Federal judge must decide whether ‘Cutler Files’ was a journalism site or a campaign site

Posted Sept. 21, 2012, at 1:51 p.m.
Zachary Heiden, legal director of the American Civil Liberties Union of Maine and attorney representing political consultant Dennis Bailey, addresses reporters outside the federal courthouse Friday, Sept. 21, 2012, after a hearing before U.S. District Court Judge Nancy Torresen. Bailey is challenging a penalty assessed to him by the Maine Ethics Commission.
Zachary Heiden, legal director of the American Civil Liberties Union of Maine and attorney representing political consultant Dennis Bailey, addresses reporters outside the federal courthouse Friday, Sept. 21, 2012, after a hearing before U.S. District Court Judge Nancy Torresen. Bailey is challenging a penalty assessed to him by the Maine Ethics Commission. Buy Photo
Maine Assistant Attorney General Phyllis Gardiner fields questions from the media Friday, Sept. 21, 2012, after leaving the federal courthouse in Portland. Gardiner is representing the state Ethics Commission in its legal battle with political consultant Dennis Bailey, who was penalized by the commission for setting up an anonymous website in 2010 critical of then-gubernatorial candidate Eliot Cutler.
Maine Assistant Attorney General Phyllis Gardiner fields questions from the media Friday, Sept. 21, 2012, after leaving the federal courthouse in Portland. Gardiner is representing the state Ethics Commission in its legal battle with political consultant Dennis Bailey, who was penalized by the commission for setting up an anonymous website in 2010 critical of then-gubernatorial candidate Eliot Cutler. Buy Photo

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.

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