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Court Decision: 'Cutler Files' not Journalism
10/01/2012   Reported By: A.J. Higgins

Parties on opposing sides have dramatically different takes on today's federal court decision that essentially says a political operative cannot be extended the same free speech protections as a journalist. Political consultant Dennis Bailey claims he was unlawfully fined by the state ethics commission for his role in creating a political Web site targeting independent gubernatorial candidate Eliot Cutler two years ago. But as A.J. Higgins reports, a federal judge sided with the state in ruling that Bailey cannot be both a paid political consultant and a citizen journalist.

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Dennis Bailey made money representing both Democratic hopeful Rosa Scarcelli and independent candidate Shawn Moody in Maine's race for governor two years ago. But when the state's media didn't dig up enough dirt on his clients' independent opponent, Eliot Cutler, Bailey decided to do the job himself as an anonymous citizen journalist.

Cutler says that kind of dirty politics was rejected by U.S. District Judge Nancy Torreson. "First of all I'm gratified," Cutler says. "I thought Judge Torreson wrote a strong and sound opinion, and it's well founded in the record. Secondly, I feel vindicated, obviously."

Cutler was targeted in a Web site called the Cutler Files that originated anonymously in 2010. The Web site referred to "lazy reporters" who refused to expose Cutler as a "phoney and a fraud." The site went on to accuse Cutler of possibly causing the deaths of 39 people through his "incompetence" as a Washington bureaucrat and being a lobbyist for Chinese interests.

An investigation by the state Ethics Commission forced Bailey to admit that he was the author of the Cutler Files Web site. The commission fined Bailey $200 for failing to include a disclaimer about who was funding the Web site and actually misleading viewers by stating the Web site was created by a "group of researchers, writers and journalists who are frustrated that Maine's mainstream media."

Bailey argued in his federal lawsuit against the Ethics Commission's finding, saying he was not technically employed by Scarcelli at the time the site went up. He said Moody never knew about his work that he defended as an example of citizen journalism.

But Torreson said it was clear to her that the Web site 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.

Cutler says the judge's decision is consistent with Maine's political traditions. "I think that everyone in Maine ought to be grateful to the Ethics Commission and Judge Torreson for making it clear that this kind of politics - which is what it was - has no place in Maine," he says. "We in Maine have a tradition, that's important, of dealing with public issues in a civil way."

"The court's decision is clearly very well researched and very well considered, and we want to spend a commensurate amount of time reviewing what she had to say," says Zach Heiden, of the Maine Chapter of the American Civil Liberties Union, who represented Bailey during the federal court proceedings.

Heiden says the court's decision doesn't address his argument that state law hasn't kept pace with changing technology, and that the anonymous speech should be protected. Heiden says he and his client are still considering whether they will appeal Torreson's decision.


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