ACLU sues to protect anonymous political speech in Maine

March 15, 2011   •  By Zac Morgan
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Given that the United States has a First Amendment, one might think that Maine’s government would not crush dissidents for speaking out against politicians during an election. Sadly, this is not the case, and the Maine Civil Liberties Union filed suit to stop the State’s speech suppression.

In the Pine Tree State, a gubernatorial candidate brought a dissident blog to heel for anonymously criticizing him. The candidate, Eliot Cutler, hauled the creators of the anti-Cutler blog “Cutler Files,” in front of the Maine Commission on Governmental Ethics and Election Practices. The blog cost exactly $91.38 to produce and maintain. The Commission fined the bloggers for anonymously speaking out against Cutler.  

Had the creators of the “Cutler Files” donated $91.38 to one of Cutler’s opponents, they could have done so completely anonymously. But in Maine it’s illegal to disseminate any independent campaign literature without listing your name, even if you’re just a pajamas-wearing blogger ranting against a candidate for governor.  

Of course, the Founding Fathers often published political pieces without signing their real name. John Jay, Alexander Hamilton, and James Madison famously wrote the Federalist Papers under the fake name Publius. Alexander Hamilton and James Madison engaged in a knock-down, drag-out political fight over President Washington’s Neutrality Proclamation under the respective pseudonyms of Pacificus and Helvidius.  

Could the same James Madison who wrote under pseudonyms really have supported crushing anonymous dissent? Not so, says Zachary Heidan, the legal director of the Maine Civil Liberties Union, who points out that “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… Sometimes anonymity is the only way someone can freely express themselves, and it needs to be scrupulously protected.”

Fortunately, the law of the land is on the bloggers’ side. The Supreme Court has offered the broadest First Amendment protection to political speech, and in 1995 declared that an Ohio statute that banned unsigned political leaflets was unconstitutional.

As Justice John Paul Stevens wrote for the Court in that case: “Anonymity is a shield from the tyranny of the majority… It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression-at the hand of an intolerant society.”  

The Maine case is an important reminder that Americans cannot trust politicians to devise regulations on campaign speech. The temptation to harass, suppress, and stomp out the cheapest dissent is simply to great for some members of the political class.

Zac Morgan

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