AUGUSTA — A 2010 case in which Maine’s ethics commission slapped a $200 fine on the purveyor of a politically oriented website cloaked in anonymity suddenly seems relevant again.
As Democrats and Republicans clash over the secretive Maine Examiner online site that helped contribute to the defeat of a Lewiston Democrat in last month’s mayoral runoff, a court’s ruling in the earlier case appears to address some of the issues at stake in the showdown.
Dennis Bailey, whose controversial “Cutler Files” website drew attention after independent gubernatorial hopeful Eliot Cutler filed an ethics complaint about it eight years ago, said Thursday, “Jeez, maybe we started a trend or something. That was never the intent.”
Zachary Heiden, the legal director for the Maine ACLU, said there is a key difference between Bailey’s case, which he argued in an unsuccessful appeal, and what appears to have occurred with the Maine Examiner.
In the Cutler Files case, he said, Bailey was an individual acting on his own to provide truthful information that no one ever disputed.
With the Maine Examiner, Heiden said, it appears the Maine GOP tried “to pretend to be private individuals” engaging in free speech when they were actually political operatives.
Heiden called it “illuminating” that they recognized the value of coming off as private citizens speaking out rather than a mouthpiece for a political organization.
In the earlier case, the Maine Commission on Governmental Ethics and Election Practices fined Bailey for setting up the website that slammed Cutler because his Cutler Files site failed to mention who created and financed it.
The law allowed an exemption for media organizations unless they are owned or controlled by a candidate, a candidate’s family, a political party or a political committee.
The Democratic complaint this year alleges the Maine GOP’s executive director, Jason Savage, is tied to the Maine Examiner, which means it ought to cite who owns and operates it. The Democrats also claimed the Republicans failed to report spending related to the Examiner.
Savage said the Democrats’ complaint is “completely without merit.”
The Maine GOP’s chairwoman, Demi Kouzounas, said her party “takes its legal obligations seriously and has met them.”
But the case that put Bailey on the hot seat appears to lend credence to the Democrats’ argument that the Examiner’s role in pushing stories that zinged Lewiston mayoral hopeful Ben Chin in the days leading up to the Dec. 12 runoff election were politically motivated and covered by state disclosure requirements.
During the 2010 campaign, Bailey, a former journalist whose public relations firm had become a major player in Maine, was hired as a political consultant by candidate Rosa Scarcelli. Her husband, Thomas Rhoads, collected reams of material from books and the internet about Cutler, one of her opponents, according to a 2011 federal court ruling that summarized the case’s history.
When Scarcelli lost, Bailey went to work for independent gubernatorial contender Shawn Moody. In August, Bailey created the Cutler Files website and posted the anti-Cutler material Rhoads had collected. The site didn’t include any information about its origins or owner.
Bailey said Thursday the site drew only a smattering of readers. He said he hoped it would spur interest from journalists who might try to probe further into Cutler’s financial dealings over the years, but that didn’t happen.
“We put this thing up on a website, and that’s all we did,” Bailey said.
It might have vanished as anonymously as it appeared except for one thing: Cutler filed an ethics complaint about it.
The publicity accomplished one thing for sure: It drew readers.
Bailey said that more than 30,000 people eventually pored over the material — all of which, he said, was true. “I stand by every word that we wrote,” he said.
Soon after Cutler filed a complaint, a disclaimer appeared on the Cutler Files site saying it was not paid for nor authorized by any candidate and directed questions to a Waterville attorney.
The commission determined the Cutler Files site did not quality for a press exemption from campaign finance rules because it was not a periodical publication and was set up by Bailey to advocate for Cutler’s defeat.
“The Cutler Files was more like a negative campaign flyer than a periodical publication,” the court ruled.
The ongoing nature of the Maine Examiner is different from the mostly static Cutler Files site. It is more like a periodical given that it has regularly provided new stories since its inception in September, not just the ones portraying Chin badly, a factor that might matter to the ethics panel considering the Democrats’ complaint.
The Maine Examiner’s stories have a clear right-wing slant, but the pieces it has published are basically factual if not especially fair.
The ethics panel in 2010 decided Bailey, who had a long history in politics, was acting as more than just an interested citizen who would have more right to speak anonymously.
Bailey said it’s a peculiarity of the law that he could put on a Nixon mask and spout off at a mall about why one candidate or another should win an election without violating any campaign finance law. But if he tries to do something similar online, the law can require unmasking him to meet disclosure laws, he said.
Though the ethics panel decided Bailey hadn’t quite spent the $100 legal threshold for reporting the website expense, it fined him anyway because it asserted the total was significant enough to qualify.
The federal case turned on the question of whether Bailey had a First Amendment right to speak up without having to provide the state-mandated disclosure information on his website. After weighing the issue, District Court Judge Nancy Torresen ruled against Bailey, who opted not to appeal out of concern an appellate ruling against him might limit free press rights even further.
Heiden said that courts have ruled that speech involving political candidates and campaigns can be regulated.
Though anonymous speech is allowed, he said, there is a concern that if it’s connected to a political campaign or party people should be able to find out who is behind it.
Striking that balance, Heiden said, is something the legal system tries to do.
Bailey said what strikes him as he looks at the issues swirling around the Maine Examiner is how it demonstrates how difficult it will be to stymie the spread of genuinely fake news.
“It does show there’s no stopping this,” Bailey said, because anyone can be a publisher online and reach a worldwide audience.
One possible solution, he said, is for people to learn how to evaluate the information they read or see to determine whether it’s junk or worthwhile.
Bailey said journalists haven’t done enough to teach people “what journalism is” and how something like the Examiner differs from a genuine newspaper.
“People are getting hoodwinked by these people who aren’t journalists,” Bailey said. “It’s happening all over the country. It’s so easy.”
Screeenshot of the Cutler Files website, which no longer exists. It was active during the last two months of the 2010 gubernatorial election. (Gavin O’Brien Photo)
Send questions/comments to the editors.
