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Memo Cutler Files 10.18.10

Memo Cutler Files 10.18.10

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Published by: Kennebec_Journal on Jan 05, 2011
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01/05/2011

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To:CommissionersFrom:Jonathan Wayne, Executive Director Date:October 18, 2010Re:Investigation of the Cutler Files Website
Update on Investigation
The Cutler Files website (www.cutlerfiles.com) was posted to the internet aroundMonday, August 30. The website has developed in the past seven weeks, as new pagesfor different topics have been added.The Commission received a request by the Cutler campaign to investigate theCutler Files website on September 7, 2010. Based on the language of the website at thattime, the Commission staff concluded that the website expressly advocated for the defeatof Eliot Cutler, and therefore violated 21-A M.R.S.A. § 1014 which required that certaininformation be included in the website itself.At a meeting on Thursday, September 9, 2010, you authorized the Commissionstaff to investigate. That day, the staff sent a letter requesting an opportunity to interviewone witness by letter. We interviewed the witness on Monday, September 13, 2010.Shortly after September 13, I received legal arguments that the authors of theCutler Files wished to remain anonymous. We received a September 26 letter from DanBillings, counsel for the Cutler Files, asserting that the Cutler Files is a low-cost websitecosting less than $100 produced by individuals who have a right to remain anonymousunder the First Amendment of the U.S. Constitution. At a meeting on September 30, youauthorized the Commission staff and counsel to evaluate Mr. Billings’ First Amendment.Since the September 30, 2010 meeting, we have received written materials from Norman Hanson & DeTroy, LLC on behalf of the Cutler campaign; the Maine CivilLiberties Union; and the Electronic Frontier Foundation. Tomorrow, we expect to
 
receive a submission from Richard Spencer on behalf of the Cutler campaign, which wewill forward to you by e-mail.The Commission staff has conducted a partial investigation, which includes oneinterview of someone whom we believe is connected to the Cutler Files website and twoindividuals who are not. Mr. Billings has submitted a sworn affidavit in response to aquestionnaire we sent to him. Some of the information in the affidavit is corroborated bythe interview responses.
Potential Legal Violations
 Disclaimer Violation (21-A M.R.S.A. § 1014(2))
As explained below, the Commission staff believes that Dan Billings has made aFirst Amendment argument that deserves to be considered seriously, and may justify notenforcing the disclaimer statute in this matter. Nevertheless, the staff believes that theCutler Files website very likely did violate 21-A M.R.S.A. § 1014(2) (attached), particularly in its first 10 or 11 days. The Commission staff believes the website meetsthe standard for express advocacy is in the Commission’s rules (Chapter 1, Section 10(2)(B)). Throughout its public posting, the website has contained a number of sharplynegative statements about the candidate that question his qualifications for office(trustworthiness, competence,
etc.
). During its first 10 or 11 days on the internet,(approximately August 30, 2010 to September 9), the site also contained such phrases as"You'll see why Eliot Cutler is unfit to be Maine's next governor," "[Cutler] would makea lousy governor,” "Eliot Cutler, alleged independent candidate for Maine governor."The staff believes that during the 10-day period, the entire content, taken together, couldhave no other reasonable meaning than to urge Mr. Cutler’s defeat.On September 9 or 10, the language on the website changed. The authors of thewebsite later told me in an e-mail that they received some informal legal advice anddecided to change the language to eliminate express advocacy. I am not sure that youwill agree that express advocacy has been eliminated. Also on September 9 or 10, theauthors of the site added the message “Not paid for or authorized by any candidate.” Asof yesterday, the bottom of the home page’s text is:
Who we are: We are a group of researchers, writers and journalists who are frustrated that Maine’smainstream media is either unwilling or incapable of adequately investigating the backgrounds of candidates
2
 
 for higher office. We are not authorized by or affiliated with any candidate or political party, and we have not been compensated in any way for our effort.
We do not advocate for or against the election of any particular candidate.
We are simply exercising our First Amendment rights of free speech to provide the public with important information regarding candidates. The information provided here comes from a varietyof reputable public sources, including news articles, court and municipal records and other documents. Linksare provided throughout this site so a reader can obtain most of the source material and decide for themselves.Contact us at cutlerfiles@yahoo.com Paid for an authorized by The Cutler Files
C/O Daniel Billings, EsquireMarden Dubord Bernier & StevensP.O. Box 708, Waterville, ME 04903-0708
NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE
 Independent Expenditure Reporting Statute (21-A M.R.S.A. § 1019-B)
If a person or committee makes an expenditure greater than $100 for a communicationthat expressly advocates for the defeat of a candidate, the sponsor is required to file anindependent expenditure report (21-A M.R.S.A. § 1019-B). The affidavit submitted by Mr.Billings argues that the total anticipated cost of the website is around $92. The Cutler campaignquestions whether that total is complete. Also, the campaign has argued to Commission staff that after the research for the website was completed, the provision of that research to others for the purpose of an express advocacy website constitutes an
in-kind expenditure
greatly exceeding$100. Mr. Spencer may wish to advance that argument at the October 20 meeting.
Argument by Cutler Files Counsel Daniel I. Billings
In his September 26, 2010 letter on behalf of the Cutler Files, Attorney Dan Billingsargued that the Cutler Files author(s) wish to remain anonymous because “they do believe thattheir identities might detract from the impact of the information set forth in the blog.”(September 26, 2010 letter, at 2) Also, “it is certainly plausible that [Eliot Cutler] might turn hisresources towards seeking vengeance on the authors of the Cutler Files.” (Id.) He relies on twoU.S. Supreme Court decisions to argue that anonymous speech is protected by the FirstAmendment of the U.S. Constitution. He contends that 21-A M.R.S.A. § 1014is not narrowly tailored because it applies to all expenditures that expresslyadvocate the election or defeat of a candidate. Certainly, Maine law cannot havean overriding interest that trumps the broad protections that the Constitution provides political speech when such communication is not done by a party,3

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