The Fallout From The Cutler Files Case

By Al Diamon

On Sept. 30, U.S. District Court Judge Nancy Torresen handed down her decision in the matter of Dennis Bailey v. State of Maine Commission on Governmental Ethics and Election Practices and Eliot Cutler, otherwise known as “The Secret File on Eliot Cutler” case. In a 37-page opinion, Torresen found against Bailey on every count, but left some murky questions unanswered about what legally qualifies as journalism.

The judge said the ethics commission was correct in fining Bailey $200 for operating an anonymous website in 2010 attacking independent gubernatorial candidate Cutler. Her ruling said that sites that expressly advocate for the election or defeat of a candidate should contain disclaimers stating who paid for them and whether they are associated with any political candidates. She rejected Bailey’s contentions that he was acting as a “citizen journalist” and that The Cutler Files was a news site.

Bailey is a former reporter and current owner of a public-relations agency in Portland. He’s worked for a variety of politicians, and was advising Shawn Moody, another independent candidate for governor, in August 2010, when his website attacking Cutler went live.

Bailey screwed up by posting a misleading disclaimer on the site claiming the authors were a “group of researchers, writers and journalists … not authorized by or affiliated with any candidate or political party.” Since he was working for Moody at the time (even though Moody apparently didn’t know about his involvement with the site), that statement was untrue and misleading. Also, there was no “group.” The files were the work of Bailey and Thomas Rhoads, husband of Rosa Scarcelli, a Democratic gubernatorial candidate for whom Bailey had previously worked.

So, Bailey is hardly a shining example of journalistic integrity. He was less than truthful on his site and lied numerous times in public about his involvement with The Cutler Files. No need for more conventional reporters and editors to be concerned for him.

Or is there?

At first glance, this decision wouldn’t appear to have any impact on Maine news organizations, even those run by “citizen journalists.” Torresen said The Cutler Files was “more like a negative campaign flyer than a periodical publication.” In a footnote, she wrote, “The State’s interest in insuring that election coverage and commentary by the press is not constrained is a compelling interest.” She also noted, “The press exemption [from disclosure laws] on its face does not categorically exclude internet publications from its protections.”

But elsewhere in her decision, there’s this: The judge appears to approve of the ethics commission’s rules requiring that Internet-based news operations be “disseminated by broadcasting stations, newspapers, magazines or other periodical publications.”

This confusing mess would seem to indicate that this website is protected because The Bollard’s print edition appears monthly, but such online-only operations as Dirigo Blue, the Maine Wire, the Daily Bulldog and New Maine Times are working without a net, because none is affiliated with a traditional news medium. If that’s truly Torresen’s interpretation of the law, it’s a frightening one.

Much of this case hinged on whether The Cutler Files qualified as a “periodical” publication. The law defines “periodical” as being something that is updated frequently, although not necessarily regularly. (It would appear the law needs to invest in a good dictionary, since every one I consulted said the word implies publication at regular intervals.)

During the roughly one month the Cutler site was active, Bailey updated it at least six times. But the judge dismissed that evidence, saying the case against its “periodical” nature was more compelling. She said the site failed to qualify because it dealt with a single topic (look out, magazines ranging from Imbibe – topic: drinking – to Dog Fancy – topic: dogs – to High Times – topic: dope), existed for a limited time (as do most news outlets, much to their regret) and appeared just before an election (!?!) – all indications that, in her opinion, it wasn’t worthy of freedom of the press.

Torresen also cited the temporary nature of The Cutler Files in denying it constitutional protection. “This case could well have come out differently,” she wrote, “if the Cutler Files had any sort of track record before it appeared on August 30, 2010, or if it had extended beyond its two month run.” She later added, “Bailey never intended the site to run after the election.”

In other words, to win legal protection, a news outlet must exist before it becomes controversial and continue to operate after no one wants to read it anymore.

According to Torresen, the ethics commission “withheld the press exemption from [Bailey] not because he published on the internet or because he was a citizen journalist, but because his website did not meet the definition of a periodical publication.”

She cited Federal Election Commission rules that deny First Amendment protections to single-issue blogs “not involved in the regular business of imparting news to the public.”

Bailey argued otherwise in court filings. “Speech is speech,” he said, “news is news, and commentary is commentary regardless of form and regardless of whether published on a continuous basis or published only on a website.”

Much as I think he did a lot of things wrong in this case, it’s difficult to argue with that.

Al Diamon can be emailed at aldiamon@herniahill.net.