The Cutler Files Case Should Worry Maine Journalists
By Al Diamon
The First Amendment versus the last gubernatorial campaign: Sometime in the next few weeks, U.S. District Court Judge Nancy Torresen is going to issue a ruling that might define who gets to call themselves a journalist. If the state of Maine has its way, that definition will be considerably narrower than it is now.
Torresen is overseeing a case involving a defunct website called “The Secret File on Eliot Cutler.” It appeared during the 2010 gubernatorial race and contained extensive research into the background of the independent candidate. The material was entirely negative, and the authors were anonymous.
“The Secret File” listed extensive citations of source material, and most of its claims were accurate (one about Cutler being responsible for deaths caused by a dam collapse was stretched too far to bear even the slightest scrutiny). I used some of this information in one of my political columns, but for the most part, the news media ignored the site.
That is, until Cutler (in one of the clumsiest moves of his campaign) complained about it to the state ethics commission. He wanted the perpetrators identified and fined. The commission eventually complied, revealing that Portland public-relations expert Dennis Bailey and Thomas Rhoads, husband of former Democratic gubernatorial candidate Rosa Scarcelli, were the perps. Bailey was ordered to pay $200 for failing to include a disclaimer on the site saying who paid for it. Bailey appealed that fine in federal court, and on Sept. 21, there was a hearing on various motions regarding his claim that he was acting as a “citizen journalist” and was protected by the Constitution’s guarantee of a free press.
That’s how we ended up where we are now.
Let me be clear about my prejudices. I agree absolutely with Bailey that he had a fundamental right to attack Cutler without revealing his or Rhoads’ identity. Cutler’s and the commission’s use of state campaign finance laws to attempt to suppress this sort of activity is extremely disturbing. All political speech, whether it has a byline or not, ought to be off limits to government interference.
At the same time, I was angered by Bailey and Rhoads repeatedly lying to the media by denying their involvement, often using convoluted phrasing in an attempt to cover themselves. Neither of these guys is a novice at politics or dealing with reporters. They should have known better than to trash their credibility by failing to come clean. As poster children for free speech, they’re a sorry spectacle.
Unfortunately, there’s a lot more at stake here than the reputations of a couple of political figures whose shelf lives have expired. If Torresen agrees with the state, her ruling could strip a large segment of the Maine media of much of its First Amendment protections.
According to press accounts, Assistant Attorney General Phyllis Gardiner, representing the ethics commission, argued before the court that all such attacks on candidates must include the names of the authors. In addition, Gardiner claimed that the Cutler Files site wasn’t protected by the First Amendment because it wasn’t a periodical (and that it wasn’t a periodical because it wasn’t updated from time to time, even if those updates were irregular).
That would appear to exclude from the umbrella of freedom of the press all one-off screeds posted online and many books. It opens up virtually any anonymous website, pamphlet or poster to government nitpicking about who is and isn’t a journalist.
There’s a reasonable chance Torresen, being an astute legal scholar, will grasp these points and tell the state to pound sand. But if not, the forecast for this fall is for a serious chilling effect on the rights of lots of people with something to say about politicians.
Lincoln inaugurated: Fans of the funny pages are mourning the loss of Richard Thompson’s cutting-edge comic strip “Cul de Sac,” which came to an end on Sept. 23 because Thompson is suffering from Parkinson’s disease. “Cul de Sac” was considered by many, including me, to be the only true successor to “Calvin and Hobbes,” by Bill Watterson.
Of course, the impact wasn’t felt much in Maine, where no daily paper carries the strip (wouldn’t want to displace “Peanuts” re-runs, “For Better or For Worse” do-overs, or “Mark Trail” plot rehashes). But there is a local angle.
The Boston Globe announced that it will replace “Cul de Sac” with “Big Nate,” the comic created by Lincoln Peirce of Portland. Nice exposure for a local guy trying hard to make good.
I only wish it hadn’t taken Thompson’s departure to make it happen.
Al Diamon can be emailed at email@example.com.