PORTLAND, Maine — An attorney representing political consultant Dennis Bailey told a federal judge Friday that his client, who posted an anonymous website criticizing then-gubernatorial candidate Eliot Cutler just weeks before the 2010 election, should have been afforded the same campaign finance exemptions enjoyed by newspapers and television stations.
Assistant Attorney General Phyllis Gardiner — representing the Maine Ethics Commission, which fined Bailey $200 over the site titled “The Cutler Files” — countered in part that because Bailey was being paid as a campaign adviser by two of Cutler’s opponents, the Web publication couldn’t be considered a traditional third-party media outlet.
Gardiner and Zachary Heiden, legal director for the American Civil Liberties Union of Maine in addition to his role representing Bailey, both argued to U.S. District Court Judge Nancy Torresen that ruling against their respective clients would set a dangerous precedent.
Heiden suggested that, because the Internet isn’t explicitly named in the Maine statute exempting newspapers and broadcasters from campaign finance rules, allowing Bailey to be penalized for his website would open the door for the commission to similarly fine the websites associated with traditional outlets where commentaries critical of a given candidate are published.
“It’s a new world,” Heiden told Torresen. “The laws have to keep up with this, and the laws haven’t. The law has to provide new media the same exemptions provided to traditional media.
“This was not campaign material he was publishing,” he later added. “It was news, editorial and commentary.”
Gardiner responded that the commission’s decision to fine Bailey had nothing to do with the fact that the information was published online. Rather, she said, the commission decided to penalize Bailey because he was publishing the information anonymously while he was a paid consultant for opponents of Cutler.
She also argued that the site did not qualify legally as a periodical, because it did not establish a regular pattern of publication — it was launched just before Election Day and ceased publication after the election.
Gardiner said ruling against the commission could pave the way for anonymous websites to be launched to attack candidates before any election, without providing the public the attribution necessary to gauge whether the publisher has a biased agenda.
“Mr. Bailey’s reasons for remaining anonymous here are the very same reasons the public has a right to know,” she told Torresen.
“This is a case about the public’s right to know who’s spending money to influence votes in a candidate election,” Gardiner added. “A press entity engaged in campaign activity doesn’t get the exemption provided to press entities.”
Neither Bailey nor Cutler was present in the courtroom Friday for oral arguments.
Representing case intervenor Cutler, who as an independent lost a close election to Republican Paul LePage in 2010, in court Friday was attorney Melissa Hewey. In her comments to Torresen, Hewey joined Gardiner in highlighting Bailey’s connections to independent candidate Scott Moody and Democrat Rosa Scarcelli, who placed third in her party primary several months before the site was put up.
“This website was published by somebody with his fingers in the Scarcelli campaign, with his fingers in the Moody campaign, and who didn’t want the people involved to be implicated,” Hewey said.
Torresen told the attorneys present she would not give them an estimated time for her ruling in the case.
Political Free Speech is a good thing. Judges and lawmakers restricting political Free Speech is a bad thing.
Political speech is not restricted. It just has rules about transparency to help voters see conflicts of interest.
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The complaint is not saying they could not post all of their facts and fantasies it just says they had to meet disclosure laws for political advertising.
Basically they police “free speech”. How does that make it free speech?
Speech paid for by a politician is not “free” speech, it’s propaganda.
The Supreme Court has ruled that political speech deserves the highest form of protection. This includes the publishing of commentaries, opinions, and articles anonymously. So far I haven’t seen much evidence that Bailey was paid by any candidate to create the website, only that he did it on his own volition. In this case, there’s little question that he enjoys the same right to publish anonymously as anybody else. But I would also argue that even if he was paid to publish the website, there is still a right to do it anonymously. Are we so dumb that we can’t check out whether the claims in any publication about a political candidate are true? That’s what really matters, not who paid for it.
True!
Free Speech is a good thing!
However !
Propaganda will be afforded to all those who may listen!
The American Political System needs a strong dose of “Truth Serum’ !
Good lord, you finally said something that makes sense.
That goes for “Both” Sides!
Google – burst dam Georgia Eliot Cutler – and download the Cutler Files PDF. Decide for yourself.
If you are writing and speaking the truth, relaying fact not opinion, then motive, intent and political affiliation should not come into play whether or not the subject is a candidate for office, whether or not it is within a given period relative to election day.
No court no law should ever supercede or suppress the truth.
I saw some of the content of the “Cutler Files” a while back and y recollection is that what I saw was a factual and accurate account of specific events in which Cutler had been involved. It didn’t, as a paper of record should do, report the “other side” or include anything cutler had to say about what was reported..but I am not so sure this standard should apply to citizen journalists.
If he was paid by Cutler’s opponents, that is politics, not journalism, and it should have been disclosed. Otherwise, you’re opening the door for politicians and, subsequently, the government to control the media and we all know what that leads to.
Yes. The Portland Press Herald.
It’s still speech, though. The news media have no more rights than the homeless man on the street corner.
Incorrect, which is why a judge is reviewing this.