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Tuesday, April 30, 2013

Internet under attack in Maine
Bailey v speech police v Cutler 

I have written here often about the mixed up status of the legality of anonymous speech after Citizens United. Here's another recent opinion from Maine which tries hard but gets it wrong. This was 6 months ago, richard winger/ballot access news just found the case.



 I'm having some trouble with fonts and formatting, new laptop, this entry may display oddly. 


 http://www.ballot-access.org/2013/04/29/u-s-district-court-rules-against-anonymous-blogging

 http://www.politico.com/blogs/media/2013/04/the-state-of-maine-vs-anonymous-blogging-162936.html

http://www.sunjournal.com/news/maine/2012/10/01/federal-judge-rules-cutler-files-not-journalism/1258723

I haven't seen the ruling yet,but it seems to conflict with
1973 Opinion of the Justices, 306 A.2d 18 (Maine 1973.) My files are somewhere in the attic and I couldn't find it online, but I remember this case as holding that anonymous speech is protected under the Maine constitution. Does anyone have it handy?


Found it.  http://me.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19730613_0040056.ME.htm/qx

I remembered it correctly. In an advisory opinion about whether the legislature could require editorials to be signed, the Maine Supreme Court, guided by Talley, held that requiring editorials to be signed would violate freedom of the press under the state constitution. This case would seem to be controlling authority here.


It is conceivable that I am wrong and that the Maine opinion was only on the federal question.
 "The Justices of the Supreme Judicial Court of Maine recently considered a question comparable to that presented here. Opinion of the Justices, 306 A.2d 18 (1973). Citing Talley, the Justices there concluded that a proposed Maine statute, requiring that newspaper editorials "shall indicate by a byline the person or persons who have written such editorials", was unconstitutional as an abridgment of freedom of the press (or freedom of speech) in violation of the First Amendment."

I found a joint statement of facts
 http://www.scribd.com/doc/80967017/Cutler-Files-Doc-2

Seems like state-sponsored harrasment of core political speech. I suspect the state's involvement here was unethical, for the lawyers involved, and maybe illegal as a civil rights violation for all the staff and commission who worked on this.

Found the decision (pdf)
 http://www.gpo.gov/fdsys/pkg/USCOURTS-med-1_11-cv-00179/pdf/USCOURTS-med-1_11-cv-00179-3.pdf

First notes:
1. Cutler intervened in the suit. He narrowly lost the governor's race, remains a major player, his law firm merged with Akin Gump, was a Carter administration official. So if I'm right that it was an ethical violation for the lawyers involved in this case, that could affect Cutler, depending on what positions he took.
2. Statute has later been amended to exempt internet. Does not moot case.
3. Opinion makes the disclosure/disclaimer mistake.
4. statute only applies to express advocacy, was there any here?

[update: part of the statute requires express advocacy, part doesn't. I need to review the statute subsection numbers to sort this out.]
5. footnote 9 is colorful:
“Eliot Cutler Called Me a Whore,”
6. Bailey is a journalist: degree, experience, online presence.
7  46,989 hits to site.
 8 Bailey reports that his secretary quit after he went public as the Cutler Files creator because “[t]he situation became so uncomfortable and intolerable.”so there's an NAACP v Alabama type issue.
9 the Cutler campaign filed a complaint - smoking gun.
10 Article I, Section 4 ofthe Maine Constitution - preserved state con issue.
 “Every citizen may freely speak, write and publish sentiments on any subject, being
responsible for the abuseof this liberty; no laws shall be passed
 regulating or restraining the freedom of the press . .
 11 error in standard of review - used buckley lax scrutiny standard
(but see citizens united, did same thing)
12 good discussion of mcintyre and cu
13 bound by NOM v McKee first circuit. good discussion of other cases.
14. the usual errors about mcintyre being a lone gunman and only about referenda; neither of these are true.
15 the opinion completely fails to address the state constitutional claim, reversable error in light of controlling authority from the maine supreme court.
16 i am willing to go along with the court's equal protection and de minimus arguments.

So, has this case been appealed? Is it final? Did he pay the $200 fine? 

OK, plaintiff didn't appeal to the 1st circuit because the aclu lawyers said it might set a bad precedent. I'm having some trouble with fonts and formatting; this entry may display oddly. 
What I should do, but probably wont, is file a complaint against Cutler and or the board's attorneys.
http://www.mebaroverseers.org/attorney_complaints/index.shtml

The board is comprised of : Walter F. McKee, Esq., Chair; André G. Duchette, Esq.; Hon. Edward M. Youngblood; Margaret E. Matheson, Esq., Michael T. Healy, Esq.

 http://www.maine.gov/ethics/meetings/2011/20110127_actions.htm

Here is the commission's 2010 ruling on Bailey.

 http://www.maine.gov/ethics/pdf/item02_001.pdf

1. "The Cutler Campaign, represented by Richard Spencer, Esq., urged the

Commission to continue its investigation." So that's, minimum, Cutler and his lawyer, 5 lawyers on the board, and likely some staff lawyers, conspiring to violate Bailey's civil rights under the Maine constitution, which has to be some sort of ethical violation.

2. No express advocacy. The website contain statements critical of Cutler, but no "magic words" and no exhortation to vote. Implied advocacy does not constitute express advocacy. If there was any express advocacy, it isn't listed in the ruling. Now, I haven't brushed up on the current statutory definition of express advocacy - it might be statutorially defined to include statements which are not advocacy or which are not express. See Furgatch, etc.,


3. Bailey's corporation, Savvy inc., was or may have been involved in the website in some way. This brings the case closer to Citizens United and NOM v McKee than the Talley/McIntyre line of cases.

[update - it doesn't appear the corporation was involved.]

4. David Kallin, esq.'s name appears on a letter as a lawyer for Culter, so there's one more.


5. Several newspaper articles are attached to the file.


I hope to keep working on this entry, so send me your scoops. gtbear at gmail.com.

update thursday: i was offline while riding the train to nebraska, so i wrote a second set of notes:

Bailey v Maine Ethics Comm'n. v Cutler is a 2012 case from the District of Maine, now final.
Bailey is a journalist and campaign consultant who put up an anonymous internet site critical of Cutler, an
independent who
lost the Maine governor's race by 1.7%. Bailey had been press secretary to Independent Maine governor Angus King.
Cutler is a high-powered lawyer and a former white house official.
Cutler complained to the Commission, a board of speech police. After testimoney from Cutler, the ACLU, and EFF,
the board fined Bailey the statutory maximum of $200. Bailey appealed, Cutler intervened and removed the case
to federal court, which upheld the fine.

The court's analysis is strongly influenced by Citizens United and NOM v McKee. McKee chairs the commission.

There are numerous areas where it is a close case, and the court makes several errors. I have a strong bias
in favor of defendant, and my analysis may be colored by that bias.

Problems with the case include:
A. Jurisdiction, venue, comity, and preemption - can Maine rule the internet, or is that a task for congress?
B. There is no mention at all of Talley v California, the landmark case establishing 1st A protection
for anonymous speech..
C. The court's attempts to legally distinguish McIntyre are weak.
D. There appears to be no express advocacy, as required by statute,and there is no analysis in the opinion.
E. the court fails to address defendant's state constitutional free speech claim.
The court does not mention Maine precedent protecting anonymous speech.
F. The decision is on cross-motions for summary judgment, but a reasonable jury could find threats and retaliation
sufficent to invoke a SWP type as-applied exemption. There's an interesting claim that
the burden of proof for exemption for disclaimers is not as high as for disclosure.
G. The opinion mixes up the concepts of disclaimers and disclosure, resulting in overreliance on Valeo.
H. D's argument that he is entitled to the press exemption on equal protection grounds is stronger than the court gives credit for.
Perhaps the court deferred too much to the agency, instead of using the constitutional avoidance principle.

The central organizing principles of American government are that it is a federal system with a
constitutional democratic republic.
Instead of relying on a heredity monarchy, we have leaders chosen at regular elections after free and open debate.
Both federal and state constitutions protect the process, including free speech provisions in the first amendment
and the state bills of rights,and the right to trial by jury. In 17(xx) Peter Zenger was tried for printing
anonymous books critical of the royal governor of pennysvlvania. A jury refused to convict him. Popular support
for the verdict later resulted in the adoption of the First and Seventh Amendments, as well as jury nullification
clauses for speech crimes in some 27 state constitutions. Free speech is a characteristic of a civilized society,
but it is also needed to have elections that are meaningful instead of form without substance.

This heritage is now under attack by the Maine Ethics Commission, the First Circuit,and the Supreme Court.
Bailey wrote on his site that Cutler is unfit to be governor. Based on this lawsuit, I am inclined to agree.
Cutler's attack on his critic Bailey demonstrates why anonymity is so needed. Without it, speech is chilled.
Wikileaks and 4chan.com's legion of anonymous are examples of how citizens are using the Internet as an
Army of Davids, speaking truth to power. Bullies like Cutler are uncomfortable in this environment,
so they look to the star chamber and the inquisition to silence thier critis.
I heard about this case a few days ago, via Rick Hasen and Richard Winger, and I've been looking into it in my spare time.
Some notes follow.

==

notes on cutler files

1 does maine have jurisdiction over the nternet?
problem of multiple and contradictory regulations.
see aclu v reno

2. cutler intervened and removed. when can an intervenor remove? never seen that before.

3. case is a ruling on summary j for p. were there any facts in dispute?

4 no ruling on state con claim.

5 no delegation to agency to expand beyond express advocacy. the agency's operating definition is ultra vires.

678 main claim: speech protected
other claims: de minimus, problem with selectivity of which media are exampt. content-based regulation of core political
speech

9 The disclosure requirements also apply to
an expenditure made for a communication that clearly identifies a candidate and
that is disseminated closer to an election to influence that election. 21-A M.R.S.A. §
1014(2-A).6  - maybe no express advocacy requirement?

10 Bailey was press secretary for governor Angus King at one time.

11. Bailey has established facts entitling him to a Socialist Workers type as-applied exemption from disclosure.
He reasonably suspected he would encounter harassment from Cutler, which turned out to be true. He reasonably
suspected that he would encounter offical harassment, which turned out to be true.
His employee, perhaps all of his work force, quit as a result of the harassment.
He received threatening phone calls. the facts are insufficent on this point to warrant summary judgment for plaintiff.

12.  fails to mention Talley, and starts with Valeo, which is not on point. Mixed up disclosure and disclaimers.

13 because the court acts as if it unaware of Talley, it misunderstands McIntyre. The issue in McIntyre is whether there is an elections exception to the rule of Talley that the governemnt cannot require disclaimers.

In Mcintyre, the Ohio Supreme Court had held that under Valeo the lax scutiny standard applied. The US Supreme Court reversed,
 and found that sctrict scutiny applies. McIntyre has not been overruled, by CU or any other case. It has been narrowed
by CU, which created an elections exception for corporations.

13a the statute was not found unconstitutional because it was overbroad. it was unconstitutional because it violated the
freedom of speech,
which under Talley includes the freedom to speak anonymously, as Peter Zenger had done in the 1700s. Zenger's case is the forerunner of the First Amendment.
The First Amendment has always been about the right to anonymously criticize candidates for governor, such as Cutler.

13b Margaret McIntyre was not a lone gunman. She was part of a group of some 30 people who had twice resisted
a tax increase. Some were arrested for speaking out, others were threatened, and McIntyre was fined. She was assisted,
among others, by her son, the son's girlfriend, her husband, and her lawyers.
The decision in McIntyre was not to create a de minimus exception or a little old lady exception. It was to find
that anonymous electoral speech is as protected under the first amendment as other kinds of political speech are - strictly.

14 Bailey was fined $200 for speaking truth to power.

15 Striesand effect - I didn't know who Cutler was before he brought this complaint. now i think he's a bully and a jerk.
The Cutler files may or may not have cost him the election. He lost by about 2% of the vote, 1.7. that tends to show how critical this info was. critical as in important.

"It is a narrowly drawn expenditure-based law dealing with express advocacy of candidates rather than communications related to ballot initiatives.  False -the ohio statute was about candidates, as were the cases McIntrye cited with approval - White, Dennis, Duryea.

"Second, Bailey was expressly advocating the defeat of a candidate for Governor shortly before an election". This has not been established; the opinion cites no example of express advocacy. Statements such as "Cutler is unfit for office" are not express advocacy; there are no "magic words" or exhortation to vote.

"Third, the Plaintiff is no Mrs. McIntyre" McIntyre invalidated the Ohio statute for all speakers, not just little oldd ladies. The rich, as well as  the poor, are protected by the constitution.

Neither Talley nor McIntyre acted wholly independently, not did Daisy Bates. It is not legally significant to the holding in McIntyre that there is no elections exception to Talley.

"The balance does not tip in favor of a high-profile political actor who
wishes, on the eve of an election, to criticize a gubernatorial candidate
anonymously."

Here, the court substitutes its own judgment for the binding holdings of cases such as
McIntyre, Watchtower, Wooley, Talley, Riley, Tornillo.

The court finds, erroneously, that Bailey has not been subjected to threats of reprisals sufficent to meet the standards of NAACP,  Socialist Workers, Buckley v Valeo, and CU. But Bailey makes an interesting argument, one of first impression as far as I know. He argues that the threshold for exemption for disclaimers is or should be less than for disclosure. This seems reasonable. The equities are that he's engaged in anonymous speech,
which has been protected for 50 years, whether or not it still is, his expenditures are somewhat de minimus, not reaching the threshold for disclosure, and he has some evidence of threats, harassment and retaliation, both by Cutler and the State of Maine, and by anonymous callers, resulting in his staff quitting.
Taken together, the balance tips in his favor. But I do not know what is the proper standard, and whose thumb is on the scale. Norman v Reed may be applicable here, as Justice Thomas argued concurring in Buckley v ACLF (1999.) It is a severe burden when those engaging in core political speech are subjected to investigation at the behest of their enemies and then fined.

20. equal protection claim:
there is a state constitutional equal protection claim here. the court treats it as lockstep, but it would
interesting to see if there are any onpoint state cases.

  “No person shall be . . . denied the equal protection of the laws, nor be denied the enjoyment of that
person’s civil rights or be discriminated against in the exercise thereof.”


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