Burlington City Council Votes to Remove Controversial Mural
The Burlington City Council voted to take down a mural in response to public pressure. Is this a violation of the First Amendment? Plus, do state governments have the power to infringe on businesses and personal freedoms to protect public health? Attorney Paul Harding of Martin, Harding & Mazzotti, LLP is on the radio with WVMT discussing the these issues.
Please give it a listen or read the transcript below.
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Interviewer: We’re talking with Paul Harding, a partner at Martin, Harding & Mazzotti. We appreciate his insight. And so, Paul, this week we’ve been talking about the Burlington City Council, they, this week made a decision to take down a piece of artwork based on some public pressure. I would not say from a majority of the public, but regardless, it’s art and art to me is an expression of our First Amendment. There hasn’t been a lot of legal challenges that I’m aware of in regard to art and how art is perceived or whether or not it should be viewed by the public and so forth.
Paul: Yeah. So, that is, you know, we were reading about that and looking at that and, you know, I guess this thing is, you know, I’ve seen it and always stop when you walk near it, or not too, right. There’s a lot happening there. And now, the question is it’s coming down early. It was gonna come down at some point in the next 18 months or something. Yeah. So, we’ve gotta…you know, we look at this and we say from the First Amendment perspective, you know, we can do all this stuff. The question is as it is displayed, and, you know, we’ve gotten some degree of push back, you know, sort of this thing doesn’t necessarily depict the Burlington of 2020, you know, there’s, sort of, lack of diversity in the picture and some of the things that maybe some folks feel, you know, are offensive.
So, the neat part about this is, is that, you know, again, we live in this country where we’re able to have opinions and we’re able to say, “We like it, we don’t like it.” And we get to share that. And I mean, it really is, it goes to the fabric of why we call ourselves, sort of, this nation of these people who get to run their own country. Although there’s a lot of debate around that, you know, as we enter into, you know, we talk about this pandemic, which has limited rights, but, so, the council has decided to take it down. You know, we voted those folks in, and if we don’t like their decision, you know, we can always vote them out. So, at this point, it looks like it’s coming down and they say they’re gonna put it up someplace else. Not sure where. I don’t know if any of you guys have a big backyard or something you want to volunteer to have that. It would be nice. Maybe you’ve got to check with your neighbors though.
Interviewer: Won’t fit in my backyard. I know that. But also, we had a number of our listeners who contacted us and said they’ll one day even consider starting a legal defense fund to, kinda, save the mural type thing. What kind of rights are there in regard to that, without knowing all the details of this case?
Paul: Yeah. So, yeah, they could actually do that. You know, public pressure is one thing. You know, public pressure appears to be what’s having this thing removed early, and public pressure could be what could get it, you know, get this action stayed, but through the courts. You know, the courts come in and say, “We’re going, again, through a First Amendment argument. We’ll have a speech through…” I don’t know what the contract was. If the artist had a contract through a certain amount of time, you know. So, is there a contract being violated here? Well, yeah, sure. You know, they could get it, try to push that through, and at least get an injunction, which is a formal, sorta, legal way of saying, “Okay, guys, let’s stop doing. Let’s start thinking and talking, but we’re not gonna do anything right now.” And really probably if they were to get that, it probably extends until the time when this thing was gonna be taken down anyway.
Interviewer: This is being done at a time where we’re looking at still being in the midst of this pandemic and the repercussions of that pandemic. One part of us is saying this is not the priority. The priority is other things that we need to deal with in regards to this pandemic, like opening up these retailers and getting them opened up safely. Wisconsin has already gotten it through their Supreme Court. There are challenges now happening and I think that’s because of pent up frustration that governors don’t have the power to do what they’ve been doing to try to protect public health.
Paul: Yeah. If you want to see that frustration, just go get gas or just walk into CVS [SP], right? Just walk around and you can feel it, you know. Someone has their mask on, someone doesn’t, they’re exchanging words, there’s tension. So, the question is, yeah, I mean, have these governors just gone a little too far, or have they pushed it beyond what their authority is? We saw in Wisconsin this week the Supreme Court there said, “Yeah, Governor, you can’t issue this shelter-in-place order. It’s in violation of the constitution.” So, that stayed, sort of, up in the air. What are they doing? You know, we know that the public health authority that the governor has to keep us safe, but has it gone too far, right? So, those are the debates going on. So, I think we’re frustrated anyway that we feel kinda being told what to do and we’re just not used to that in this country. We’re used to, you know, having rules, of course, but really just having so much freedom. So, when we’re told you can’t drive here, you can’t walk in here unless you got this and you got to have this temperature tested, and all the things that are coming, I think there’s a general sense of push back. I mean, I can, kinda, almost feel it myself, you know. I get how important it is, but just the fact that someone is telling you, I’m still 12 years old, the fact that someone’s telling me what to do, I can see myself just, kinda, feeling it a little bit, a little pushback. And so, here I think there’s a, you know, with this mural, and it comes full circle, I think it’s something that people say, “Wait, this is the stuff that we…this is a gift we do have. We have the ability to, just because they’re telling us it’s coming down, maybe we can do something to stop it.” And so, it brings back some of those fundamental rights that we are blessed to have here, you know, in our country, and certainly, Vermonters, they’re at the forefront of that.
Interviewer: So, with the powers that governors have, as we’ve had some of it questioned, the powers that they use under emergency powers when they declare a state of emergency, it’s probably not a slam dunk, is it, by the courts. I think it was a split decision in Wisconsin though, the majority voted that way because people think they don’t have the power to do it. It’s against the constitution. But they do have some…it’s probably not a slam dunk as to what their emergency powers are able to do.
Paul: You know, we all expect, you know, there’s a flood coming, and a tornado, and there’s some, you know, we’re being attacked and, we always look at it under those emergency powers. Like, we don’t have time to get any legislation going. We need someone to…we elected someone to just say, “Now, we’re gonna do this.” So we need a leader, we need a captain on the team. Someone who…and the question is this, is this going on too long? So, it’ll be probably scaling. It’s like, okay, I get it. Feels like the emergency part of emergency is not there. Meaning we have time where we could have conversations and legislatures can meet and pass laws, governor, time for you to, kinda, step aside maybe, and, you know…and which again, that’s the feeling. That’s the feeling I think that’s out there that people feel their elected representatives are not really pushing the agenda. It’s their elected person, their governor who is, you know, well-liked in good intention, but is it going too far? Yeah, that’s a conversation. If you could ever get to a coffee shop and you wanna start, it would be spirited.
Interviewer: We appreciate the insight of Paul Harding of Harding, Martin & Mazzotti. You can get more information, ask questions of them. They are your resource at 1800law1010.com.