a sworn declaration from Mr. Scontras in which he stated that when he was contacted about serving on the mural committee, he was not employed by MDOL, the MAC, or any state agency. Id. at 1-2; Supplemental Decl. of Charles Scontras ¶ 2 (Docket # 49). He stated that he had worked a quarter-time with the Bureau of Labor at the University of Maine but his paid position there was eliminated in July 2002. Id. Since July 2002, Mr. Scontras stated, he worked as Historian and Research Associate at the Bureau of Labor, University of Maine at Orono, on a volunteer basis. Id.
The Court views all of this as murky. How state agencies bill each other is beyond the Court's ken. However, it strikes the Court as odd that one state agency would bill another $5,000 for work performed by a volunteer. Nevertheless, Mr. Scontras's affidavit and the Bureau of Labor Education invoice, taken together, lead to the conclusion that this is precisely what happened. For purposes of the pending motion, the Court is required to accept the evidence in the light most favorable to the non-movant and it does so here. At the same time, the Court DENIES the Plaintiffs' motion to strike as regards Charles Scontras.
PRSAMF ¶ 22. The State Defendants objected, arguing that some but not much of the Scontras letter was in the "Call for Artists." DRPRSAMF ¶ 22. The Court compared Mr. Scontras's four-page letter with the one-page Call for Artists. It has concluded that the Plaintiffs' term "verbatim," defined as "word for word," WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 2542 (2002 ed.), overstates the facts and the State Defendants' phrase, "not much," understates them. The Court's "incorporated portions" language reflects the distinct similarity between the Call for Artists and the letter.
DRPRSAMF ¶ 74. The Plaintiffs' version of Ms. Taylor's intentions clearly differs from the MDOL's accompanying pamphlet. However, in accordance with the summary judgment praxis, the Court accepts the Plaintiffs' version — the ballot panel was not meant to refer specifically to organized labor — as Ms. Taylor's purported intentions are supported by her sworn declaration. Taylor Decl. ¶ 26.
The Court agrees with the State Defendants. The record evidence upon which the proponent of an undisputed material fact relies must be admissible. Contents of a newspaper article are not typically admissible for their truth. But, here, the Plaintiffs have taken it one step further. They have not produced the article or made it part of the record; instead, they have cited a website for the Court to look up the article. This is clearly improper. The Court cannot know whether what it might find on the internet is an accurate reflection of what the Plaintiffs cited. At the very least, the Plaintiffs should have produced a screenshot of the website article; however, even if they had, it is doubtful the Court would accept its contents for their truth. The Court has not included this statement in its recitation of facts.
Each of these objections raises troubling issues about the ultimate admissibility of this proposed testimony. However, a motion for summary judgment is not a motion in limine. These opinions are embedded in a motion for summary judgment and the Court is required to view the Plaintiffs' evidence in the light most favorable to them. Although this rubric does not make inadmissible evidence admissible, the Court is still obligated to recite the Plaintiffs' best case to determine whether they have raised genuine issues of material fact in defense of the motion. At the same time, the Court has altered the Plaintiffs' statements about the opinions of Professors Bechstein and Fensterstock to establish that the statements reflect their views, not unalterable fact. Also, the Plaintiffs have mixed in with the professors' opinions, the opinions of Judy Taylor, the artist. Ms. Taylor's opinions about her own art are different from the professors' professional opinions about art in general or this mural. The Court has sought to specify whose opinion is being expressed. The Court's inclusion of Professor Bechstein's and Professor Fensterstock's statements in its recitation of facts does not predict whether or to what extent either professor would be allowed to testify at trial. Accepting the evidence for the moment, the Court addresses the significance of this proffered evidence in its discussion.
Regarding the Chrisos interview, the Court included only the portion related to the mural.
Pls.' Opp'n at 21-22. During the Williams and Chrisos interviews, Governor LePage expressed a non-content-based rationale for removing the mural-namely, its funding sources. As the Plaintiffs concede, if the Governor's fiscal rationale is accepted as the true motive behind the mural removal, there would be no First Amendment issue here because the removal is not related to content. See Pls. Mot. to Reopen at 3 ("[i]f [Governor] LePage's statements are true, Defendants were not engaged in expressing the political views of the new administration which differed from those of the prior administration — the government speaking for itself").
From the Court's viewpoint, the Williams and Chrisos interviews add nothing to this motion. If the Court accepts the contents of the interviews as revealing the real reason for the removal, the Plaintiffs themselves admit they have no First Amendment claim. If the Court accepts the contents as revealing an additional motivation for removal, the claim becomes a hybrid claim. If the Court declines to accept these statements because they contradict the content-based rationale the Governor first expressed, the Court returns to the starting point. Under any of these choices, the result is the same.
