LePage Cites First Amendment as Defense Against 'Blackmail' Allegations: Attorneys Weigh In

Jul 7, 2015

AUGUSTA, Maine - Maine Gov. Paul LePage has cited the First Amendment as a defense against allegations that he abused his authority in pressuring a private Maine charter school into firing Maine House Speaker Mark Eves, a political adversary.

Some attorneys are questioning the governor's rationale, but say he does have the chance to make a stronger case.

The First Amendment of the U.S. Constitution provides a number of open expression freedoms to Americans, but University of Maine Law School Professor Jim Burke says that threatening to withhold public funds as a means of punishing a member of the Legislature doesn't appear to be one of them.

Gov. Paul LePage's legal counsel, Cynthia Montgomery, has cited the governor's First Amendment protections against criticism of his handling of the Eves case. But Burke has his doubts.

"Sometimes you have to just make an argument, because you have to make an argument, because you have to make an argument," Burke says.

Burke says Montgomery's First Amendment defense may have been a preliminary response after hearing that Eves was weighing a possible lawsuit against the governor. Montgomery could not be reached for comment.

Federal courts have ruled against governors who have claimed immunity under the First Amendment for using their executive powers to retaliate against public officials and private citizens. But LePage continues to insist that his primary reasons for intervening in Eves hiring at the charter school have to do with Eve's  lack of qualifications for the $120,000-a-year job.

Burke says that, as chief executive, LePage has an obligation to act in the best fiduciary interests of state taxpayers and that that might be his strongest legal defense, if he can back up his claims about Eves qualifications.

"It's an argument that as we say in trade can probably be made with a straight face by a lawyer and without undue embarrassment," Burke says. "It doesn't mean it's a good argument, and it doesn't mean the court's going to buy it - you have to wait and see what the court ends up doing."

And LePage reiterates that position in his weekly radio message.

"Unlike prior presidents at Good Will-Hinckley, who hold advanced degrees in education administration and have long careers as educators, Speaker Eves' only qualification was being a politician in Augusta where he used his position to oppose charter schools and to threaten the existence of the very organization he sought to lead," LePage said.

Burke says LePage's biggest problem is that he undertook the alleged action that deprived Eves of his new job without following due process, and that could lay the groundwork for legal action by Eves.

Meanwhile, Zach Heiden, at the Maine Chapter of the American Civil Liberties Union, says if anyone deserves the protection of the First Amendment in the Hinckley case, it's Eves rather than the governor.

"Speaker Eves is the one who was expressing his views on a matter of public concern and then was punished for that," Heiden said. "That seems to me to be a more interesting and viable First Amendment theory."

As discussions over the possible legal outcome of the LePage-Eves incident continues into its third week, lawmakers have authorized their own investigation of the facts. The bipartisan Government Oversight Committee voted unanimously last week to begin a probe into the alleged withholding of funds by the governor.

Former Maine Attorney General James Tierney says it would be wise for all of the parties to wait and see what that investigation produces before weighing a defense.

"Constitutional analysis always depends on the facts," Tierney says. "I mean, what actually happened and until the legislative committee concludes its work, constitutional analysis by anyone on either side is premature."

The Government Oversight Committee is slated to meet at the State House July 17.