The controversial website that aimed to help to defeat Eliot Cutler in Maine’s 2010 race for governor was constitutionally protected political speech, according to arguments filed Thursday in federal court.

In fact, the filing says, the political consultant who anonymously posted The Cutler Files was following in the tradition of Thomas Jefferson and James Madison.

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

The state ethics commission fined Bailey because he was working for a rival candidate at the time and, it says, should have identified himself as the person behind the website.

The case highlights the conflict between the right to anonymous political speech and the public’s right to know who is manipulating opinion in an election. It also has opened a window into the hard-fought governor’s race, which Cutler, an independent, lost narrowly to Republican Paul LePage.

An assistant attorney general representing the Maine Commission on Governmental Ethics and Election Practices filed arguments Thursday defending the fine. The commission, and voters, need to know who is 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.

Cutler is an intervenor in the legal dispute. On Wednesday, his attorney filed arguments, as well as sworn statements and email conversations, saying the website grew out of the opposition research done by Rosa Scarcelli’s campaign when Scarcelli was a candidate in the Democratic primary.

Bailey was a consultant to Scarcelli until she lost the primary in June 2010, then 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 says in an affidavit filed in court Thursday.

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

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

Bailey and others spent a little more than $90 to produce the website. His attorneys argue 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 a 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 argue in their filing.

One of Bailey’s lawyers is Zach Heiden, an attorney with the American Civil Liberties Union of Maine. 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, argues in her filing that journalism organizations are exempt from Maine’s campaign finance disclosure laws but The Cutler Files did not qualify.

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

“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 says.

Gardiner’s filing also takes issue with Bailey’s statement that the longtime 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.

The parties in the case have about five weeks to file responses and answers. The judge is expected to rule on the legal arguments in the next several months.

The Portland Press Herald attempted to intervene in the case in November, to argue that the public be given access to documents and emails subpoenaed by the attorneys, as well as other statements that had been under seal.

A federal judge rejected the bid, saying she had already ruled that relevant documents would be made public. That information now appears to be part of the public court docket.

MaineToday Media State House Writer John Richardson can be contacted at 620-7016 or at:

[email protected]


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