AUGUSTA — A controversial website aimed at helping to defeat Eliot Cutler in the 2010 race for governor was constitutionally protected political speech, according to arguments filed in federal court Thursday.

And the political consultant who anonymously posted The Cutler Files was only following in the tradition of Thomas Jefferson and James Madison, according to the filing by consultant Dennis Bailey’s attorneys.

“There is a long tradition of anonymous and pseudonymous journalism dating back to the founding era, and it is a vital part of our nation’s history,” it says.

Attorneys for Bailey submitted the written arguments to U.S. District Court in Portland as part of their effort to overturn a $200 fine against Bailey that they say will chill free speech.

The Maine Commission on Governmental Ethics and Election Practices imposed the fine because Bailey was working for a rival candidate at the time and, it said, should have identified himself as the person behind the website.

An assistant attorney general representing the commission filed arguments defending the fine Thursday. The commission, and voters, need to know who paying for campaigns, it says.

“As a practical matter, allowing any individual or organization — let alone a paid political consultant, working for an opposing candidate in the same election — to anonymously advocate for or against a candidate would undermine the commission’s ability to enforce Maine’s campaign finance laws,” the commission’s filing says.

The case of The Cutler Files highlights the conflict between the right to anonymous political speech and the public’s right to know who is manipulating opinion during an election.

It also has opened a window into the hard fought 2010 governor’s race, which Cutler, an independent, lost to Republican Gov. Paul LePage.

On Wednesday, Cutler’s attorney filed arguments, as well as sworn statements and email conversations, saying the website grew out of the opposition research done by the Rosa Scarcelli campaign when Scarcelli was a candidate in the Democratic primary. Bailey was a consultant to Scarcelli until she lost the primary, when he went to work for independent candidate Shawn Moody.

“Neither Rosa Scarcelli nor Shawn Moody ever authorized me to create The Cutler Files website or to post the Eliot Cutler research to the website,” Bailey said in an affadavit filed in court Thursday.

Bailey said he created the website because he felt negative information about Cutler was being ignored by the media.

He said he wanted to be anonymous, in part, because he feared retaliation. And, he said, after his role was identified he received anonymous threatening phone calls. “The situation became so uncomfortable and intolerable that my secretary quit,” he said.

Bailey and others spent a little more than $90 to produce the website. However, his attorneys argued that the expense should not be subject to state campaign disclosure laws because he was acting as a journalist and simply using the Internet instead of newspaper or television station.

“Those who publish news stories, editorials and commentary on mainstream television, radio, newsprint or magazine stock are subject to one set of rules, while private individuals, ‘citizen journalists,’ like Bailey who publish on the Internet … are subject to a much more burdensome set of rules. There is no adequate justification for this discrepancy,” Bailey’s lawyers argued in their filing.

One of Bailey’s lawyers is Zach Heiden, an attorney with the Maine Civil Liberties Union. The arguments focus on the constitutional right to free speech, whether it’s anonymous or not.

The lawyer for the ethics commission, Assistant Attorney General Phyllis Gardiner, argued in her filing that journalism organizations are exempt from Maine’s campaign finance disclsure laws, but that The Cutler Files did not qualify.

Along with the fact that Bailey was employed by a rival candidate, the website was only posted during the last few months of the campaign and it had no other purpose but to advocate for the defeat of Cutler, Gardiner argued.

“The commission expressly found the statement on the website — ‘We are a group of researchers, writers and journalists … not affiliated with any candidate’ — to be misleading to the public,” the filing said.

Gardiner’s filing also took issue with Bailey’s statement that the long-time political consultant wanted anonymity because he feared retaliation.

“The record does not establish a reasonable probability that Bailey would have received threats, or been subject to harassment or reprisal, had he complied with the attribution requirement in the first instance,” it says.

John Richardson — 620-7016

jrichardson@mainetoday.com

 

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