A legal battle over whether a political website attacking a candidate has a right of anonymity is moving forward in U.S. District Court, but with nearly all the documents sealed from view.
At least for now.
Attorneys on both sides are fighting over which documents should be made public.
On the surface, the dispute is over a $200 fine for the failure to include a disclaimer on the website in question, “The Cutler Files,” identifying who paid for the site.
But the case has become a four-way legal brawl involving two former gubernatorial candidates, a high profile political operative and the American Civil Liberties Union of Maine.
Moreover, the state’s largest newspaper, the Portland Press Herald, plans to enter the fray over the issue of public access to documents and email.
The case highlights the conflict between a political campaign’s right to privacy versus the public’s right to know who is manipulating opinion during an election. The case so far is shrouded in the kind of secrecy one might expect in a trial involving juveniles or a sexual assault, said Jonathan Piper, an attorney for The Portland Press Herald.
Because so many documents and motions classified as confidential, it’s difficult for the public to understand what the suit is about, he said. The newspaper will seek to intervene in the case to compel that documents be made public.
“All of this is extremely unusual and disturbing in light of the fact that our federal courts are historically and constitutionally open to the public,” he said.
The courts have ruled, however, that the U.S. Constitution gives First Amendment protection to people involved in political campaigns, said Jamie Wagner, attorney for Thom Rhoads, husband of Rosa Scarcelli, a Portland Democrat who last year unsuccessfully ran in the Democratic gubernatorial primary.
Wagner said that campaign workers and volunteers would be afraid to communicate with each other openly if they knew that a political opponent could file a lawsuit get access to the internal workings of a campaign.
“It would have a chilling effect,” he said.
Wagner said that the lawyers of Eliot Cutler, who ran for governor as an independent, have dragged Rhoads into the case.
The Cutler Files was active from about Aug. 30 through the election on Nov. 2, in which Cutler finished second to Gov. Paul LePage, a Republican.
The site, which was highly critical of Cutler, was created by Dennis Bailey, a veteran political consultant, and featured research provided by Rhoads.
The authors of the site were a mystery until Bailey and Rhoads identified themselves following investigation by the Maine Commission on Government Ethics and Election Practices.
Bailey was fined $200 for failing to disclose the names of people behind the website. In March, he filed a suit contending that the state violated his rights because anonymous speech is protected under the First Amendment. The Civil Liberties Union of Maine is providing legal assistance to Bailey.
Cutler has intervened in the lawsuit on the side of the state, and Rhoads has hired his own attorney.
U.S. Magistrate Judge Margaret Kravchuk, who is hearing the case, is expected in January to either make a ruling or send the issue to trial.
At stake is the future legal status of anonymous websites in Maine politics and whether the people who produce them enjoy the same First Amendment protections enjoyed by traditional media, such as newspapers, or should they be required to follow campaign finance and disclosure laws.
While attorneys are preparing their arguments, Kravchuk so far has allowed the email and documents gathered during the discovery process to be sealed, meaning they are hidden from public view. Many of the motions filed with the court have also been sealed.
However, the judge is also allowing both sides to make arguments about why the public should or should not have access to the documents. She is expected to make a ruling on the disclosure issues in early December.
In addition, Cutler’s attorneys want Rhoads to give them documents he wrote during the general election campaign last year for a presentation to the Democratic Governors Association.
Rhoads had attempted during the campaign to sell research on Cutler to Democratic nominee Libby Mitchell for $30,000, according to ethics commission documents.
David Kallin, an attorney representing Cutler, said that the judge has laid out a standard process for resolving the confidentiality issues.
However, the large number of documents that Bailey and Rhoads want to shield from public view is unusual, he said.
Bailey wants to keep the documents confidential in order to protect third parties unrelated to the suit, not himself, said Bailey’s attorney, John Paterson.
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