Bailey v. Maine Comm'n on Governmental Ethics & Election Practices

• Decision Date: 30 September 2012
• Docket Number: No. 1:11–cv–00179–NT.,1:11–cv–00179–NT.
• Citation: 900 F.Supp.2d 75
• Parties: Dennis BAILEY, Plaintiff, v. State of MAINE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES, Defendant, and Eliot Cutler, Intervenor–Defendant.
• Court: U.S. District Court — District of Maine

900 F.Supp.2d 75

Dennis BAILEY, Plaintiff,

v. State of MAINE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES, Defendant, andEliot Cutler, Intervenor–Defendant.

No. 1:11–cv–00179–NT.

United States District Court, D. Maine.

Sept. 30, 2012.

Ellen M. Palminteri, Bernstein Shur Sawyer & Nelson, John M.R. Paterson, Bernstein, Shur, Zachary L. Heiden, Maine Civil Liberties Union, Portland, ME, for Plaintiff.

Gregory Im, Office of the Attorney General, Phyllis Gardiner, Maine Attorney General's Office, Augusta, ME, for Defendant.

David M. Kallin, Melissa A. Hewey, Drummond Woodsum, Portland, ME, for Intervenor–Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

NANCY TORRESEN, District Judge.

INTRODUCTION

On January 31, 2011, the Maine Commission on Governmental Ethics and Election Practices (the “Commission”) fined the Plaintiff, Dennis Bailey, $200 for failing to provide his name and address on “the Cutler Files,” his anonymous website advocating the defeat of gubernatorial candidate Eliot Cutler. The Commission found Bailey in violation of 21–A M.R.S.A. § 1014, which requires that election advocacy communications: (1) state the name and address of the person financing the communication; and (2) state whether the communication is authorized by a candidate. The Plaintiff appealed the Commission's action in Cumberland County Superior Court pursuant to Maine Rule of Civil Procedure 80C and 5 M.R.S.A. § 11002. Pursuant to Rule 80C(i), the Plaintiff joined three independent constitutional claims challenging section 1014 as applied to him. He claims that section 1014' s attribution and disclaimer requirements: (1) impermissibly burden his right to speak anonymously; (2) discriminate against him as a citizen journalist and internet news source; and (3) are unconstitutional as applied to his de minimis expenditure. Eliot Cutler intervened, removed the case to this Court, and filed for summary judgment. Shortly thereafter, the Plaintiff and the Commission filed cross-motions for summary judgment. These three motions are now before the Court. For the following reasons, the Plaintiff's Motion for Summary Judgment is DENIED and the Defendants' Motions for Summary Judgment are GRANTED.

I. Background

A. Relevant Provisions of 2010 Maine Election Law

The Plaintiff's suit is based on the applicationof Maine's 2010 ¹ disclosure requirements ² to the Cutler Files website. The disclosure requirements of 21–A M.R.S.A. § 1014(2) apply to expenditures ³ not authorized by a candidate,⁴ financing communications ⁵ “expressly advocating the election or defeat of a clearly identified candidate.” 21–A M.R.S.A. 1014(1). If in written form, these communications must contain the words “NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE” (the disclaimer requirement) and must provide the name and address of the person who made or financed the expenditure for the communication (the attribution requirement). 21–A M.R.S.A. § 1014(2). 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

Section 1012 contains a press exemption which excludes from the definition of “expenditure,” “any news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper, magazine or other periodical publication, unless the facilities are owned or controlled by any political party, political committee, candidate or candidate's immediate family.” 21–A M.R.S.A. § 1012(3)(B)(1).

A person making independent expenditures aggregating in excess of $100 during an election must file a detailed, itemized report with the Commission with a statement made under oath or affirmation stating whether the expenditure was made in cooperation with a candidate. 21–A M.R.S.A. § 1019–B.

Section 1014(4) permits fines of up to $200 for violations of section 1014 within twenty days prior to an election and fines of up to $100 for violations made outside of twenty days prior to an election that are not corrected within 10 days of notice of the violation. 21–A M.R.S.A. § 1014(4).

B. Facts

1. The 2010 Election and the Cutler Files Website

The Plaintiff, Dennis Bailey, is a well-known figure in Maine state politics and the owner and principal of Savvy, Inc., a public relations firm, which he founded in 2000, and which describes itself as “Maine's premier public relations firm offering professional expertise in media and public relations, crisis communications, political campaign management, speechwriting and more.” Defendants' Joint Statement of Material Facts ¶ 5 (“DJSMF”) (Doc. 70). Bailey owns and controls a personal blog called “SavvySpin” on which he periodically posts news and commentary. The Savvy, Inc. website contains a link to the “SavvySpin” blog.

Bailey has a degree in journalism from the University of Maine and has worked in both journalism and politics. Bailey worked as a reporter for several Maine newspapers and as a freelance reporter for several national publications. In the '90s, Bailey worked as press secretary for Maine U.S. Congressman Tom Andrews; press secretary for Maine gubernatorial candidate Tom Allen; press secretary and political advisor for Angus King during his first campaign for governor; and press secretary, policy advisor, and speech writer for Governor King after the election. In September of 2009, Bailey was hired as a political consultant by the Rosa Scarcelli gubernatorial campaign. The Rosa for Maine campaign paid Bailey a total of $33,000 for his services in the primary election campaign.

In late summer of 2009, when Scarcelli's husband Thomas Rhoads ⁷ learned that Eliot Cutler was going to enter the race for governor, he began downloading negative articles on Cutler from the internet. In October of 2009, Rhoads drafted a document entitled “Top Ten Eliot Cutler Vulnerabilities,” which he emailed to Bailey.

Scarcelli lost the Democratic primary on June 8, 2010, but Cutler remained in the race as an independent. Following Scarcelli's loss, Scarcelli and Rhoads tried unsuccessfully to sell Rhoads's research to Democratic gubernatorial candidate Libby Mitchell's campaign for $30,000.⁸ After Scarcelli's primary defeat, independent gubernatorial candidate Shawn Moody hired Bailey to work for his campaign.⁹ Moody's campaign paid Bailey $35,000 for his services during the general election.

In July of 2010, Bailey and Rhoads discussed posting their research on Cutler on an anonymous website. Bailey created a mockup of what was to become the Cutler Files website, which included content written by Rhoads and Bailey. Bailey e-mailed the Cutler Files mockup to Rhoads on July 15, 2010 and spent about three days at the beginning of August creating the Cutler Files website using software on his computer.

On August 4, 2010, Bailey registered a domain name, www. cutlerfiles. com, and paid the registration fee and the fee for two months of web hosting through Savvy, Inc. The Cutler Files website became publicly accessible on August 30, 2010. It did not include a statement identifying the name of the person who made or financed the website or a statement that the website was not authorized by any candidate.

On September 9 or 10, 2010, the following statement appeared on the bottom of the Cutler Files home page:

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 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.

DJSMF ¶ 135. The statement included contact information for Waterville, Maine attorney Daniel Billings. The disclaimer “NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE” also appeared at this time on the bottom of the home page and on several other pages of the site.

The parties dispute how frequently Bailey added content to the website or otherwise changed the site. However, the parties agree that the content was complete as of September 29, 2010, when the Cutler Files website consisted of the home page and nine additional pages on different topics related to Cutler. On the home page of the Cutler Files in place as of September 1, 2010, the website stated:

Over the next several weeks, THE SECRET FILE ON ELIOT CUTLER will reveal the facts about his life, facts you'll find nowhere else, to help voters see the full picture of the man—his arrogance and ego, his ties to big corporations and foreign countries and how he has spent a lifetime working directly against the interests of Maine and the US. You'll see why Cutler is unfit to be Maine's next governor.¹⁰

DJSMF ¶ 129. When the website content was complete, the home page had links to the nine additional topics, which were entitled: “The Bangor Bison,” “Cutler in Maine,” “Saying ‘NO’ at OMB,” “Cutler in DC,” “China's Lobbyist,” “The Thornburg Mess,” “Eliot's Fantasy,” “Reward Offered,” and “Cutler in Long Underwear.”

The Cutler Files website was discontinued on October 29, 2010, four days before the November 2, 2010 general election for governor. The monthly web hosting fee for November 2010 would have been due on October 29, 2010. Defendants' Joint Statement of Additional Material Facts (“JSAMF”) ¶ 202 (Doc. 82). During the two months in which the Cutler Files website was publicly accessible, visitors to the site made 46,989 page requests.

After it became public that Bailey had created the Cutler Files website, ¹¹ Bailey received three or four anonymous voicemail messages on his office phone. Bailey reports that his secretary quit after he went public as the Cutler Files creator because “[t]he situation became so uncomfortable and intolerable.” Bailey Declaration ¶ 50 (Doc. 73–1). Bailey testified that in the voicemails:

They called me names, jerk,...