Friday, December 13, 2013
AUGUSTA - The state ethics commission should drop an investigation into a website that targets independent Eliot Cutler -- and into whether the authors should reveal their identities -- because state disclosure laws are unconstitutional, an attorney for the Cutler Files said Thursday.
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Daniel Billings, a Waterville attorney who represents the website, said the U.S. Supreme Court has ruled that anonymous speech is protected by the First Amendment. He said Maine law is too broad and "effectively makes anonymous political speech illegal."
The commission launched an investigation into the website earlier this month after Cutler's campaign complained that the site violated Maine law by not listing the name and address of the person who made or authorized money spent to oppose his candidacy.
On Thursday, commission Executive Director Jonathan Wayne asked for more guidance from the five-member panel on whether the investigation should proceed. Wayne said he had not had adequate time to research whether Maine law runs afoul of the Constitution and asked for at least another week to look into the matter.
But Richard Spencer, an attorney for Cutler, said with just over 30 days until the election, time is of the essence. He said there's no doubt that the site expressly advocates for the defeat of Cutler, so the authors must identify themselves.
"This is a website dedicated to character assassination of a particular person," Spencer said.
Billings compared it to other Maine political blogs and websites that allow visitors to post anonymous comments. He said Cutler Files is a form of "citizen journalism" and therefore should be protected as free speech.
The law already allows those who feel they've been defamed to sue the creator of the material, so Cutler could opt to do that if he feels any of the information is inaccurate, Billings said.
The cost to create and maintain the site is minimal -- just over $30 -- and the authors have made no attempt to draw visitors to their site with paid advertising, he said. The day before the Kennebec Journal had a story about Cutler's call for an investigation, site traffic was just 385 hits, he said. The day the story was in the paper, the site got 5,774 hits, he said.
"It is interesting that Mr. Cutler has done more to promote the website than anyone involved with the website," Billings said.
Spencer dismissed Billings' arguments, saying the site is different from other types of political sites that encourage discussion from one political perspective.
"This site is not a blog," he said. "The URL of the site is Cutler Files. It's a political attack on Eliot Cutler."
He said he believes the material on the site -- which he said comes to 30 pages when printed -- was gathered by a professional opposition researcher who was paid thousands of dollars to collect it. He even speculated that one of the failed candidates from the June primary may be behind the information.
Among other topics, the site covers Cutler's time as an attorney in China, his work in Washington, D.C., and his involvement as a board member with Thornburg Mortgage, a company that went bankrupt in 2009.
Under a "who we are" heading, the site says:
"We are a group of researchers, writers and journalists who are frustrated that Maine's mainstream media is either unwilling or incapable of adequately investigating the backgrounds of candidates for higher office."
Spencer said it wasn't done by amateurs.
"This is not some 19-year-old blogger," he said. "It's a political hatchet job the likes of which I have never seen."
In a memo to the commission, Wayne said his investigation so far has revealed that information was gathered in the spring or earlier and that the researcher "has received assistance from at least one other person."
"After the June 8, 2010, primary election, the researcher has tried to disseminate the information concerning Mr. Cutler to the public, and established the Cutler Files website in Augusta as the vehicle," he wrote.
Last week, the Kennebec Journal contacted someone affiliated with Cutler Files to request an interview. In an e-mail response, someone who said he or she prefers to be called "Publius" -- the name used by the anonymous authors of The Federalist Papers -- said the site is no different than anonymous comments posted at the end of newspaper stories or on Facebook pages.
"Because there has been virtually no expenditure of money to produce this website, and it is being done by individuals who are acting independent of any political candidate or party, it is no different than any other Facebook page, blog, website or anonymous posting permitted by your own newspaper, all of which don't require the stamp of approval from state government," the person wrote.
MaineToday Media State House Writer Susan Cover can be contacted at 620-7015 or at: