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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  November 24, 2009
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Topic category:  Government/Politics

Andrew Breitbart Should Read and Rely on the Honorable Justice Clarence Thomas

God bless Justice Thomas!

The late Senator Daniel Patrick Moynihan was right about people being entitled to their own opinions but not their own facts.

People are not entitled to their own laws either.

True conservatives and other honorable persons respect the law.

Criminals and hypocrites don't.

Andrew Breitbart concluded his latest article at BigGovernment.com, "ACORN Scandal. Part 2: The Evidentiary Phase" (November 23, 2009), with a ringing declaration and a generous offer:

"We are a nation of laws. The Attorney General of California and the attorney general of the United States have made a solemn oath to uphold these laws. Attorney General Holder and Attorney General Brown are arguably the two most powerful law enforcement officers in the country.

"We are willing to facilitate copies being sent of all the documents recovered from the public dumpster outside the ACORN office and forward these to Attorneys General Brown and Holder. There are reasons ACORN dumped these documents before the scheduled visit by Brown’s office. The question millions want to know, now that ACORN has again brazenly mocked our nation’s laws: Will Holder and Brown do their jobs?"

We ARE "a nation of laws" that should be upheld and our legal generals should do their jobs.

Unfortunately for those responsible for the "Pimp and Pro" ACORN sting, the laws of California, Maryland and Pennsylvania outlawing recording without the consent of all parties to a conversation are constitutional laws to be upheld.

After reading an article of mine partially title "Jerry Brown v. Andrew Breitbart," Breitbart posted a couple of tweets on Twitter:

"MEDIAMUTTERS meet GAYNOR: While u disagree on politics, your shared desire to nail me creates many possibilities. http://tinyurl.com/yjmfbfp 8:47 AM Nov 16th from web"

"GAYNOR: Oh & I had nothing to do w production of videos. What do U know that H, J & I don't? Give it your best. http://tinyurl.com/yjmfbfp 9:01 AM Nov 16th from web"

Breitbart's right about Media Matters and me disagreeing on politics, but pretending that I want to "nail" him. I want corruption and criminality exposed and punished lawfully, not lawlessly. As a lawyer admitted to practice more than 36 years ago, I probably know more about the law that "H" (Hannah Giles, 20), "J" (James O'Keefe, 25) and "I' (Breitbart, 40).

For example, I know that neither professional nor amateur journalists are above the law and that, much as I (and others) wish that one-party consent to recording was lawful across America, it isn't.

On November 10, 2009, on Twitter, Breitbart posted: ""I nominate me for best Twitter tweeter. I've gone through all my tweets & am pretty sure I'm the best."

Lack of self-confidence is not among Breitbart's problems.

Legal ignorance and/or arrogance are.

On August 28, 2009, Breitbart tweeted: "God bless, Clarence Thomas."

On that, we agree!

Unfortunately, when it comes to respecting the law, Breitbart is no Justice Thomas.

IF Breitbart's claim that he had "nothing to do" with the production of any of the "Pimp and Pro" ACORN videos is true, then it was lawful for him to publish them.

BUT, if he was not "otherwise innocent," it apparently was not and if Justice Thomas's view had been the majority view in Bartnicki v. Vopper, 532 U.S. 514 (2001), there would not be a constitutional right for Breitbart (and Fox News) to rely on in publishing them.

Bartnicki involved both the federal and Pennsylvania laws against surreptitious recording.

The United States Supreme Court held under the Constitution that a publisher who 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.

Footnote 19 to the majority opinion 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)."

That's NOT good for intrepid investigators Hannah Giles and James O'Keefe, but it's great news for "otherwise innocent" publishers.

Justice Thomas joined the late Chief Justice Rehnquist and Justice Scalia in dissenting, because they believed that the majority had NOT been protective enough of privacy and had interpreted freedom of the press too broadly!

They wrote: "The Constitution should not protect the involuntary broadcast of personal conversations. Even where the communications involve public figures or concern public matters, the conversations are nonetheless private and worthy of protection. Although public persons may have forgone the right to live their lives screened from public scrutiny in some areas, it does not and should not follow that they also have abandoned their right to have a private conversation without fear of it being intentionally intercepted and knowingly disclosed."

God bless Justice Thomas!

Excerpts from the dissenting opinion:

"Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations. In an attempt to prevent some of the most egregious violations of privacy, the United States, the District of Columbia, and 40 States have enacted laws prohibiting the intentional interception and knowing disclosure of electronic communications."

"The Court holds that all of these statutes violate the First Amendment insofar as the illegally intercepted conversation touches upon a matter of 'public concern,' an amorphous concept that the Court does not even attempt to define. But the Court's decision diminishes, rather than enhances, the purposes of the First Amendment, thereby chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day."

"This concern for privacy was inseparably bound up with the desire that personal conversations be frank and uninhibited, not cramped by fears of clandestine surveillance and purposeful disclosure: 'In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.' President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 202 (1967).

"To effectuate these important privacy and speech interests, Congress and the vast majority of States have proscribed the intentional interception and knowing disclosure of the contents of electronic communications. 2 See, e. g., 18 U. S. C. § 2511(1)(c) (placing restrictions upon 'any person who ... intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication').

"The Court correctly observes that these are 'content neutral law[s] of general applicability' which serve recognized interests of the 'highest order': 'the interest in individual privacy and ... in fostering private speech.'... It nonetheless subjects these laws to the strict scrutiny normally reserved for governmental attempts to censor different viewpoints or ideas.... There is scant support, either in precedent or in reason, for the Court's tacit application of strict scrutiny.

"A content-neutral regulation will be sustained if ''it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."' Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 662 (1994) (quoting United States v. O'Brien, 391 U. S. 367, 377 (1968)).

"Here, Congress and the Pennsylvania Legislature have acted '"without reference to the content of the regulated speech."'... There is no intimation that these laws seek 'to suppress unpopular ideas or information or manipulate the public debate' or that they 'distinguish favored speech from disfavored speech on the basis of the ideas or views expressed.'... The antidisclosure provision is based solely upon the manner in which the conversation was acquired, not the subject matter of the conversation or the viewpoints of the speakers. The same information, if obtained lawfully, could be published with impunity. Cf. Seattle Times Co. v. Rhinehart, 467 U. S. 20, 34 (1984) (upholding under intermediate scrutiny a protective order on information acquired during discovery in part because 'the party may disseminate the identical information ... as long as the information is gained through means independent of the court's processes'). As the concerns motivating strict scrutiny are absent, these content neutral restrictions upon speech need pass only intermediate scrutiny.

"The Court's attempt to avoid these precedents by reliance upon the Daily Mail string of newspaper cases is unpersuasive. In these cases, we held that statutes prohibiting the media from publishing certain truthful information--the name of a rape victim..., the confidential proceedings before a state judicial review commission..., and the name of a juvenile defendant... violated the First Amendment. In so doing, we stated that 'if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.'...Neither this Daily Mail principle nor any other aspect of these cases, however, justifies the Court's imposition of strict scrutiny here.

"Each of the laws at issue in the Daily Mail cases regulated the content or subject matter of speech. This fact alone was enough to trigger strict scrutiny, see United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) ('[A] content-based speech restriction ... can stand only if it satisfies strict scrutiny'), and suffices to distinguish these antidisclosure provisions. But, as our synthesis of these cases in Florida Star made clear, three other unique factors also informed the scope of the Daily Mail principle.

"First, the information published by the newspapers had been lawfully obtained from the government itself....

"Second, the information in each case was already 'publicly available,' and punishing further dissemination would not have advanced the purported government interests of confidentiality....

"Third, these cases were concerned with 'the "timidity and self-censorship" which may result from allowing the media to be punished for publishing certain truthful information.'... But fear of 'timidity and self-censorship' is a basis for upholding, not striking down, these antidisclosure provisions: They allow private conversations to transpire without inhibition. And unlike the statute at issue in Florida Star, which had no scienter requirement, ...these statutes only address those who knowingly disclose an illegally intercepted conversation. They do not impose a duty to inquire into the source of the information and one could negligently disclose the contents of an illegally intercepted communication without liability.

"In sum, it is obvious that the Daily Mail cases upon which the Court relies do not address the question presented here. Our decisions themselves made this clear: 'The Daily Mail principle does not settle the issue whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.'... "

"Undaunted, the Court places an inordinate amount of weight upon the fact that the receipt of an illegally intercepted communication has not been criminalized.... But this hardly renders those who knowingly receive and disclose such communications 'law-abiding,'.., and it certainly does not bring them under the Daily Mail principle. The transmission of the intercepted communication from the eavesdropper to the third party is itself illegal; and where, as here, the third party then knowingly discloses that communication, another illegal act has been committed. The third party in this situation cannot be likened to the reporters in the Daily Mail cases, who lawfully obtained their information through consensual interviews or public documents.

"These laws are content neutral; they only regulate information that was illegally obtained; they do not restrict republication of what is already in the public domain; they impose no special burdens upon the media; they have a scienter requirement to provide fair warning; and they promote the privacy and free speech of those using cellular telephones. It is hard to imagine a more narrowly tailored prohibition of the disclosure of illegally intercepted communications, and it distorts our precedents to review these statutes under the often fatal standard of strict scrutiny. These laws therefore should be upheld if they further a substantial governmental interest unrelated to the suppression of free speech, and they do.

"Congress and the overwhelming majority of States reasonably have concluded that sanctioning the knowing disclosure of illegally intercepted communications will deter the initial interception itself, a crime which is extremely difficult to detect....

"...the Court faults Congress for providing 'no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions,'..., and insists that 'there is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing to engage in surreptitious interceptions,'.... It is the Court's reasoning, not the judgment of Congress and numerous States reg'ding the necessity of these laws, which disappoints.

"...Although we must nonetheless independently evaluate ...congressional findings in performing our constitutional review, this 'is not a license to reweigh the evidence de novo, or to replace Congress' factual predictions with our own.'...

"The 'dry-up-the-market' theory, which posits that it is possible to deter an illegal act that is difficult to police by preventing the wrongdoer from enjoying the fruits of the crime, is neither novel nor implausible. It is a time-tested theory that undergirds numerous laws, such as the prohibition of the knowing possession of stolen goods.... We ourselves adopted the exclusionary rule based upon similar reasoning, believing that it would 'deter unreasonable searches,'..., by removing an officer's 'incentive to disregard [the Fourth Amendment],'....

"The same logic applies here and demonstrates that the incidental restriction on alleged First Amendment freedoms is no greater than essential to further the interest of protecting the privacy of individual communications. Were there no prohibition on disclosure, an unlawful eavesdropper who wanted to disclose the conversation could anonymously launder the interception through a third party and thereby avoid detection. Indeed, demand for illegally obtained private information would only increase if it could be disclosed without repercussion. The law against interceptions, which the Court agrees is valid, would be utterly ineffectual without these antidisclosure provisions."

"At base, the Court's decision to hold these statutes unconstitutional rests upon nothing more than the bald substitution of its own prognostications in place of the reasoned judgment of 41 legislative bodies and the United States Congress. The Court does not explain how or from where Congress should obtain statistical evidence about the effectiveness of these laws, and '[s]ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.'... Reliance upon the 'dry-up-the-market' theory is both logical and eminently reasonable, and our precedents make plain that it is 'far stronger than mere speculation.'....

"These statutes also protect the important interests of deterring clandestine invasions of privacy and preventing the involuntary broadcast of private communications....

"These statutes undeniably protect this venerable right of privacy. Concomitantly, they further the First Amendment rights of the parties to the conversation. 'At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.'... By 'protecting the privacy of individual thought and expression,'..., these statutes further the 'uninhibited, robust, and wide-open' speech of the private parties.... Unlike the laws at issue in the Daily Mail cases, which served only to protect the identities and actions of a select group of individuals, these laws protect millions of people who communicate electronically on a daily basis. The chilling effect of the Court's decision upon these private conversations will surely be great....

"...The Court concludes that the private conversation between Gloria Bartnicki and Anthony Kane is somehow a 'debate .... worthy of constitutional protection.'... Perhaps the Court is correct that '[i]f the statements about the labor negotiations had been made in a public arena-during a bargaining session, for example they would have been newsworthy.'... The point, however, is that Bartnicki and Kane had no intention of contributing to a public 'debate' at all, and it is perverse to hold that another's unlawful interception and knowing disclosure of their conversation is speech 'worthy of constitutional protection.' Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) ('[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say"'). The Constitution should not protect the involuntary broadcast of personal conversations. Even where the communications involve public figures or concern public matters, the conversations are nonetheless private and worthy of protection. Although public persons may have forgone the right to live their lives screened from public scrutiny in some areas, it does not and should not follow that they also have abandoned their right to have a private conversation without fear of it being intentionally intercepted and knowingly disclosed.

"The Court's decision to hold inviolable our right to broadcast conversations of 'public importance' enjoys little support in our precedents....

"Surely 'the interest in individual privacy,'..., at its narrowest, must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations. The Court subordinates that right, not to the claims of those who themselves wish to speak, but to the claims of those who wish to publish the intercepted conversations of others. Congress' effort to balance the above claim to privacy against a marginal claim to speak freely is thereby set at naught."

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 www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org 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 gaynormike@aol.com.


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Copyright © 2009 by Michael J. Gaynor
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