Response to Mr. Gaynor

Michael Gaynor, Esq., is a fellow ACORN watcher who often has valuable insights.

But it appears we disagree on something.

In a thoughtful column that arises out of something I wrote about the ACORN undercover video saga, Gaynor has criticized me for attacking state “wiretapping” laws that protect this nebulous concept known as privacy at the expense of press freedoms expressly protected by the First Amendment.

Sounding very much like a legal positivist or a gung-ho prosecutor, he writes, “The rule of law is sacrificed if criminal law is disregarded by even well-intentioned persons eagerly pursuing evidence of even much greater wrongdoing.”

While the rule of law is important, adherence to a manifestly unjust or unconstitutional law can be foolish, immoral, and bad for society.

I am ill-equipped to get into a legal argument with an attorney but as a student of American politics and government I have a sneaking suspicion that the extant two-party consent laws that Gaynor defends in a lawyerly way on federalist grounds, would fall on constitutional grounds if challenged in court — at least insofar as they conflict with press freedoms.

If specific aspects of “wiretapping” laws are unconstitutional, as I suspect they are, then the public interest is served by striking them down.

Gaynor suggests I don’t believe in federalism. As a libertarian-leaning conservative, nothing could be further from the truth.

I believe in federalism but that doesn’t mean states should be able to limit fundamental protections included in the nation’s sacred Bill of Rights. Freedom of the press, especially in matters pertaining to politics, is quite properly afforded great protection by the courts.

For all I know, challenges of “wiretapping” laws have already gone before the courts. Even if they have and such laws have been upheld, the modern trend is towards an expansive view of the First Amendment and this is a good thing. A law upheld decades ago might be struck down today. 

That’s all I’m saying.

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