Mural ruling shows vitality of government-speech doctrine

Friday, November 30, 2012

A recent federal appeals court decision rejecting a First Amendment lawsuit over the Maine governor’s removal of a mural shows the power of the government-speech doctrine.

As the Associated Press reported, Maine Gov. Paul LePage removed a state-owned mural from the walls of a small waiting room for visitors in the Maine Department of Labor. The governor said the mural presented a one-sided view favoring organized labor and should be placed in another building.

The 1st U.S. Circuit Court of Appeals rejected a free-speech lawsuit by five Mainers in Newton v. LePage. The plaintiffs contended that removing the mural amounted to unconstitutional viewpoint discrimination because the governor objected to the messages it conveyed.

In ruling against that argument, the appeals court relied in part on the power of the government-speech doctrine, which often enables government agencies to disavow particular messages without violating the First Amendment.

“The government, without violating the First Amendment, may, in this setting, choose to disassociate itself from an endorsement implicit from the setting for the mural, which it reasonably understood as interfering with the message of neutrality the administration wishes to portray,” the appeals court wrote.

The 1st Circuit questioned whether the mural actually represented government speech or private speech. But the rationale in its decision was the functional equivalent of applying the government-speech doctrine — that the government often can favor certain messages and disclaim others without being found to have committed viewpoint discrimination.

“It is clear that the government speech doctrine favors the result we reach,” the appeals court added.

It is also clear — from this opinion and others — that the government-speech doctrine is a formidable force in First Amendment law.

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