ACLU of Maine Defends Internet Free Speech In Federal Court Oral Arguments Held in “Cutler Files” Dispute

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PORTLAND—Today, the ACLU of Maine Foundation defended the free speech rights of Dennis Bailey, creator of the anonymous political blog “The Cutler Files,” in oral arguments before the U.S. District Court in Portland. Bailey’s suit challenges the constitutionality of two Maine restrictions on political speech: one which requires political speakers to disclose their identity, and another which excludes blogs and other internet speech from the “news story” exemption to political speech regulations. Bailey was found to have violated Maine election law and was fined $200 by the Maine Commission on Governmental Ethics and Election Practices. The ACLU of Maine believes that the fine violates Bailey’s right to free speech.

“Political speech is the heart of the First Amendment,” said ACLU of Maine Legal Director Zachary Heiden. “If the right to free speech means anything, it means that people will not be punished for criticizing candidates or speaking out about political ideas.”

Bailey created “The Cutler Files” in 2010 to share information about a gubernatorial candidate that he felt was being ignored by the mainstream media. Had a member of the professional press decided to share this same information–whether through a newspaper, magazine, or broadcast station–any spending on the story would have been exempted from counting as an “expenditure” under Maine election law. But Maine, unlike the federal government, does not exempt blogs or other internet communications, which meant that when Bailey created a political blog, he became accountable to election regulators.

“Maine law has simply not kept up with new technology,” said Heiden. “Many of us get our news from the internet, and there is no good reason to treat political speech on the internet differently from political speech on television or on the radio.”

Bailey also ran into trouble because of his desire to keep his name off the “Cutler Files” blog. Maine election law requires certain political publications to contain the name of the person who creates or funds them. Anonymous and pseudonymous political speech is a tradition in this country that dates back to before the ratification of the Constitution. One of the most famous publications urging that the Constitution be ratified, “The Federalist Papers,” was published under the pseudonym “Publius,” rather than under the names of the authors, John Jay, Alexander Hamilton, and James Madison. Publications opposing constitutional ratification were published under pseudonyms such as “The Federal Farmer” and “Cato”.

“James Madison would probably be shocked to discover that anonymous free speech is not protected by the First Amendment since he was the one who wrote it,” noted Heiden. “Sometimes anonymity is the only way someone can freely express themselves, and it needs to be scrupulously protected.”

The case, which is an appeal from the Commission’s decision as well as a challenge to the constitutionality of the Maine election laws, was originally filed in Cumberland County Superior Court. Eliot Cutler, the subject of Bailey’s blog, intervened in the case, and had the case transferred across the street to the Federal Court. Bailey is asking that the Court vacate the Commission’s decision, revoke the fine against him, and order the Commission not to enforce these particular laws in this way again.

Following oral argument, it is expected that the Court will further consider the written submissions before issuing a decision. The Court could decide the case in favor of Bailey or in favor of the Commission, or it could decide that there needs to be a trial in order to make factual determinations. There is no time frame for the Court to reach a decision.