PORTLAND, Maine — Dennis Bailey’s controversial “Cutler Files” website, which anonymously criticized then-gubernatorial candidate Eliot Cutler in the weeks leading into the 2010 election, does not count as a journalism website, a federal judge ruled Sunday and upheld a Maine Ethics Commission fine for the site.

Bailey had appealed the commission’s $200 fine for his work on the website on the grounds that it should be exempt from campaign finance rules in the same way that newspapers and television stations can publish online commentaries critical of candidates without oversight.

But the commission argued that Bailey’s history as a paid campaign consultant for Cutler opponents Democrat Rosa Scarcelli and independent Scott Moody disqualified him as an unbiased third party while developing the site — and that he wished to remain anonymous not because of potential safety threats, as the law allows, but rather to conceal his agenda.

Assistant Attorney General Phyllis Gardiner, representing the commission, told U.S. District Court Judge Nancy Torresen in a hearing last month that unveiling the authorship of the site was important because it allowed the public to qualify the validity of the information being published.

In her ruling Sunday, Torresen agreed with the commission’s assessment, stating that the Cutler Files did not qualify as a periodical, and therefore was not covered by the press exemption.

“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,” Torresen wrote in her ruling, in part. “As such, it rightfully did not fall within the press exemption for a periodical publication.”

Bailey’s lawyer, Zachary Heiden of the American Civil Liberties Union of Maine, said Monday he was still reviewing the decision.


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