ELIOT CUTLERTRIES TO (AND SUCCEEDS AT) OUTLAWING A CRITIC'S WEB SITE
Last fall, anonymous critics of ELIOT CUTLER, an independent candidate for governor in Maine, unveiled a Web site called "The Cutler Files." The site hit below the belt, calling Cutler "a phony and a fraud," and even going so far as to say that "his foot-dragging and bureaucratic incompetence may have led to the deaths of 39 people" — a reference to the collapse of a Georgia dam in 1977, when Cutler was working in the federal Office of Management and Budget.
But Cutler wasn't satisfied merely to denounce the site or defend his record. Instead, he argued that the Cutler Files was an illegal exercise in political speech, and he demanded that Maine's Commission on Governmental Ethics and Election Practices do something about it. Cutler's reasoning: the site engaged in "express advocacy" for or against a candidate as defined by Maine law, and lacked the legally mandated disclaimer that the site was "not paid for or authorized by any candidate." (The disclaimer was later added.)
After an investigation of several months, the commission ruled that two people were behind the site, and that one of them had violated the disclosure law for not originally including the disclaimer. He was fined the maximum penalty of $200. Several days later, a Portland-based political consultant, Dennis Bailey, wrote on his blog that he was the person who had been fined.
"It was a short-lived Web site launched with all the best intentions that sort of backfired," he wrote, adding: "We stand behind everything we wrote on the Cutler Files. To this day, no one — not a reporter, an editor, or even Cutler himself — has contradicted a single statement on the Cutler Files."
And there the matter stood until March, when the Maine Civil Liberties Union (MCLU) sued the state on Bailey's behalf.
"James Madison would probably be shocked to discover that anonymous free speech is not protected by the First Amendment since he was the one who wrote it," said MCLU legal director Zachary Heiden in a statement posted on the MCLU's Web site. "Sometimes anonymity is the only way someone can freely express themselves, and it needs to be scrupulously protected."
Though Cutler gets the Muzzle, it should be noted that he was only taking advantage of his state's repressive laws governing political speech. Indeed, complaints brought before the Commission on Governmental Ethics and Election Practices were the subject of Muzzle Awards in 2007 and 2009 as well.
Some state officials, incredibly, don't think the law goes far enough. For instance, State Senator Nichi Farnham, a Bangor Republican, recently filed a bill that would increase the fine for nondisclosure from $200 to $5000.
But the solution to speech you don't like is more speech, not less. Cutler had every right to respond to Bailey's attacks. What he should not have had the right to do was use the power of government to punish him for those attacks.