AUGUSTA, Maine — The top Democrat in the Maine Senate is proposing legislation to require partisan sites imitating news outlets to disclose their affiliations, although it could run into issues with the First Amendment and the blurred line between news and advocacy.
The issue gained attention this week after The New York Times published an article detailing the connection between a network of more than 1,000 websites and conservative groups that feed them stories without disclosure. Some of those sites focus on Maine, which has seen partisan groups start sites in recent years trying to fill roles traditionally played by legacy media.
In a Wednesday video and a press conference earlier this week, Senate President Troy Jackson, D-Allagash, pointed to that network of sites as well as the conservative Maine Examiner as examples of “fake news,” as opposed to traditional news outlets like the Bangor Daily News or network TV stations. The difference, he said, is that reporters who work for those outlets put their names to articles, while some writers for partisan sites do not.
“You may not agree with the stories that are written in there, but you know who wrote them,” he said in a Twitter video.
Jackson’s office said he has submitted a bill to make “fake news” sites disclose who runs and funds them on their homepages, but it did not provide details about how the bill would define those sites. The bill has not been written and would not be considered until 2021.
News sites are typically exempt from having to disclose who funds them and the First Amendment protects speech across all forms of media. On Thursday, media experts said increased disclosure could help readers spot misinformation, but they questioned whether the government should define how the press operates or what is considered “real” or “fake” news.
“It’s hard to see if any such effort to regulate ‘fake news’ could pass First Amendment scrutiny,” said Sigmund Schutz, a partner at the law firm Preti Flaherty and a media lawyer who has represented the Portland Press Herald and sister papers.
The Maine Examiner is run by Jason Savage, the executive director of the Maine Republican Party, although that was not known until an ethics complaint was filed against the website after it published articles attacking a progressive mayoral candidate in Lewiston. The complaint was dismissed and Savage later added his name to the site, though it is not attached to each article.
Savage, who has said he operates the website in his free time and not in his role with the party and is the only author of the site, said Jackson’s proposal raised “glaring” constitutional issues.
Also prominent is the Maine Beacon, an offshoot of the liberal Maine People’s Alliance, a nonprofit that does not disclose donors and is affiliated with a network of dark-money groups that fund similar organizations across the country. The Beacon has an editor and three reporters who use bylines and sometimes break news picked up by traditional outlets, but they also often amplify their parent group’s messaging in campaign coverage.
Sites like Maine Business Daily, the state-focused site that is part of the network examined by The New York Times, operate differently by placing articles commissioned by political operatives next to more innocuous items.
On Thursday, Jackson spokesperson Christine Kirby drew a distinction between sites like Maine Business Daily and the Maine Examiner as opposed to the Beacon or the Maine Wire, a site run by the conservative Maine Policy Institute, since both of the latter sites list their writers.
But regulating that distinction may be difficult. Schutz said politicians already have legal remedies to combat websites spreading defamatory misinformation. He questioned how legislation could penalize outlets that do not follow disclosure laws and how it could be fair to require one outlet to disclose and not another.
Regulating that distinction may be difficult. Schutz said politicians already have legal remedies to combat websites spreading defamatory misinformation. He questioned how legislation could penalize outlets that do not follow disclosure laws and how it could be fair to require one outlet to disclose and not another.
J.W. Oliver, the editor of the Lincoln County News and the president of the Maine Press Association, an interest group for newspapers that the BDN and sister papers belong to, cautioned that definitions in Jackson’s bill should be narrowly tailored. He said the idea of politicians defining the validity of news made him “nervous.”
But he also said any such bill could help combat misinformation, saying traditional outlets and “advocacy journalism” like the Beacon and the Maine Examiner are at least transparent about their political affiliations.
“It’s not news at all,” he said, referring to sites such as Maine Business Daily. “It’s information put out with the intent to deceive.”