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Controversial website not protected under press exemption to Maine campaign finance law

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A federal court Sunday upheld a fine against a campaign consultant who anonymously produced a controversial political website that violated…

A federal court Sunday upheld a fine against a campaign consultant who anonymously produced a controversial political website that violated Maine’s campaign finance laws.

U.S. District Judge Nancy Torreson ruled that James Bailey’s website, “The Cutler Files,” was not excluded from Maine campaign finance laws under the statute’s press exemption because it was not a “periodical publication.”

In 2011, Bailey appealed the Maine Ethics Commission’s $200 fine against him, claiming he had a right to post anonymously under the press exemption of the Maine disclosure requirements. Bailey claimed his website was “citizen journalism” and that revealing who funded the website violated the First Amendment because it burdened his right to speak anonymously.

The website, published by Bailey in August 2010, criticized then-gubernatorial candidate Eliot Cutler and claimed to “reveal the facts about his life, facts you’ll find nowhere else, to help voters see the full picture…you’ll see why Cutler is unfit to be Maine’s next governor.” The site was taken down two months later, days before the gubernatorial elections.

Bailey did not acknowledge that he used to be a paid campaign consultant for two of Cutler’s political opponents and wrote instead that the website was authored by “a group of researchers, writers and journalists.” Maine’s campaign finance law requires producers of campaign-related public communication to attribute how the content is funded. The press is exempted from this portion of the law.

Torreson determined that the press exemption does not apply to Bailey because his website “lacked the earmarks of a periodical publication” but not because the Cutler Files were created by a citizen and published solely online.

“The Cutler Files was more like a negative campaign flyer than a periodical publication,” the judge said. “The website was established for the sole purpose of advocating the defeat of a single candidate for election, and it was published immediately before an election by an individual working for an opposing candidate.”

Zach Heiden, an ACLU lawyer who represented Bailey, said they are still reviewing the opinion and deciding whether to file an appeal and will make a decision within the next week or so.

“I think it was a carefully reasoned and researched decision, though I disagree with the court’s conclusion,” Heiden said. “I continue to be troubled that the law here in Maine has not kept pace with technology. Reporters on the Internet are not treated the same as reporters on the television or in newspapers, and that poses constitutional problems.”