October 1, 2012

Judge sides with state in 'Cutler Files' case

By Steve Mistler smistler@pressherald.com
Staff Writer

A federal judge ruled Monday that the anonymous website that criticized 2010 gubernatorial candidate Eliot Cutler was not journalism, but political advocacy subject to Maine's campaign disclosure laws.

click image to enlarge

Former Maine gubernatorial candidate Eliiot Cutler, left, and Dennis Bailey.

U.S. District Judge Nancy Torresen sided with the Maine Commission on Governmental Ethics and Election Practices, which last year fined political consultant Dennis Bailey for his role in the creation of the Cutler Files. Bailey later sued the commission, claiming that the site should have the same protections as news organizations under the First Amendment.

In a 37-page decision, Torresen disagreed, saying the website did not qualify as journalism because it was designed to advocate for Cutler's defeat. Torresen said Bailey's claim that he was a "citizen journalist" was unfounded.

The ethics commission ruled that Bailey should have disclosed his involvement with the website because the site was no different from a campaign flier that urged the public to vote against Cutler.

"For election advocacy, the balance between the state's informational interest in attribution and a speaker's right to remain anonymous tips in the speaker's favor when a speaker can show that remaining anonymous is necessary to protect him from threats, harassment and reprisals," Torresen wrote. "The balance does not tip in favor of a high-profile political actor who wishes, on the eve of an election, to criticize a gubernatorial candidate anonymously."

Torresen dismissed Bailey's claim that the Cutler Files was journalism because he was a consultant for two other candidates in the 2010 election. She wrote that "given his association with the other campaigns, it can hardly be said that Bailey acted independently."

Torresen noted that Bailey worked with Thom Rhoades on the website. Rhoades is the husband of Rosa Scarcelli, a candidate for governor who hired Bailey for the 2010 Democratic primary.

After Scarcelli lost in the primary, Bailey worked for independent candidate Shawn Moody.

The website was active in 2010 from about Aug. 30 through the election on Nov. 2.

Noting that the Cutler Files got 46,989 page views in that time, Torreson wrote that Bailey's message was "heard far and wide."

"The State's interest in an informed electorate is near its zenith where a widely-viewed website falsely claiming to be written by journalists unaffiliated with any campaign expressly advocates the defeat of an opposing candidate shortly before a statewide election," she wrote.

The ethics commission began investigating the Cutler Files after Cutler filed a complaint. The commission discovered that Bailey was the creator of the site and that he collaborated with Rhoades.

The commissioned fined Bailey $200 for failing to identify himself as the person who paid for the website. Bailey filed a lawsuit against the ethics panel that claimed he had a constitutional right to publish the Cutler Files anonymously.

Last month in U.S. District Court in Portland, Zachary Heiden argued on Bailey's behalf in a hearing on both parties' motions for summary judgment.

Heiden, legal director of the American Civil Liberties Union of Maine, argued that protection of anonymous speech about candidates for office lies at the heart of the First Amendment and is part of a long tradition.

"The fact that someone has a day job in politics doesn't mean they give up their First Amendment rights," said Heiden.

He argued that the law hasn't kept pace with new technology. Blogs and other websites, he said, deserve the same protection as traditional media.

(Continued on page 2)

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