From yesterday’s Newton v. LePage (1st Cir. Nov. 29, 2012):
The question presented is whether the governor of Maine violated the First Amendment by removing a large state-owned mural, commissioned by the former administration, from its location on the walls of a small waiting room for visitors to the Maine Department of Labor (“MDOL”). The governor’s initial stated reason was that he agreed with complaints that the mural did not convey a message of evenhanded treatment toward both labor and employers and so the mural was inappropriate for that particular setting at MDOL. At the same time, he said the mural would be placed into a different public building, the Portland City Hall. Later, the governor added that he objected to the mural’s remaining at the MDOL location because the mural had been paid for from government funds which would better have been used for the state unemployment fund….
The mural’s prominence, filling two walls of a small waiting room, alone would easily lead viewers to understand that the government’s location of the art there was an endorsement of the mural’s message, even if the expression originated with the artist. That is particularly so, given the plaque identifying the work as being commissioned by the MDOL and paid for by the state.
The government, without violating the First Amendment, may, in this setting, choose to disassociate itself from an endorsement implicit from the setting for the mural, which it reasonably understood as interfering with the message of neutrality the administration wishes to portray. This is so whether the mural is anti-labor or pro-labor. It is well established, in a number of contexts, that maintaining the appearance of neutrality is a sufficient government justification. Many cases recognize that the government must have some discretion as to the choice of art it puts on the walls of its offices, even where the government is acting as an arts patron. It has discretion to make aesthetic judgments, with which some will agree and others will disagree.
Circuit courts have routinely rejected First Amendment claims brought against government officials who have chosen to remove art works, offensive to some but not others, from the walls of working government institutions on the grounds they were inappropriate to that location. Further, the law clearly gives governments leeway to take into consideration the problem of the captive audience and complaints it has received from those who viewed the art work while visiting government offices for other reasons. See Close v. Lederle, 424 F.2d 988 (1st Cir. 1970) (no First Amendment violation from the removal by the University of Massachusetts of certain offensive but not obscene art work from a corridor frequented by students). As Judge Aldrich said in Close, the defendants “were entitled to consider the primary use to which the corridor was put.” Id. at 990. The defendant officials were also entitled to consider the complaints they had received, and even if there had been no complaints, they were “warranted in finding the exhibit inappropriate to that use.” Id.; see also Piarowski, 759 F.2d at 630-31 (no First Amendment violation where college chose to remove from walls artwork whose prominence and location implied college approval and not just custody); Ill. Dunesland Pres. Soc’y v. Ill. Dep’t of Natural Res., 584 F.3d 719 (7th Cir. 2009) (no First Amendment violation when state park decided not to display certain items on display racks)…. Nor is there any violation of the First Amendment from the fact that a newly elected administration chooses to convey a different message than that conveyed by the administration it replaced….
Sounds right to me, though I think the reliance on the troublesome “captive audience” rationale is unnecessary. When the government puts up a particular item of speech (art, text, video, or what have you), not as part of an open-to-a-diversity-of-speakers public forum but instead because it likes that particular speech, it should later be free to take it down, even if only because the new administration now dislikes the speech, finds it inappropriate in this location, finds it too controversial, or what have you. Private speakers remain free to speak on private property, or in a public forum. But the First Amendment gives them no right to have the government continue to specially display their speech on the government’s property.