MCLU files suit over ‘Cutler Files,’ challenging Maine election regulations

Posted March 10, 2011, at 5:17 p.m.

PORTLAND, Maine — The Maine Civil Liberties Union filed a lawsuit on Thursday challenging state election rules on behalf of one of the creators of a political website that took aim at a candidate in last fall’s gubernatorial campaign.

The complaint in Cumberland County Superior Court was filed on behalf of Dennis Bailey, a political consultant who was fined $200 by Maine’s election commission for his role in the “Cutler Files,” an anonymous website that was critical of independent Eliot Cutler.

MCLU Legal Director Zachary Heiden said the website was a political blog that would have been exempt from reporting its expenses had it been a newspaper, broadcast station or other media outlet. Heiden also said Maine’s election rules requiring Bailey to disclose his identity were a violation of free speech.

In defending the tradition of  anonymous political speech, Heiden cited “The Federalist Papers,” which were first published in 1787 under the pseudonym “Publius,” rather than under the names of the authors, John Jay, Alexander Hamilton and James Madison.

“James Madison would probably be shocked to discover that anonymous free speech is not protected by the First Amendment since he was the one who wrote it,” noted Heiden. “Sometimes anonymity is the only way someone can freely express themselves, and it needs to be scrupulously protected.”

Ted O’Meara, the manager of Cutler’s 2010 campaign, said the lawsuit came as a surprise, and he thought the “ugly chapter in Maine politics” was over when state elections officials found that Bailey had violated Maine election law by failing to disclose who was behind the site.

“Basically, [Bailey’s] a political consultant who was clearly trying to influence voters to vote against Eliot Cutler,” O’Meara said Thursday. “We felt all along that this thing violated the integrity of Maine’s election laws, and nothing has changed.”

In the 2010 gubernatorial election, Bailey was a consultant to Shawn Moody, an independent candidate. Earlier, Bailey advised Democrat  Rosa Scarcelli, who lost in the Democratic primary.

Scarcelli’s husband, Thom Rhoads, also admitted to providing research for the “Cutler Files.”  Rhoads was not fined by the ethics commission.

Bailey said Thursday his reasons for pursuing the legal action were simple.

“We didn’t do anything wrong,” said Bailey, who defended the veracity of the information on the site, which described Cutler as a “phony” and “fraud” in his professional and political activities. “We put information on a web site that was truthful and  relevant and that people needed to know. That’s all we did, and that’s what I’ve been penalized for.

“We don’t live in Egypt,” Bailey continued. “If we’re going to condemn this kind of stuff, we’re in trouble.  It was just a silly little web site.”

To the Cutler campaign, however, the site was a professionally designed “character assassination.” The site was taken down shortly before the Nov. 2 election. Cutler lost to Republican Paul LePage by less than 2 percent.

O’Meara said he hoped court would uphold the ethics commission’s findings.

“I think it’s for the lawyers to decide now,” O’Meara said. “But that said, I think it’s ridiculous.”

BDN writer Jeff Tuttle and the Associated Press contributed to this report.

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