PORTLAND — The parties in the Cutler Files suit made their cases before a federal judge Friday.
The case involves political consultant Dennis Bailey and the $200 fine imposed on him by the state Commission on Governmental Ethics and Election Practices for an anonymous website critical of then-gubernatorial candidate Eliot Cutler. The sanction was for failing to identify the person responsible of the Cutler Files website.
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Lawyers for Bailey, the ethics commission and Cutler presented oral arguments in a hearing on their motions for summary judgment. District Judge Nancy Torresen did not indicate when she would issue her decision.
Bailey, whose legal team includes the ACLU Foundation of Maine, is challenging the constitutionality of an disclosure requirement in election law, saying it violates his free speech rights.
Zachary Heiden of the ACLU of Maine described Bailey as a “citizen journalist” making use of new media. Heiden said a press exemption in the regulations for broadcasting stations, newspapers, magazines and other publications needs to address new media and that Bailey’s website should have been included in the exemption.
But Assistant Attorney General Phyllis Gardener disagreed that those were the central issues of the case. She said the case is about the public’s right to know who is trying to influence an election.
The Cutler Files, a website focused on a single candidate and launched a few weeks before the election, cannot be defined as a periodical, Gardener said. A periodical must involve “periodicity” – even if the time periods aren’t regular, she said.
The now-defunct website was created in August 2010 during the gubernatorial campaign.
After denying any involvement for weeks, Bailey admitted being a co-creator of the website. Bailey had been a political adviser to Democratic candidate Rosa Scarcelli before she lost her bid for the party’s nomination in June 2010. He then went to work for independent candidate Shawn Moody.
Scarcelli’s husband, Thom Rhoads, has since also confirmed that he was involved in the website.
Rhoads is an interested party in the case and Cutler, who also ran as an independent, is an intervenor.
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