There is much more to this case than just "government speech". Reading through the Opinion (and all the statement of facts, etc) it is clear that the
Defendants (LePage et al) had the upper hand in regards to burden of proof.
Regarding the First Amendment issue, the Plaintiffs were arguing for "injury in fact"; that the removal of the mural was a cause of injury to their
recognized reciprocal right to "hear" the speech of the mural. Using the argument that they were "inspired" by it and thus denied that inspiration
with its removal was a weak argument.
Furthermore, they conceded that the 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".
This admission and understanding gives the State great latitude on the removal of a piece of artwork in the public square. Though the Plaintiffs did
try to argue the fact that the removal was based upon content -- how do they prove it was injurious to their First Amendment rights? A work of art,
by nature, conveys a message naturally. Such a message is of course subjective; even a picture of the Solar System could be interpreted to be
analyzed and viewed under a different prism to some. Thus with this mural, the Plaintiffs needed to overcome the burden to prove that Government was
invoking "governmental speech" in the name of stifling a message -- which wasn't accomplished at all.
Which lead the Court to pose the following hypothetical of sorts: Can a group of private citizens force the Government to adhere to the speech of a
previous administration? I take it further, can one section of Government force another to adhere to the speech of another? Since the mural is
identified as speech (given it does in-fact convey a message; both parties and the Court all agreed on this), is the Governor of Maine forced to
accept said speech?
Relying heavily upon Utah v. Summum to frame what is and what is not government speech, it is clear that the Court ruled this correctly and
judiciously -- in which I see no grant of "governmental speech" as such exists as soon as that body is formed by freely associated persons. And that
the First Amendment is to be viewed as the People prohibiting the regulation of speech, by government, in the private setting; but such speech from
Government, is outside the scope and purview of the First Amendment.
Applying Summum and the narrow scope in which Courts determine if it is "government speech", the Court stated the following:
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 monument), which was displayed (hung on the
wall) on public property (the MDOL offices).
Although the artist that created the works used their own ideas and images (as shown through statements of facts and discovery), the mural was
commissioned and funded by public monies to convey a message. That speech was not, say a private artist who bought a billboard in front of the
capitol, with a message against the Government (private speech), but rather a message emanating from government itself; in which was rejected by the
current Governor as a message he didn't want to convey under the guise of government.
Here is the Opinion if anyone is interested: The meat is around page 60, but the pages prior give vital background information and precedent.
John Newton et. al., v. Paul LePage et.
edit on 14-4-2012 by ownbestenemy because: (no reason given)