To: Commissioners

From: Jonathan Wayne, Executive Director

Date: October 18, 2010
Re: Investigation of the Cutler Files Website

Update on Investigation
The Cutler Files website (www.cutlerfiles.com) was posted to the internet around
Monday, August 30. The website has developed in the past seven weeks, as new pages
for different topics have been added.
The Commission received a request by the Cutler campaign to investigate the
Cutler Files website on September 7, 2010. Based on the language of the website at that
time, the Commission staff concluded that the website expressly advocated for the defeat
of Eliot Cutler, and therefore violated 21-A M.R.S.A. § 1014 which required that certain
information be included in the website itself.
At a meeting on Thursday, September 9, 2010, you authorized the Commission
staff to investigate. That day, the staff sent a letter requesting an opportunity to interview
one witness by letter. We interviewed the witness on Monday, September 13, 2010.
Shortly after September 13, I received legal arguments that the authors of the
Cutler Files wished to remain anonymous. We received a September 26 letter from Dan
Billings, counsel for the Cutler Files, asserting that the Cutler Files is a low-cost website
costing less than $100 produced by individuals who have a right to remain anonymous
under the First Amendment of the U.S. Constitution. At a meeting on September 30, you
authorized 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 Civil
Liberties Union; and the Electronic Frontier Foundation. Tomorrow, we expect to
receive a submission from Richard Spencer on behalf of the Cutler campaign, which we
will forward to you by e-mail.
The Commission staff has conducted a partial investigation, which includes one
interview of someone whom we believe is connected to the Cutler Files website and two
individuals who are not. Mr. Billings has submitted a sworn affidavit in response to a
questionnaire we sent to him. Some of the information in the affidavit is corroborated by
the 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 a
First Amendment argument that deserves to be considered seriously, and may justify not
enforcing the disclaimer statute in this matter. Nevertheless, the staff believes that the
Cutler 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 meets
the 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 sharply
negative 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 make
a lousy governor,” "Eliot Cutler, alleged independent candidate for Maine governor."
The staff believes that during the 10-day period, the entire content, taken together, could
have 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 the
website later told me in an e-mail that they received some informal legal advice and
decided to change the language to eliminate express advocacy. I am not sure that you
will agree that express advocacy has been eliminated. Also on September 9 or 10, the
authors of the site added the message “Not paid for or authorized by any candidate.” As
of 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’s
mainstream media is either unwilling or incapable of adequately investigating the backgrounds of candidates

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 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 variety
of reputable public sources, including news articles, court and municipal records and other documents. Links
are 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, Esquire
Marden Dubord Bernier & Stevens
P.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 communication
that expressly advocates for the defeat of a candidate, the sponsor is required to file an
independent 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 campaign
questions 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 Billings
argued that the Cutler Files author(s) wish to remain anonymous because “they do believe that
their 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 his
resources towards seeking vengeance on the authors of the Cutler Files.” (Id.) He relies on two
U.S. Supreme Court decisions to argue that anonymous speech is protected by the First
Amendment of the U.S. Constitution. He contends that 21-A M.R.S.A. § 1014

is not narrowly tailored because it applies to all expenditures that expressly

advocate the election or defeat of a candidate. Certainly, Maine law cannot have
an overriding interest that trumps the broad protections that the Constitution
provides political speech when such communication is not done by a party,

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 candidate or committee and such communication cost[s] merely a de minimis
amount of money.

(September 26, 2010 letter, at 4) (underlining in original) He argues that the Commission
should not enforce 21-A M.R.S.A. § 1014 against the Cutler Files and should terminate
its investigation.

Staff Analysis of Cutler Files’ First Amendment Argument

The Commission’s counsel and staff have considered Mr. Billings First
Amendment argument. Because a finding of violation in this matter could result in
litigation, the staff and counsel prefer to provide their full analysis of the constitutional
limitations on the Commission during executive session pursuant to 1 M.R.S.A. § 405(6)
(E).
We foresee some risk for the Commission if were to make a finding that the
Cutler Files violated the disclaimer statute. Since McIntyre v. Ohio Election
Commission, 514 U.S. 334 (1995), the federal courts have given considerable protection
to anonymous political speech in order to encourage a robust dialogue about public
issues. The cases are not uniform, and the protection is not absolute, so it is difficult to
forecast how the courts would view such a finding of violation by the Commission.
Disclaimer laws have been upheld in spite of various types of constitutional attacks.
Most recently in Citizens United v. Federal Election Commission, 130 S.Ct. 876, 916
(2010), the U.S. Supreme Court found that disclaimer requirements provide information
to the electorate to help them make informed decisions and give proper weight to
different speakers and messages.
The Commission staff is almost always on the side of giving voters more
information about who is trying to influence their decisions in the polling place.
Nevertheless, because the Commission regulates in the area of First Amendment activity,
it needs to be cautious that it does not overstep the limits that the U.S. Constitution
imposes on state governments. The First Amendment doesn’t just regulate lawmakers. It
also constrains how state agencies or departments apply those laws in specific
circumstances.

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 It is also worth considering that when it comes to identifying speakers or
encouraging truthful speech, the Commission is not the only actor in the political arena
(and is, in fact, required by the courts to take a restrained role). First Amendment
jurisprudence recognizes that bad or misleading speech should be addressed – not
through suppression or inhibition by the government – but by good speech from the
private actors in the marketplace of ideas such as the press, other candidates, fact-
checking organizations, and interest groups.