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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  November 12, 2009
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Topic category:  Government/Politics

"Publisher" Breitbart's "Coup" Strategy, Polygraph Challenge and Big Government Debut

In the Superman story, Perry White is the editor-in-chief of The Daily Planet, Lois Lane is the beautiful investigative reporter and Jimmy Olson is the photojournalist. If Ms. Giles played Lois Lane and O'Keefe played Jimmy Olson, was Breitbart "Perry White" and were "Lois" and "Jimmy" freelancing or on assignment?

In "Drudge's Henchman Hits Big Time With Book" (November 10, 2009), by Leon Neyfakh, which appeared in The New York Observer, Andrew Breitbart is quoted as saying with respect to his upcoming book, Thinking Big: "It’s going to be a call to arms saying, ‘Hey, look, if you want to take it back, you’re gonna have to take it back yourself. These people create the perception that they’re working their asses off. … but they’re incredibly lazy, and they’ve been sitting on major stories for years and years and years. They’ve been able to maintain a false narrative, and we’re gonna say, ‘Guess what, we get to have a coup d’état ourselves.’”

Breitbart's definitely right about the liberal media establishment "sitting on major stories" and a "coup d'etat" seems fitting in these dire circumstances, but conducting a successful "coup" in America poses significant political and legal problems as well as offers opportunities for change and profit.

How far has Breitbart been willing to go, or will he be willing to go, to have his "coup" succeed and to promote his enterprises? Did he or will he put himself in legal jeopardy in pursuing his "coup"? Did he or will he use others to stay safe himself? Or did or will God do what Breitbart needed or will need to succeed?

On November 10, 2009, on Twitter, Breitbart issued this challenge: "Polygraph Challenge: MEDIAMUTTERS can give me a lie detector test if I can administer one to MEDIAMUTTER's & ACORN/SEIU's John Podesta."

I love it!

America would be much more knowledgeable if both men takee detector tests, the right questions are asked and the results are shared with the public.

Perhaps then we could be sure that James O'Keefe suddenly appeared at Breitbart's house in Westwood, California with the sensational "Pimp and Pro" ACORN story.

Don't expect Podesta to accept Breitbart's challenge, but let's imagine the possibilities if these men did take lie detector tests.

What would Podesta say if asked whether ACORN has served as an unofficial arm of the Democrat Party?

What would Podesta say if asked whether ACORN/Project Vote illegally coordinated with the Obama presidential campaign in 2007 and 2008?

What would Breitbart say if asked whether he was involved in the "Pimp and Pro" ACORN sting before Hannah Giles and O'Keefe visited the ACORN offices that they visited last summer?

What would Breitbart say if asked whether Ms. Giles and/or O'Keefe knew in advance that surreptitious recording is illegal in California? Or Pennsylvania? Or Maryland?

Did the videos essentially fall in his lap right after all the surreptitious videotaping was done...or was Breitbart involved earlier with the sensational story that opened his Big Government group blog?

Ms. Giles claimed full credit for the sting idea on Hannity: ""Well, Sean, it's amazing what girls think about when they are jogging. And that was just something that popped into my head. I had never seen an ACORN office, I really didn't even know that they existed and I jogged into the wrong part of town, saw some homeless people and street ladies and I put two and two together when I turned around to get back into a safe neighborhood. And it's like — what if these people went into ACORN — a prostitute and what would come from that? No bills, no nothing — would they get a house? Could they start a business? So we put it to the test."

In a New York Post article titled "Duo who turned this trick" and dated September 16, 2009, Lachlan Cartwright and Jeremy Olshan reported:

"After Giles proposed the ACORN video-sting idea, O'Keefe...pounced on it.... "After six weeks of research, Giles said they scavenged together their costumes from friends, except for the pimp coat, which was on loan from O'Keefe's grandmother.

"In total, the project cost them $1,300.

"They did the job entirely on their own and paid for it themselves, they said."

If true, that's fantastic for Breitbart, Big Government and Fox News.

That would mean that Breitbart and Fox News lawfully reported the story, even if Ms. Giles and O'Keefe later are prosecuted and convicted in two or three states for four or five felonies.

In Bartnicki v. Volper, 532 U.S. 514 (2001), a case that involved both the federal and Pennsylvania laws against surreptitious recording, the United States Supreme Court held that a publisher who has lawfully obtained information from a source who obtained it unlawfully may not be punished by the government for the ensuing publication based on the defect in a chain.

Bottom line: Breitbart, BigGovernment and Fox News appear to be safe, because, in the words of the majority opinion in Bartnicki v. Volper, the interest in "removing an incentive for parties to intercept private conversations--does not justify applying" a statute prohibiting surreptitious recording "to an otherwise innocent disclosure of public information."

Of course, if and/or Fox News are NOT "otherwise innocent," then Ms Giles and Mr. O'Keefe will have company on the legal hot seat.

Neither media organizations nor professional or amateur journalists or filmmakers are above the law.

Footnote 19 to the majority opinion in Bartnicki v. Volper: states: "Our holding, of course, does not apply to punishing parties for obtaining the relevant information unlawfully. 'It would be frivolous to assert-and no one does in these cases-that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.' Branzburg v. Hayes, 408 U. S. 665, 691 (1972)."

Who is Breitbart?

Breitbart on Breitbart: "Andrew Breitbart is publisher of the news portals and In January 2009, he launched Big Hollywood, a group blog off of on Hollywood and politics from the center/right perspective. His latest group blog endeavor, Big Government, launched in September. Breitbart co-wrote the best-selling attack on celebrity culture, Hollywood, Interrupted. Andrew was also the primary developer for The Huffington Post."

The New York Observer article by Spencer Morgan titled "Andrew Breitbart Loves a Vast Right-Wing Conspiracy" and dated September 2, 2008 began: "His name may sound unfamiliar, but Andrew Breitbart has built a career helping to create the Drudge Report and the Huffington Post, while also overseeing his own news-aggregation site—and becoming prominent in a largely underground movement of conservatives in Hollywood. Next week he plans to launch a new site ( that will give voice to this rogue community in the entertainment industry."

A bit more than a year later, Breitbart launched another new site ( with the "Pimp and Pro" ACORN videos, shot in Breitbart's California as well as east coast cities (Philadelphia, Baltimore, Washington, D.C. and New York).

Wikipedia on Breitbart: "Andrew Breitbart (born February 1, 1969) is an American commentator for the Washington Times, author, and an occasional guest commentator on various news programs. He may be best-known for serving as an editor for the Drudge Report website. He was a researcher for Arianna Huffington, and was employed by her to assist in the launch of her website, The Huffington Post. He currently runs his own news portal,, and two other sites: Big Hollywood, and Big Government."

On September 10, 2009, in an article titled "New Political Blog Launches Thursday, Fox announced the coming of Big Government as follows:

"A conservative blogger and publisher who took on Hollywood earlier this year is setting his sights on the nation's political establishment.

" launched Thursday as a 'one-stop shop' for commentary and other political information, according to Andrew Breitbart, the site's founder.

"'This is speaking to the zeitgeist of the blogosphere that every story has an underlying relationship to what's going on in the Obama administration and how the Republican Party is going to regroup as it relates to issues of the expansion of government powers,' Breitbart told 'We are just now starting to vet the president and the people he's put into power.'

"Breitbart said the blog will offer a platform to those who respect the concepts of limited government, individual liberties and an 'adherence to the principals of our Founding Fathers.'"

Wikipedia on Breitbart and the "Pimp and Pro" ACORN story: "[Big Government] started by airing footage about the controversy regarding ACORN staffers in Baltimore who gave unethical advice concerning underage prostitution and tax-evasion on-tape to Hannah Giles and James O'Keefe. Within 24 hours of the video's release, the two women featured on the hidden camera were fired by ACORN over the incident. After the release of the second in the tape series, which targeted the Washington D.C. ACORN office, the U.S. Census Bureau severed its connection with ACORN, which had been scheduled to assist in the 2010 census. Five 'sting tapes,' with Hannah Giles portraying the 'prostitute' Kenya, and O'Keefe acting as her boyfriend/pimp, have been released; these feature the ACORN offices in Baltimore, Maryland, Washington, DC, Brooklyn, New York, and both San Bernardino and San Diego, California."

Subsequent to the writing of the Wikipedia item, a "sting tape" featuring ACORN's Philadelphia office was released.

In the Superman story, Perry White is the editor of The Daily Planet, Lois Lane is the beautiful investigative reporter and Jimmy Olson is the photojournalist. If Ms. Giles played Lois Lane and O'Keefe played Jimmy Olson, was Breitbart "Perry White" and were "Lois" and "Jimmy" freelancing or on assignment?

Will the whole truth prevail?

Will anyone go to jail?

Will the "coup" succeed or fail?

Time will tell who did good and who made out well.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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