Maine Supreme Court and "government speech"

Note the recent Maine Supreme Court decision upholding the right of a Governor to deface a labor mural. A federal judge agreed:

www.kjonline.com...

Apparently, the Governor was exercising "government speech" in attacking laboring people and workers. Note the danger here. For one thing, "government speech" becomes something privileged. I thought that the right to free speech was a citizen's right? Citizens are losing their rights to free speech and now we have a doctrine of government speech created entirely by judicial fiat. Once government creates rights for abstract entities like governments and corporations we tend to lose our rights as humans (as many of you have noticed).

The Executive Branch is now defined as "the government" by the Court. This is a direct attack against the balance of powers. The Governor is solely empowered to exercise "government speech." It is "I am the King" transplanted from English law to American law. This is a dangerous precedent. It must be overturned by the US Supreme Court.

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. al.

Originally posted by EarthEvolves
The Executive Branch is now defined as "the government" by the Court. This is a direct attack against the balance of powers. The Governor is solely empowered to exercise "government speech." It is "I am the King" transplanted from English law to American law. This is a dangerous precedent. It must be overturned by the US Supreme Court.

I wanted to address this separately as it is important and one that should be discussed outside the realm of this case alone.

When acted upon as it was in this case, the term "government speech" was solely attributed towards Governor LePage's removal of the mural, the governor of course being from the Executive branch of the State of Maine. The Court itself did not deem that the two were interchangeable nor exclusive from each other -- it wasn't in the scope of their argument; though for the sake of debate and discussion here, it is a valid point.

Where I believe your understanding of this to be incorrect is that under this case, your statement above gives off the impression that the mural was a legislative act (of which if it fell under the State's "Art for Percent" act it could have been argued as such), but it wasn't. The mural was commissioned by the Department of Labor, of which falls under Maine's Executive branch of government.

The governor was well within his "government speech" rights to decide to remove the mural -- just as he would be well within the rights to commission another that portrays his administrations views upon labor. I would say that the Court's use and connection of "government speech" and the Executive here are correct -- since it is from a department in which falls under the Executive.

reply to post by ownbestenemy


You sound like a lawyer. I am a bit averse to lawyers, to be honest, but I will do my utmost to engage you with courteous discourse. I believe that lawyers and bankers have both destroyed the moral fabric of this country. Nothing personal, since I don't know you of course.

Let me respond by stating that it might well be appropriate that the defendants won in this case. I doubt that one Governor can bind the next. What I do object to is the creation of a new legal doctrine that is vague and ill- defined such as "government speech." This was a doctrine created with the apparent goal of empowering the State to disparage labor in this specific context, not as a well defined statement on the Executive Branch and the separation of powers. As it is, rights vested in incorporations be they public or private seem to coincide with rights divested from individuals. That is more often the case than not.

The decision could have been decided on the simple basis of the fact that there is no contract violation here. That may well be the case. I do not believe that an elected Governor can bind the next Governor, so any contract would be invalid. If you are correct that there was no legislative action, then it may be that the Governor has a plenipotentiary right to act as "legislature" in deciding the rules within his own office or domain, however disgustingly abhorrent his decisions might be. On *THAT* basis the case could have been decided. The decision of that Governor was abhorrent, and he should be protested, but yes he may have the valid right under Constitutional precedent to be an ignorant b*stard if simply decided as a case of executive powers. I cannot say, since I am not familiar with the Constitution of that particular state or the issue of how the mural came to be painted.

What I do know was that this decision opened a legal minefield. The Judges are essentially stating that the Governor speaks for "the Government," can exercise government speech, and that said speech commits the government to an anti-labor position in removing the mural. It is an attack on the separation of powers. Government speech is now a legally created doctrine that is not governed by any Bill of Rights but is now a fully incorporated entity unto itself unless limited. A policeman who clears the streets of someone with brown eyes might be considered to be exercising "government speech" unless clearly limited by some statute, Bill of Rights, or precedent. The policeman exercising arbitrary powers would now be seen as having the default position of being correct unless corrected. This is an inversion of the Constitutional assumption of there being no government power unless granted.

Once "government speech" comes against labor there is not stopping the full force of repression unless there is positive action to limit that repression and in this climate I doubt there would be. Obama would do what he always does---nothing. The Democrats would be useless. Today a mural. Tomorrow who knows!

Counselor, I would ask that you consider the implications here. There is even the possibility that "Government speech" might leak out of the Governor's Mansion and out in to society unless otherwise checked, a dangerous notion if there ever was one.

Originally posted by EarthEvolves
You sound like a lawyer.

While I am flattered you think so, I do not practice law. I do however make it my duty, as a free person and self-governing entity, to know the law and be able to understand it.

I doubt that one Governor can bind the next. What I do object to is the creation of a new legal doctrine that is vague and ill- defined such as "government speech." This was a doctrine created with the apparent goal of empowering the State to disparage labor in this specific context, not as a well defined statement on the Executive Branch and the separation of powers.

First, you are correct. That is exactly what the Court said (albeit, in legalese) when they ruled in favor of the governor; his speech, as governor, extended to the decision to remove a mural that was publicly funded and portrayed a certain message. But I fear you are attributing something to this case that just isn't true. The Court didn't create any precedents or develop the "doctrine" of "government speech".

That was established in Pleasant Grove City v. Summums. In that case, the Court carved out a narrow exception to what is determined to be "government speech". They also provided a set of questions to be applied to cases such as this one, to help lower courts determine if the speech was in fact from government.

The need for the exception isn't to establish a sector of speech that is protected, but rather to ensure that free speech is still applied to government; as well as to the People. In doing so, Summums enabled Government the ability to dictate and establish their speech separate from previous members of said Government.

If you are correct that there was no legislative action, then it may be that the Governor has a plenipotentiary right to act as "legislature" in deciding the rules within his own office or domain, however disgustingly abhorrent his decisions might be.

There is no "if" since the mural in question didn't fall under the legislative act as prescribed by Maine's "Percent for Art Act". That act only applies to new buildings and/or construction. The building in which the mural was commissioned was an existing establishment. I will agree that his actions may not be the most statesman like, but it was well within his "rights" as governor to dictate his administration's speech so to speak by removing the mural.

I cannot say, since I am not familiar with the Constitution of that particular state or the issue of how the mural came to be painted.

You seem to be an intelligent individual who has come here to learn -- may I suggest before you engage in posting on certain topics that you verse yourself in the particulars of the topic? Gain some background and understanding so that when challenged or debated, you have the tools necessary to engage with knowledge. This is exactly why I posted the link to the Opinion of the case; so that we can bypass 3rd party sources and go straight to the source of the story. In it, we obtain full background on the case, including all referenced cases that led to the Opinion. It is a wealth of knowledge.

What I do know was that this decision opened a legal minefield. The Judges are essentially stating that the Governor speaks for "the Government," can exercise government speech, and that said speech commits the government to an anti-labor position in removing the mural.

How so?

It is an attack on the separation of powers. Government speech is now a legally created doctrine that is not governed by any Bill of Rights but is now a fully incorporated entity unto itself unless limited. A policeman who clears the streets of someone with brown eyes might be considered to be exercising "government speech" unless clearly limited by some statute, Bill of Rights, or precedent.

Once again, the idea of "government speech" was not created in this case... And your scenario regarding the police officer wouldn't pass the litmus test set forth by the Supreme Court regarding "government speech". It is moot.

"That was established in Pleasant Grove City v. Summums. In that case, the Court carved out a narrow exception to what is determined to be "government speech". They also provided a set of questions to be applied to cases such as this one, to help lower courts determine if the speech was in fact from government."

Then we have an issue of regress. Perhaps I should have addressed this decision and not the decision cited above. In either case, the notion of "government speech" is a dangerously loose doctrine. Whether applied from precedent or applied whole-clothe, it is dangerous either way. I admit my unfamiliarity with the Maine Constitution, and it may be that the Governor has power under said Constitution, however much I might object to having an idiot for Governor. It is the doctrine of "Government Speech" that I object to.

What is your interest in this anyway? Are you an Employee of the Governor?

Originally posted by EarthEvolves
What is your interest in this anyway? Are you an Employee of the Governor?

May I offer a suggestion and don't fall into the "ATS trap" off labeling dissenting or opposing views as possibly being a "shill" or "government employee".

My interest is trying to understand and study the Court's opinion and if it falls under the protection of the Individual from the Government. In this case, the Court ruled that the Governor, as acting Executive of Maine, had the right to dictate the message a department was conveying with the mural. It no longer applied to the message that Government wanted to portray and thus was removed.

If we were to do a crude comparison:

We could look at a private entity (in which the First Amendment seeks to protect) limiting or dictating their message or the message wanting to be conveyed, we all can see that Government is limited and bound by the First Amendment.

In the public square of Government, the First Amendment isn't applied, thus the Court's opinion on "government speech". In Summum, the court recognized that Government itself has the ability to speak and present a message just as you or I could -- under certain and carefully applied rules set forth by the Court.

"A government entity 'is entitled to say what it wishes'..." -- Rosenberger v. Rector and Visitors of Univ. of Va.

Government is also able to select the message it wishes to express as its message of the administration, but, as the court pointed out in Summums, "This does not mean that there are no restraints on government speech...government speech must comport with the Establishment Clause." This is to also include any regulatory or by-law restrictions placed upon a Government regarding their ability to speak.

Justice Alito summed it up nicely with this:

If petitioners were engaging in their own expressive conduct, then the Free Speech Clause has no application.
The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.

reply to post by ownbestenemy


Again, a regress. It may be that the doctrine of "government speech" is not an innovation. However, that does not diminish the danger of vesting the Executive with the power to define the speech of the government.

Also, you never really did answer my question as to whether you were affiliated with the Governor. Just noting a fact...

Originally posted by EarthEvolves
reply to post by ownbestenemy

 

Again, a regress. It may be that the doctrine of "government speech" is not an innovation. However, that does not diminish the danger of vesting the Executive with the power to define the speech of the government.

Also, you never really did answer my question as to whether you were affiliated with the Governor. Just noting a fact...

Okay -- then what dangers do you see with Government, specifically the executive department of any given State, being able to speak? Should they only voice the "will of the People"? "Government speech" is a natural extension of our Individual Right to speak freely.

The reason it is a natural extension is that Government only exists because we (read Individuals) do so agree that it exists. And it is us -- again Individuals -- who occupy Government. Of course, this is a vacuum view point and as the same can be said of life, nothing goes as planned. But since we protect the Right for Individuals to speak freely, it extends to those who reside within the political spectrum and in the halls of Government.

And no, I do not work for the governor and you are not just "noting a fact" if you do know the fact.

reply to post by ownbestenemy


I was noting the fact that you never affirmed or denied any connection. You have now denied a connection, and I presently take you at your word. Again, noting facts.

Government speech is ill-defined. You have defined it as an extension of a person's right to speak. However, that extension is a vague one. A group of people may have the right to speak with one voice, and yes that might be the extension of an individual's right to speak. Organizations comprised solely of individuals joined in a horizontal union, such as the NRA or Greenpeace, may similarly be thought of as an extension of an individual, albeit joined as a group of individuals. Similarly, churches and other religious bodies may be thought of in a similar manner, provided that they are voluntarily joined.

Even corporations might be thought of as having the extension of an individual's right to speak---a problematic assertion perhaps, but one that I am not going to argue one way or another in this thread. A government, by contrast, cannot be thought of that way, no matter how democratic. Even if the government is a pure majority rule government, and I am out-voted 99 to 1, the right of that super-majority to speak is not an extension of my right to speak. It does not follow. Governments are coercive by nature. The freedom of a coercive body is not a natural extension of the freedom of an individual body. At least such a doctrine would need to be narrowly defined or else it becomes potentially dangerous due to its vagueness.

There may be a right of government speech but it is categorically different than an individual's right to speak, if such a doctrine can be narrowly defined in a way as not to be dangerous. Even then, in a republican system of government, that right cannot be vested in one man. A republic becomes monarchical very fast when one man speaks for the entire government. The executive branch is not the government.

Originally posted by EarthEvolves
There may be a right of government speech but it is categorically different than an individual's right to speak, if such a doctrine can be narrowly defined in a way as not to be dangerous. Even then, in a republican system of government, that right cannot be vested in one man. A republic becomes monarchical very fast when one man speaks for the entire government. The executive branch is not the government.

This case utilized the narrowly defined definition of "government speech" when they applied it. That is where I am confused on your argument. They also didn't make the connection that you are attributing, that being that the Executive is the government.

But for discussion sake, the case was against the governor and his decision to remove the mural. That is what the Court was trying. When they applied Summums to his action of "speech", it was his actions that were weighed, not Government. The question that follows from that was does the governor have the Right to define the message in which his departments portray?

Should each action that a governor have to be put to legislative action and then presented to the People?

Since the O.P. is making connections - albeit giant leaps of connections - it is arguable that is what is good for the goose is good for the gander. Especially since the only person who has even shown an interest in having a discussion in this thread has been impliedly accused of being a government shill by the O.P., it begs the question, what is the O.P.'s interest in this matter? If we are going to leap across the Grand Canyon to make connections why not make the connection that the mural was a "labor" mural. Once that connection is made why not take another leap and connect labor to Marxism, and while we're leaping for our connections, why not acknowledge that Marxism has little to no regard for unalienable rights.

Indeed, in the O.P. it was suggested that only "citizens" have rights, but in order for this assumption to be true then it would necessarily mean that rights are created by government and do not preexist government. Now, let's reverse the connections made: a.) rights are not unalienable but rather creations granted by government. b.) Marxists believe that the best way to a "stateless society" is by creating a gargantuan state that imposes Marxist ideology upon the whole. c.) Labor "owns the means of production"

These connections were not hard to make, they are present in this thread, and what is more disturbing is that the one person who even attempted to grant this thread any beingness and engage in a meaningful discussion has been treated with hostility, at times covertly so, and at other times overtly so. In spite of that, ownbestenemy has maintained a statesman quality that deserves more respect than has been shown in this thread. OBE is the statesman here, I am not. I have no qualms about recognizing the connection between "labor" and the genuine attempt to argue that speech should be limited.

Limiting speech, outside of actual injury (which is arguably not so much a limitation of speech as the consequences to certain speech) never leads to any good.

"Quote:"Indeed, in the O.P. it was suggested that only "citizens" have rights, but in order for this assumption to be true then it would necessarily mean that rights are created by government and do not preexist government. Now, let's reverse the connections made: a.) rights are not unalienable but rather creations granted by government. b.) Marxists believe that the best way to a "stateless society" is by creating a gargantuan state that imposes Marxist ideology upon the whole. c.) Labor "owns the means of production"

EarthEvolves Responds: By "citizens" I mean persons, actual living persons. I am not referring to the Bush/Obama notion that only American citizens have rights. I am referring to the notion that only living persons have inalienable rights granted by God. (Marxists don't generally refer to God, in my experience)

Corporations and governments are not persons. And, if I were to grant something called "government speech," it would certainly not be inalienable. It would be conditional on the idea that the government is Constitutional and serves the public. Perhaps to you the rights of the State are inalienable and absolute, but to me they are conditional on the State as a creature of its citizens. That is not Marxism. It is Locke, pure and simple.

As for my connection? I admit that I have no personal connection to the case. No need for denial. Hostility? I am hostile to ideas and not to persons. I do not know "ownbestenemy," nor do I have anything against him. I am merely here to show him that he is missing a piece of the puzzle, and not to empower tyranny which would make him "his own best enemy." (Sorry, I couldn't resist)

I am commenting on the term "government speech." It was their term and not mine. They may not have directly stated that the Executive has exclusive plenipotentiary right to exercise "government speech," but their ruling lends itself to that interpretation.

I do not doubt that the Governor is the chief executive, and probably did have the right to remove the mural (although only a douche would actually have done so). What I object to is the open-ended right of one man to exercise "government speech" in a Republic. Also, governments and corporations are not persons in my book.

Originally posted by ownbestenemy

Originally posted by EarthEvolves
There may be a right of government speech but it is categorically different than an individual's right to speak, if such a doctrine can be narrowly defined in a way as not to be dangerous. Even then, in a republican system of government, that right cannot be vested in one man. A republic becomes monarchical very fast when one man speaks for the entire government. The executive branch is not the government.

This case utilized the narrowly defined definition of "government speech" when they applied it. That is where I am confused on your argument. They also didn't make the connection that you are attributing, that being that the Executive is the government.

But for discussion sake, the case was against the governor and his decision to remove the mural. That is what the Court was trying. When they applied Summums to his action of "speech", it was his actions that were weighed, not Government. The question that follows from that was does the governor have the Right to define the message in which his departments portray?

Should each action that a governor have to be put to legislative action and then presented to the People?

Originally posted by EarthEvolves
I am merely here to show him that he is missing a piece of the puzzle, and not to empower tyranny which would make him "his own best enemy." (Sorry, I couldn't resist)

Do not be sorry, I make the same (albeit quite ridiculous) pun myself from time to time. But what piece am I missing? Where am I empowering tyranny?

Once again though, does the governor have the latitude, following the Establishment Clause and other laws, to form his speech in which he wants to convey for his administration? Does he need to seek legislative action for what he says? Does he need permission from the People to speak a certain message?

The People of Maine elected him to speak for that branch of Government. He spoke and you are scared it will snowball into some massive fallout of "government speech" abuse....

Particularly in this case, the mural was commissioned by the Labor Department (An Executive branch bureaucracy). The governor, regardless of how it was done or the spin he gave, felt that the mural wasn't representative of his administration. There was no break-down in the separation of powers (I would be wary and more forgiving to your arguments regarding this if say the mural was a legislative commissioned piece and the governor removed it).

reply to post by EarthEvolves


I loved your reply. I couldn't have asked for a better one. I agree that governments right to speech is not unalienable, but this has little to do with argument of limiting speech. This seems to be what you are advocating, a limitation of government speech. However, the example you use to support your advocacy is over a mural, of which Governor La Page felt:

According to LePage spokesman Dan Demeritt, the administration felt the mural and the conference room monikers showed "one-sided decor" not in keeping with the department's pro-business goals.

The mural can be seen in the same Sun Journal article I've linked.

The assertion that this mural is "one-sided" in its "decor" is a reasonable assessment of that mural. The mural itself is inappropriate in its unabashed advocacy of viewing "labor" as the "victim". Personally, I do not care if one administration has a pro labor mural painted on public property, only to find the next generation paint over it. It is not worth muddying the pristine waters of the right to speech by bickering over whether a pro-labor union mural should be protected, and oddly so by advocating a limit on a Governors right to speech. By painting over the mural, Governor La Page is making a strong statement. You are suggesting that no Governor should have the right to make such a statement, but it leaves us then with the paradox of a Governors right to have a pro-labor union mural painted in the first place.

If you wish to protect the mural, I can understand this. However, if this is just an issue of "too much speech" being granted government, then the issue of the very existence of the mural becomes the albatross you must bear, and if it is just about protecting this mural, then advocating a limitation on speech, regardless of who or what is exercising it, seems a bit extreme, and there must be more effective ways to protect that mural. Forcing this issue into court while the clear and present unalienable rights of individuals are constantly being abrogated and derogated, even in Maine, strikes me as the much more serious problem.

reply to post by ownbestenemy


Again, the doctrine of government speech is broad and ill defined. You are defining it charitably, but you are not the judge in the case.

Originally posted by EarthEvolves
Note the recent Maine Supreme Court decision upholding the right of a Governor to deface a labor mural. A federal judge agreed:

www.kjonline.com...

Apparently, the Governor was exercising "government speech" in attacking laboring people and workers. Note the danger here. For one thing, "government speech" becomes something privileged. I thought that the right to free speech was a citizen's right? Citizens are losing their rights to free speech and now we have a doctrine of government speech created entirely by judicial fiat. Once government creates rights for abstract entities like governments and corporations we tend to lose our rights as humans (as many of you have noticed).

The Executive Branch is now defined as "the government" by the Court. This is a direct attack against the balance of powers. The Governor is solely empowered to exercise "government speech." It is "I am the King" transplanted from English law to American law. This is a dangerous precedent. It must be overturned by the US Supreme Court.

I love the Corporate free speech and the government free speech -

Both concepts are Orwellian at best

reply to post by Jean Paul Zodeaux


The reason that unalienable rights of individuals are being assaulted has a lot to do with power structures. For one thing, corporations have amassed tremendous power while traditional guarantees of individual rights are being taken down.

Originally posted by EarthEvolves
reply to post by Jean Paul Zodeaux

 

The reason that unalienable rights of individuals are being assaulted has a lot to do with power structures. For one thing, corporations have amassed tremendous power while traditional guarantees of individual rights are being taken down.

You're dodging the question. If "government speech" should be limited, then how do you explain the existence of the labor mural to begin with?