The latest development in the legal fight over a political attack website may give the public a better view into the workings of rival campaigns in Maine’s 2010 gubernatorial election.
A federal judge has ruled that some confidential documents surrounding the Cutler Files will be made public within a couple of weeks. Many of the emails and documents in the case so far have been under seal at the request of two key players.
At the heart of the case is the conflict between the right to anonymous political speech and the public’s right to know who is putting out information during an election campaign.
The case concerns two 2010 gubernatorial candidates, independent Eliot Cutler and Democrat Rosa Scarcelli, and the well-known political operative Dennis Bailey, who’s being assisted by the ACLU of Maine Foundation.
MaineToday Media, which owns The Portland Press Herald, is seeking to make the documents public and has asked to be a party in the case.
The Cutler Files website was active last year from about Aug. 30 through the election on Nov. 2. After weeks of denying any connection, Bailey admitted in December 2010 to being a co-creator of the anonymous website targeting Cutler.
Bailey had been a political advisor to Scarcelli, who lost in her bid for the Democratic nomination. Scarcelli’s husband, Thomas Rhoads, admitted in January – months after media reports of his involvement — to providing research for the Cutler Files.
The Maine Commission on Governmental Ethics and Election Practices investigated the Cutler Files after Cutler filed a complaint. The commission fined Bailey $200 for failing to disclose that he authored material to influence voting.
The case now making its way through U.S. District Court is Bailey’s appeal of the fine. He is arguing that the state violated his right to anonymous speech under the First Amendment.
This week, Magistrate Judge Margaret Kravchuk ruled that some documents from the discovery process that have been kept confidential at the request of Bailey and Rhoads will become public.
The orders issued Monday give the parties two weeks to object.
While the documents’ contents are still sealed, Kravchuk’s orders provide hints about their subject matter.
A document dated Nov. 30, 2009, about Scarcelli’s anticipated visit to the Democratic Governors Association, challenges the contention by Bailey and Rhoads that the research and writing for the Cutler Files was unrelated to Scarcelli’s campaign, the judge wrote.
After reviewing the document privately, Kravchuk ordered Rhoads, a subpoenaed witness, to provide the document for the case.
Melissa Hewey, a lawyer for Cutler, said that document is the most important for her client because the other parties have not had access to it.
Rhoads’ lawyer, Jamie Wagner, said they will comply with the order.
“It’s important to note that my client was taking the principled position regarding internal campaign communications. There was nothing about the document that caused him any concern,” Wagner said.
Certain parts of dozens of email messages also would become public.
One group of emails shows how Rhoads tried to limit the “political downside” of his involvement with the Cutler Files, according to Kravchuk’s description. The emails include correspondence about the ethics commission investigation and how Scarcelli should craft her press statement about it, Kravchuk wrote.
The topics of other emails included research on Cutler and public comment on the Cutler Files. There also were emails about conflict within the Maine Democratic Party, the candidacy of Democrat Pat McGowan, and the Press Herald’s treatment of Libby Mitchell, who won the Democratic nomination.
Material that has no legitimate purpose in the lawsuit and would only embarrass people unconnected to the litigation will remain confidential, Kravchuk wrote.
Zachary Heiden, legal director of the ACLU of Maine Foundation, said Bailey’s lawyers do not plan to object to Kravchuk’s order.
“It seemed like a very carefully worded decision, carefully reasoned,” he said.
It isn’t yet clear how other documents, filed as the case progressed, will be treated, said Sigmund Schutz, a lawyer for MaineToday Media.
“We agree that there is a lesser interest in public access to documents exchanged in discovery than there is in documents that are used in deciding the merits of the case,” he said. “The concern I would have, going forward, is whether there is going to be secrecy in connection with evidence the judge considers in deciding the merits of a significant case.”
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