Judge rules anti-Cutler website not journalism

PORTLAND, Maine — Dennis Bailey’s controversial “Cutler Files” website, which anonymously criticized then-gubernatorial candidate Eliot Cutler in the weeks leading into the 2010 election, does not count as a journalism website, a federal judge ruled Sunday and upheld a Maine Ethics Commission fine for the site.

Bailey had appealed the commission’s $200 fine for his work on the website on the grounds that it should be exempt from campaign finance rules in the same way that newspapers and television stations can publish online commentaries critical of candidates without oversight.

But the commission argued that Bailey’s history as a paid campaign consultant for Cutler opponents Democrat Rosa Scarcelli and independent Shawn Moody disqualified him as an unbiased third party while developing the site — and that he wished to remain anonymous not because of potential safety threats, as the law allows, but rather to conceal his agenda.

Assistant Attorney General Phyllis Gardiner, representing the commission, told U.S. District Court Judge Nancy Torresen in a hearing last month that unveiling the authorship of the site was important because it allowed the public to qualify the validity of the information being published.

In her ruling Sunday, Torresen agreed with the commission’s assessment, stating that the Cutler Files did not qualify as a “periodical” — a publication with new editions coming out periodically — and therefore was not covered by the press exemption.

Torresen pointed to a 1986 Supreme Court ruling that even a special edition of an otherwise frequently published newsletter — in that case, an anti-abortion newsletter which came out supporting certain Massachusetts political candidates before an election in 1978 — did not qualify as a periodical.

“The [Cutler Files] website was established for the sole purpose of advocating the defeat of a single candidate for election, and it was published immediately before an election by an individual working for an opposing candidate,” Torresen wrote in her ruling. “As such, it rightfully did not fall within the press exemption for a periodical publication.”

Torresen also wrote that although Bailey reported receiving angry letters and phone calls after his identity was revealed, he did not need to remain anonymous to protect his safety.

The judge questioned why Bailey would be concerned about retaliation for launching the “Cutler Files” if he was not similarly concerned about a blog post titled “Eliot Cutler Called Me Whore,” openly posted under Bailey’s name on his website three months earlier.

“This was a personal attack on Cutler for which Bailey made no attempt to hide his identity as author,” Torresen wrote.

She also rejected the argument of Bailey’s attorney, American Civil Liberties Union of Maine Legal Director Zachary Heiden, that Bailey was unfairly penalized because his otherwise exempt writings critical of Cutler were posted on an unconnected website instead of in a traditional media outlet or a site affiliated with one.

“The commission declined to apply the press exemption to the ‘Cutler Files’ because the ‘Cutler Files’ website was not the online equivalent of a broadcast station, newspaper, magazine or other periodical publication, not because the ‘Cutler Files’ was created by a citizen journalist and published on the Internet,” Torresen wrote.

Heiden said Monday he was still reviewing the decision. Bailey can appeal the decision to the U.S. Court of Appeals for the 1st Circuit in Boston, if he chooses to.

“It’s a long decision, and I want to think carefully about all the things the court said,” Heiden told the Bangor Daily News. “I haven’t yet had a chance to meet with my client and discuss what our next steps are going to be. We continue to believe that our laws have not kept up with technology, and we continue to believe that blogs and Internet sites deserve equal protection under the law as traditional media.”

During the case, Heiden argued that Bailey truly acted alone on the website — he was no longer working for Scarcelli, who’d been defeated in the Democratic primary months earlier, and Moody knew nothing about the site.

In that regard, he argued, Bailey was not acting as an agent of any of Cutler’s opponents, rather as an independent commentator allowed the same First Amendment freedom of the press protections as any journalist.

That the website did not have many of the hallmarks of a traditional media outlet, such as volume and edition numbers signifying their publication intervals, should not disqualify it from seeking exemptions to campaign finance rules, he said. That it was disqualified is a sign that the laws on the books are outdated and fail to adequately consider Internet publishing, Heiden said.

“You can’t protect websites any more because they look like magazines,” he said. “The Internet as a media deserves protection — it shouldn’t have to be shoehorned into the definitions of traditional media.”