Full opinion text
ORDER ON MOTION FOR SUMMARY JUDGMENT 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. I. STATEMENT OF FACTS A. Procedural History 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, they alleged that removing a labor history mural from the offices of the Maine Department of Labor (MDOL) violated their First Amendment right to receive information and ideas and the procedural due process requirements of the Fourteenth Amendment of the United States Constitution. They also alleged a breach of the Maine State Museum’s fiduciary duty to protect and preserve historical materials under 27 M.R.S. § 86-A, and they sought review of the government’s action pursuant to Maine Rule of Civil Procedure 80C. 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. Pis.’ Opp’n to Defs.’ Mot. for Summ. J. (Docket #44) (Pis.’ 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 them 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. Pis.’ Resp. to Defs.’ Statements of Undisputed Material Fact and Pis. ’ 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 Pis. ’ Resp. to State Defs. ’ Statements of Undisputed Material Fact and State Defs. ’ Resp. to Pis. ’ 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. Pis. ’ Mot. to Strike (Docket # 61). On September 12, 2011, the State Defendants opposed the Plaintiffs’ Motion to Strike. State Defs.’ Opp’n to Pis.’Mot. to Strike (Docket # 62) (State’s Opp’n to Pis.’ Mot. to Strike). In October 2011, the Plaintiffs moved to reopen the record for summary judgment. Pis.’Mot. to Reopen Record (Docket # 63); Pis.’ First Am. Mot. to Reopen Record (Docket # 64) (Pis. ’ 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. Pis.’ Sup plemental Br. in Opp’n to Defs.’ Mot. for Summ. J. (Docket # 74) (Pis. ’ Supplemental Opp’n); Pis.’ Revised Statement of Additional Material Facts (Docket # 75) (PRSAMF). On December 12, 2011, the State Defendants filed a supplemental reply to the Plaintiffs’ Response to the Motion for Summary Judgment, replied to their Revised Statement of Additional Material Facts, and posited an additional fact. State Defs.’ Resp. to Pis.’ Supplemental Br. in Opp’n to Defs.’ Mot for Summ. J. (Docket # 77) (State’s Supplemental Resp.); State Defs.’ Reply to Pis.’ Revised Statement of Additional Material Facts; Defs. ’ Additional Facts (Docket # 76) (DRPRSAMF; DAF). The Plaintiffs did not respond to the State Defendants’ additional fact. The Court heard oral argument on March 1, 2012. B. The Facts 1. The Parties The Plaintiffs, John Newton, Don Berry, Joan Braun, Natasha Mayers, and Robert Shetterly, are residents of the state of Maine. Stip. ¶¶ 1-5. Each plaintiff had viewed the labor history mural painted by Judith Taylor at its location in the MDOL office in Augusta, had been inspired and educated by the mural, and had planned to see the mural again at its Augusta location. Id. Plaintiff Don Berry has “appreciated the depictions of the history of the struggles and Maine workers in trying to gain fair treatment and fair compensation for their labor.” Stip. ¶ 76. The Defendants are Paul LePage, the Governor of the state of Maine, Robert J. Winglass, the Commissioner of the MDOL, and Joseph Phillips, the Director of the Maine State Museum (Museum). Stip. ¶¶ 6-8. 2. The Mural: The MDOL Proposal 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. In conjunction with a planned move of the Department into the new offices, the Baldacci Administration considered the creation of a mural as part of the décor. PSAMF ¶ 9A; DRPSAMF ¶ 9A. Officials from the MDOL consulted about the creation of the mural with Charles Scontras, a labor historian who at the time was a volunteer associated with the Bureau of Labor Education at the University of Maine, and Mr. Scontras indicated that a mural depicting the sweep of Maine’s labor history, from artisan workshops through industrialization, to the development of the global economy, might be a good theme for the mural. PRSAMF ¶ 10; DRPRSAMF ¶ 10. 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), also a state agency, for assistance in putting the project out for proposal to private artists and the MAC assisted the MDOL in doing so. Stip. ¶ 10; DSMF ¶ 10A; PRDSMF ¶ 10A. One of the MAC’S responsibilities is to assist governmental and private entities in commissioning art. Stip. ¶ 11. MAC also oversees the “Percent for Art” program, which generally requires that 1 percent of the construction appropriation of a public building be used “for the purpose of acquiring, transporting and installing works of art”; however, the MDOL mural was not a Percent for Art project because the MDOL office space was leased and not new construction. Stip. ¶¶ 12-13, 113. According to the Public Art Notification prepared by Donna McNeil, the Director of the MAC, the MDOL wanted to go through a public process to follow the Percent for Art law. Stip. ¶ 14; PRSAMF ¶¶ 14, 18; DRPRSAMF ¶¶ 14, 18; DSMF ¶ 13A; PRDSMF ¶ 13A. The Public Art Notification sets forth the decision of the Committee that chose Ms. Taylor’s proposal. DSMF ¶ 13C; PRDSMF ¶ 13C. 3. The MDOL Committee 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 Fort-man, 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 Fensterstoek, 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. DSMF ¶ 17A; PRDSMF ¶ 17A. 4. The “Call for Artists” 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 creation of a Public Arts mural to be placed in the anteroom of the newly renovated MDOL offices in Augusta, Maine. Stip. ¶ 20; PRSAMF ¶20; DRPRSAMF ¶ 20. The “Call for Artists” specified that the mural was being commissioned to cover two contiguous walls in the anteroom— 18.5 by 6 feet and 12 by 6 feet — above a knee wall. Stip. ¶ 22. The “Call for Artists” solicitation stated that the MDOL wanted a statement from the artist on her interest and approach to “art in public spaces” of the MDOL, specified that submissions should be submitted to Donna McNeil by June 1, 2007, and indicated that the Committee would make the final decision on the award of the commission to create the mural. Stip. ¶¶ 24-26; PRSAMF ¶ 21; DRPRSAMF ¶21. The Call for Artists incorporated portions of Mr. Scontras’s March 17 letter to Leslie Manning suggesting what the mural might portray. PRSAMF ¶22; DRPRSAMF ¶ 22. In requesting a “historically representative” mural, the Call for Artists, read in part: Above all, the value and dignity of workers, and their critical role in creating the wealth of the state and nation should be emphasized. Symbols such as archive photography, labor newspapers, labor advocacy and legislation should be referenced. In essence, Maine workers should strongly be portrayed as more than an “impersonal” cost of production. DSMF ¶ 22A; PRDSMF ¶22^ 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 brief one-page written statement and approach to art in the public places of this site.” Id. ¶ 27 (emphasis in original): 5. Judith Taylor, Her Tour of the MDOL Office, and Her Proposal 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 within the MDOL offices to which the public has direct access and where “viewing material” is located. Id. 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. PRSAMF ¶ 28A; DRPRSAMF ¶28^ Ms. Taylor has said that although “art in public places” is a term often used to refer to Percent for Art projects, her approach for developing art for public places has been to express her own artistic ideas rather than the ideas of the contracting agency, whether it be a school, a courthouse, or a department of state government. PRSAMF ¶ 29; DRPRSAMF ¶ 29. 6. The Initial Committee Screening 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. PRSAMF ¶31; DRPRSAMF ¶ 31. No one on the Committee discussed the subject matter suggested in the Call for Artists, expressed a belief that the artist selected should convey a message or viewpoint of the MDOL or the State, or voiced concern about whether the artist selected would or would not convey any particular message or viewpoint. Id. There was likewise no discussion of what message the mural should convey, how Maine workers should be portrayed, or whether the mural should be “pro-union” or “pro-business.” Id. At the meeting, the Committee narrowed the artists to three, including Ms. Taylor, and asked them to submit formal proposals. Stip. ¶ 33. 7. From Screening to Selection 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, or studies, based on her reading of Maine labor history. Id. The maquettes represented Ms. Taylor’s aesthetic idea of how to represent Maine’s labor history. Id. In preparing her formal proposal, Ms. Taylor did not refer back to the solicitation but developed all of the ideas and presentations for the mural on her own based upon her own research and discussions with Mr. Scontras, whom the Call for Artists had identified as a resource. PRSAMF ¶ 34; DRPRSAMF ¶34. Ms. Taylor submitted her formal proposal dated September 10, 2007. Stip. ¶ 35. 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. PRSAMF ¶ 36; DRPRSAMF ¶ 36. No one at the MDOL ever suggested to Ms. Taylor or Mr. Scontras what message or content the mural should convey or what criteria Mr. Scontras should use in evaluating the proposals. Id. 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. PRSAMF ¶ 37; DRPRSAMF ¶ 37. In her presentation, Ms. Taylor attempted to illustrate her ideas on design and composition by showing the Committee images of some of her own figurative works, as well as works by well-known artists, including Caravaggio and Manet. Id. The Committee members asked Ms. Taylor about the materials she wanted to use, including whether she would use canvas and what kind of frames she would use. Id. The Committee also discussed that it was important for the mural to be well constructed and painted in a manner that would not deteriorate quickly, as it was meant to be a permanent installation. Id. No one on the Committee asked Ms. Taylor any questions about the viewpoint she wanted to convey through the mural. Id. 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. PRSAMF ¶ 39A; DRPRSAMF ¶ 39A. Mr. Scontras favored Ms. Taylor’s presentation because the way she proposed to present the themes about Maine’s labor history was very friendly and inviting to the eye. PRSAMF ¶ 40; DRPRSAMF ¶ 40. Her depictions seemed clear and authentic, and he liked her idea immediately. Id. Mr. Scontras also recalls that the Committee favored Ms. Taylor’s presentation because her representations were clear and understandable and the Committee liked her style. PRSAMF ¶ 41; DRPRSAMF ¶41. Before determining to select Ms. Taylor’s proposal, there was no discussion about what, if any, content, message, or viewpoint the Committee wanted the finished mural to express. PRSAMF ¶ 42; DRPRSAMF ¶ 42. The Public Art Notification provided that “Judy [Taylor] will be working closely with labor historian [Charles] Scontras to build the timeline and select significant imagery.” DSMF ¶ 42A; PRDRSMF ¶42A. According to the Public Art Notification Ms. McNeil prepared, Ms. Taylor “was selected because of her classic WPA style of painting and her in-depth research into the theme.” PRSAMF ¶ 43; DRPRSAMF ¶ 43; DSMF ¶ 38B; PRDSMF ¶ 38B. 8. The Contract 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. DSMF ¶ 39A; PRDSMF ¶39A. The fee for the mural was $60,000. DSMF ¶ 44A; PRDSMF ¶ 44A. Ms. Taylor signed and returned the contract in December 2007. Stip. ¶41. The contract sets forth the terms and conditions of Ms. Taylor’s engagement. PRSAMF ¶ 45A; DRPRSAMF ¶ 45A. Although the contract was not a Percent for Art project, it used in part a Percent for Art form as Rider A of the contract. Stip. ¶ 47. The reference to Percent for Art in the contract should have been removed. DSMF ¶ 47A; PRDSMF ¶ 47A. Portions of the contract provided that: 1) Ms. Taylor “shall act in the capacity of an independent contractor and not as an officer or agent of the State”; 2) The Agreement Administrator is the MDOL’s representative who “has the authority to curtail services if necessary to ensure proper execution”; 3) The Agreement Administrator was Jane Gilbert, Deputy Commissioner of the MDOL; 4) The MDOL “may order changes in the work, the Agreement1 amount being adjusted accordingly”; 5) “The performance of work under the Agreement may be terminated by the [MDOL] in whole, or in part, whenever for any reason the Deputy Commissioner shall determine that such termination is in the best interest of the [MDOL]. The Agreement shall be equitably adjusted to compensate for such termination, and modified accordingly”; 6) “Any legal proceedings against the State regarding this Agreement shall be brought in State of Maine administrative or judicial forums”; 7) Ms. “Taylor agrees to indemnify, defend, and save harmless the State, its officers, agents and employees from any and all claims, costs, expenses, injuries, liabilities, losses and damages of every kind and description (hereinafter in this paragraph referred to as ‘claims’), resulting from or arising out of this performance of this Agreement by [Ms.] Taylor. Claims to which this indemnification applies include, but without limitation, the following: ... [c]laims arising out of a libelous or other unlawful matter used or developed in connection with this Agreement”; 8) Ms. Taylor shall “keep in force a liability policy, which policy includes the activity to be covered by this Agreement with adequate liability coverage to protect itself and [MDOL] from suits”; 9) The contract “contains the entire Agreement of the parties, and neither party shall be bound by any statement or representation not contained therein”; 10) “The artist shall create the work in accordance with the approved design. Recognizing that the shift in scale from model to full scale requires artistic adjustments, the artist reserves the right to make minor changes in the final work as is deemed aesthetically or structurally necessary”; 11) The artwork is described as: Title: Maine Labor Mural Dimensions: One wall: 12' 3/8" x 6' 3/4" Second Wall: 12' 3/8" x 24" Material: Prepared birch panels, grounded and gessoed, painted with oil paint. Description of the Work: 10 panels depicting selected episodes in the history of Maine labor; 12) “The artist has familiarized him/herself with the site and local conditions under which the work is to be installed, and had correlated his/her observations with the contracting agency”; 13) Any changes in design would be addressed as follows: “The artist shall create the work in accordance with the approved design. Recognizing that the shift in scale from model to full scale requires artistic adjustments, the artist reserves the right to make minor changes in the final work as is deemed aesthetically or structurally necessary”; 14) “The permanent location of the work shall be: Department of Labor, Augusta, Maine”; 15) Ms. Taylor was paid $25,000 upon signing the agreement, $25,000 upon completion of half of the work, and $10,000 upon completion and final acceptance of the installed work; 16) The MDOL “shall have the right of entry to the premises where the work is being done and/or where the materials for the work are stored for purposes of inspecting the work and materials”; 17) Ms. Taylor’s status was as follows: Ms. Taylor “agrees to perform all work under this agreement as an independent contractor and not as an agent or employee of the State of Maine”; 18) The MDOL’s right to inspection and review was as follows: The [MDOL] “shall have the right at reasonable times and with advance notice to review the work while in the process of execution and to request and receive progress reports”; 19) Regarding the identification plaque: The [MDOL] “agrees to provide and install an identification plaque for the work. The written contents of the plaque shall include at least the following information: Title of the Art Work: The Maine Labor Mural Cycle; Year: 2007-2008; Artist: Judy Taylor; Commissioned for the Department of Labor and the citizens of Maine under the Percent for Art Act administered by the Maine Arts Commission. The artist shall be consulted as to the design”; 20) Ms. Taylor “warrants that the design of work being commissioned is the original product of her own creative efforts.” Ms. Taylor agrees to deliver the work to the MDOL “free and clear of any liens or claims arising from any source whatsoever”; 21) Ms. Taylor reserves the copyright of the mural to herself and provides that she has the right to control “the making and dissemination of the copies or reproductions” of the mural; however, Ms. Taylor “shall not unreasonably refuse [the MDOL and/or MAC] permission to reproduce the work graphically for purposes strictly for the sole use and benefit of the public. [Ms.] Taylor agrees to give credit substantially in the following form: ‘Originally owned by the Department of Labor and the State of Maine’ in any public showing of reproduction of the work”; 22) The MDOL “agrees that it will not intentionally destroy or alter the work in any way whatsoever without prior consultation with the [MAC] and the artist”; 23) The MDOL “shall make every reasonable effort to consult with the artist and a professional conservator in all matters concerning repairs and restoration of the work”; 24) “The work will be placed in the location for which it was selected. The contracting agency agrees that the artist and the [MAC] will be notified if, for any reason, the work has to be removed or moved to a new location. The artist and the [MAC] have the right to advise and consult with the contracting agency regarding this treatment of the work”; and 25) “Drawings, models, and specifications related to the mural remain the property of [Ms.] Taylor; however, they shall not be used by the artist on other projects or extensions of this project except pursuant to a subsequent agreement between [Ms.] Taylor and the [MDOL].” Stip. ¶ 48; PRSAMF ¶¶ 49-58; DRPRSAMF ¶¶ 49-58. 9. Funding Sources 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. 10. Ms. Taylor’s Completion of the Contract 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. PRSAMF ¶ 59; DRPRSMF ¶ 59. Mr. Scontras served as one of her resources for historical information and answers to factual questions, such as where to find specific information about events she was considering depicting in the mural. Stip. ¶ 50. While creating the mural, Ms. Taylor did not reference and was not guided by the subject matter or themes mentioned in the Call for Artists, which she says was the only guidance she received from the State as to the mural’s content. PRSAMF ¶59; DRPRSMF ¶ 59. No one in the MDOL, the MAC, or any other state agency indicated to Mr. Scontras what ideas he should propose to Ms. Taylor, what the mural should portray, or what viewpoint or message they hoped it would convey. PRSAMF ¶ 60; DRPRSAMF ¶ 60. Ms. Taylor studied Maine’s labor history, and labor history generally, to identify the major themes and events she wanted to depict. Stip. ¶ 51. There were many themes and ideas that she did not use — for instance, except to the extent they were part of the background historical images, she did not depict any railroads, ships, lobstermen, ice harvesting, blueberry picking, or many other subjects which are often seen as typical or emblematic of Maine’s labor history. PRSAMF ¶ 61; DRPRSAMF ¶61. The Call for Artists states that some of these themes would be welcome. Id. Mr. Scontras suggested some themes to Ms. Taylor that she might want to illustrate in the mural and Ms. Taylor accepted some of his suggestions and rejected others. Stip. ¶ 52. For instance, Mr. Scontras thought that the first labor party in Maine in 1831 and the first labor newspaper in the same year would be an interesting panel. PRSAMF ¶ 62A; DRPRSAMF ¶ 62A. He also thought the Richmond Island strike in 1636, the International Fisherman’s Union created by Maine lobster-men in the early 1900s, and agricultural labor in Maine would be interesting subjects for panels. Id. Ms. Taylor did not use these ideas. Id. According to Mr. Scontras, she was clearly constrained by consideration of space limitations. Id. No one at the MDOL gave Ms. Taylor any feedback, instruction, or suggestions as to how she should portray the history of Maine labor, nor did anyone at the MDOL comment on whether what she had done was in fact consistent with the views of the MDOL, or the state of Maine, concerning the history of Maine labor. PRSAMF ¶ 63; DRPRSAMF ¶ 63. During the eleven months between the award of the commission and the actual installation of the mural, the Contract Administrator, Jane Gilbert of the MDOL, came to Ms. Taylor’s studio in Seal Cove twice to look at the work in progress and on one occasion, Ms. Gilbert was accompanied by Commissioner Laura Fortman. Stip. ¶ 53. Neither Ms. Gilbert nor Ms. Fortman made any suggestions as to what Ms. Taylor should portray or how she should portray it and simply indicated that they were delighted with her progress. PRSAMF ¶ 65; DRPRSAMF ¶ 65. It was clear to Ms. Taylor from what they said that they respected her imagination and her artistic process. Id. Aside from these two visits, Ms. Taylor had no other communications with anyone from the MDOL, the MAC, or any representative from any other state agency from September 2007 until August 2008 beyond phone and email contact regarding payment schedule and progress updates. Stip. ¶ 54; PRSAMF ¶ 66; DRPRSAMF ¶ 66. No one at the MDOL ever gave Ms. Taylor any feedback, instruction, or suggestions on how to portray the history of Maine labor, nor did anyone at the MDOL comment on whether what she had done was, in fact, consistent with the views of the MDOL or the State on the history of Maine labor. PRSAMF ¶ 67; DRPRSAMF ¶ 67. 11. The Location of the Mural 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. DSMF ¶ 63A; PRDSMF ¶ 63A. The anteroom sign reads: Maine Department of Labor Commissioner of Labor Employment Service Rehabilitative Service Labor Standards (Safety Works) Unemployment Compensation Administrative Hearings Center for Workforce Research and Information 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 177B; PRDSMF ¶776. The MDOL had chosen and placed material located in other parts of their offices where there is limited access to the public — such as interior corridors and offices where the public is allowed only if accompanied by staff — and these include framed pictures/biographies of people who had conference rooms named after them, framed recent photographs of Mainers at work taken by an intern, framed artwork created by individuals with disabilities, historical photographs of people at work, three framed works of art — two depicting people at work in the early 20th century and the third of a group of striking shoe workers, and pictures of former Bureau of Labor Standards directors. Stip. ¶ 78; DSMF ¶ 78A; PRDSMF ¶ 78A. 12. The Eleven Panels of the Labor History Mural 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. Id. 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. a. Panel One: The Shoemaker and His Apprentice 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 foreground, she placed a tribute to Mr. Scontras. Id. He is depicted as a shoemaker on this panel with his name prominently displayed. DSMF ¶ 75C; PRDSMF ¶ 75C. b. Panel Two: Child Labor 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. Id. c. Panel Three: Textile Workers 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. d. Panel Four: Secret Ballot The fourth panel depicts the secret ballot. PRSAMF ¶ 74; DRPRSAMF ¶74. Ms. Taylor did not intend this panel to refer specifically to organized labor but to the broader question of the effort to extend the right to vote to all citizens. Id. Ms. Taylor got some of the images for this panel from archive images of an Irish settlement town in Portland. Id. She created a visual of a man putting ballots into a ballot box. Id. The ballot box was representative of ballot boxes used during that time. Id. Ms. Taylor did not portray whether or not this was an election for public office or an election related to a union; that did not matter and no one ever questioned her about what she was depicting. Id. e. Panel Five: Labor Day 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. f. Panel Six: Woods Workers 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. g. Panel Seven: 1937 Shoe Workers Strike 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. h. Panel Eight: Frances Perkins 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. i. Panel Nine: World War II Shipyard 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. j. Panel Ten: 1987 International Paper Strike 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 picketers holding hands. Id. Ms. Taylor chose to illustrate picketers holding hands in the foreground and included old and young people together to illustrate the idea of community. Id. Some of the people in the background include Roland Samson, a leader in the strike, and Jesse Jackson, who came to Maine to speak in support of the strikers. Id. It was solely Ms. Taylor’s decision to portray the strike. Id. k. Panel Eleven: Future of Maine Labor 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. 13. The Installation, Unveiling, and Display of the Mural 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: Judy Taylor History of Maine Labor Oil Paint Mural, Eleven Panels 2008 Commissioned for the Department of Labor and Administered by the Maine Arts Commission “building Maine communities through the arts” Stip. ¶ 73; PRSAMF ¶ 84; DRPRSAMF ¶ 84. The plaque, as installed, did not include the contract’s reference to “Percent for Art” because this was not a “Percent for Art” project. DSMF ¶ 48.T.1; PRDSMF ¶ 48.T.1. 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. PRSAMF ¶ 85A; DRPRSAMF ¶85A. The MDOL prepared and approved the pamphlet describing the mural and made it available to the public in the anteroom or otherwise by request. DSMF ¶ 75A; PRDSMF ¶ 75A. Following Ms. Taylor’s creation of the mural, it was displayed in the anteroom of the MDOL offices in Augusta; the anteroom is open to the general public. PRSAMF ¶ 87; DRPRSAMF ¶ 87. After the installation of the mural, Ms. Taylor sent in her bill for the final payment of $10,000, which was accepted and paid, in August of 2008. Stip. ¶ 70. 14. The Proposed Removal of the Mural and the Governor’s Explanation 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 pro-labor 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.” PRSAMF ¶ 90; DRPRSAMF ¶ 90. Governor LePage had not seen the mural in person. Stip. ¶ 89. 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. Id. Ms. Taylor does not recall whether she actually spoke to Mr. Fisher or whether he left a voice message but is certain that at no time did she assent expressly or implicitly to the removal of the mural; rather, the removal was presented to her as a fait accompli. Id. 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: We have received feedback that the administration building is not perceived as equally receptive to both businesses and workers — primarily because of the nature of the mural in the lobby and the names of our conference rooms. If either of our two constituencies perceives that they are not welcome in our administration building and this translates [to] a belief that their needs will not be heard or met by this department, then it presents a barrier to achieving our mission. I will be seeking a new home for the mural and we will be renaming the conference rooms.... 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. PRSAMF ¶ 96; DRPRSAMF ¶ 96. On or about March 24, 2011, Ms. Bennett further stated that “the [MDOL] is a State agency that works very closely with both employees and employers, and we need to have a décor that represents neutrality.” PRSAMF ¶ 97; DRPRSAMF ¶ 97. On March 25, 2011, Governor LePage released the following statement in a press release: Without workers and employers, we do not have an economy. Maine’s Department of Labor needs to serve and balance the interests of both employees and employers to accomplish its mission. I encourage anyone with artwork that celebrates the cooperation that exists in Maine’s workplaces to consider offering it for display at any Department of Labor or Career Center Location. I appreciate the effort and talent Ms. Taylor devoted to the creation of her mural as well as the important history it represents. I am pleased that her work of art will be prominently displayed in Portland City Hall, the site of Maine’s first State House. Stip. ¶ 87. In the same press release, Governor LePage stated that he: is asking for artwork that depicts the cooperative relationship that exists between Maine’s job creators and the workers who power Maine’s economy. Artists interested in participating should be willing to offer their artwork on loan to the State. Appropriate submissions will be displayed in public places at the [MDOL]’s Administrative offices and in the lobbies of Career Centers throughout Maine. Stip. ¶ 88. Governor LePage ordered removal of the mural from display at the MDOL based on the complaints he had received and on Ms own perception that the mural was a one-sided portrayal of labor history not acceptable to business interests. PRSAMF ¶ 100; DRPRSAMF ¶ 100. 15. Attorney Beal Intervenes 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.” PRSAMF ¶ 101A; DRPRSAMF ¶ 101 A. Neither Director Phillips nor Deputy Director McDonald had any role in the removal of the mural; they learned that the mural had been removed at the same time as the information was made available to the general public. DSMF ¶ 105A; PRDSMF ¶ 105A. 16. The Mural Is Removed 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. DSMF ¶ 90A; PRDSMF ¶ 90A. Several demonstrators were reported to have threatened to form a human chain to prevent the administration from taking down the mural. DSMF ¶ 90B; PRDSMF ¶ 90B. In view of the public safety concerns raised by the demonstration and the reported threat, the mural was removed from the anteroom on Sunday, March 27, 2011. Stip. ¶ 91; DSMF ¶ 91 A; PRDSMF ¶ 91A. 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. Stip. ¶ 110; PRSAMF ¶ 103; DRPRSAMF ¶ 103. Neither Mr. Phillips nor any person associated with the Maine State Museum supervised, observed, or directed the removal of the mural or otherwise assured its safe handling and storage. PRSAMF ¶ 104; DRPRSAMF ¶ 104. Although several ideas have been expressed regarding hanging the mural elsewhere, those are now on hold pending the outcome of this litigation. Stip. ¶ 94. 17. After the Removal On March 28, 2011, Adrienne Bennett issued a press release stating: The mural has been removed and is in storage awaiting relocation to a more appropriate venue. Workers and employers need to work together to create opportunity for Maine’s 50,000 unemployed. We understand that not everyone agrees with this decision, but the [MDOL] has to be focused on the job at hand. Stip. ¶ 92; PRSAMF ¶ 105; DRPRSAMF ¶ 105. Governor LePage stated on a radio program: I’m trying to send a message to everyone in the state that the state of Maine looks at employees and employers equally, neutrally and on balance. The mural sends a message that we’re one-sided, and I don’t want to send that message. 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. Id. Deputy Director McDonald’s letter disagreed with Attorney Beal’s contention that the Museum is responsible for the mural, stating: The Maine State Museum’s long-held view of the statutory language limits museum responsibility to older paintings, not contemporary paintings depicting historical events. To our knowledge, your interpretation of the law has no precedence. 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 being stored. Stip. ¶ 106; PRSAMF ¶ 107; DRPRSAMF ¶ 107. Ms. McDonald responded to Attorney Beal’s second letter by email that same day. Stip. ¶ 108. On behalf of Director Phillips and the Museum, she wrote: Regarding the questions that you asked in your letter dated 28 March 2011, Museum staff were not involved at all in the mural’s removal and we do not know the mural’s present location. It is not here at the Museum. PRSAMF ¶ 108; DRPRSAMF ¶ 108; DSMF ¶ 109A; PRDSMF H109A. 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. 18. Ms. Taylor Seeks Access 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. PRSAMF ¶ 112; DRPRSAMF ¶ 112. 19. Maine’s Percent for Art Program 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 facilities, must spend at least 1% of any funds allocated by the Legislature to acquire, transport, and install works of art. Stip. ¶ 111. Schools must spend 1% or $50,000, whichever is less. Id. The MAC administers the program. PRSAMF ¶ 113; DRPRSAMF ¶ 113. As a result of the Percent for Art Program, thousands of pieces of art have been installed in public buildings throughout Maine. Stip. ¶ 112. The “Public Arts Program” is summarized at http://mainearts.maine.gov/program_ publicarts.aspx. Stip. ¶ 114. Since May 1, 2007, three art projects have been funded through Maine’s “Public Arts Program,” not using Percent for Art program funds: this mural, and art for the Alfond Center and the Harry Faust Foundation. Stip. ¶ 116. 20. The Views of Professors Christina Bechstein and Lauren Fensterstock a. The Professors 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. PRSAMF ¶ 116; DRPRSAMF ¶ 116. According to Professors Bechstein and Fensterstock, Professor Bechstein is recognized as an authority in the field of public art. Id. Based on her education and experience, Professor Bechstein states that she is well-qualified to testify concerning the role of public art in Maine, the role of the MAC and Percent for Art program in shaping an understanding of public art among the arts community and the general public, and the likely effects of possible changes in that understanding. Id. Lauren Fensterstock, another Maine artist, is employed as a Professor at the Maine College of Art in Portland, is familiar with the MAC and public arts programs in Maine, and has served on MAC advisory committees to select artists to create public art. PRSAMF ¶ 117; DRPRSAMF ¶ 117. b. Art in Public Places, the Maine Arts Commission, and the Maine Percent for Art Program 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. Judy Taylor says that her approach to developing art in public places is to express her own artistic ideas and not to try to express aesthetic ideas of the contracting agency. Id. Professors Bechstein and Fensterstock say that this is the same approach taken by the MAC and the State. Id. Professor Fensterstock states that the Call for Artists and the Public Art Notification issued in this case would let members of the public know that the mural was a public arts project and that Percent for Art criteria and procedures were employed in the selection decision. PRSAMF ¶ 117; DRPRSAMF ¶ 117. 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 pr