Topic category:  Government/Politics

Ralph Waldo Emerson stated that "a foolish consistency is the hobgoblin of little minds...."

Sarah Palin obviously is being INconsistent when it comes to the misconduct of her Alaska Senate candidate, Joe Miller, and the write-in campaign of Alaska senior Senator Lisa Murkowski.

But...is it foolish inconsistency or smart politics, or hypocritical or justifiable?

You be the judge.

Palin's latest Facebook message to Murkowski is an attack designed to help Miller be elected next Tuesday to replace Murkowski.

"Lisa, are you going to shut down my Facebook page for writing this?

"by Sarah Palin on Saturday, October 30, 2010 at 12:20am

"Yesterday, Lisa Murkowski’s hired guns threatened radio host Dan Fagan, and more importantly, the station that airs Fagan’s show, with legal action for allegedly illegal 'electioneering.' The station, unlike Murkowski, who is flush with millions of dollars from vested corporate interests, does not have a budget for a legal defense. So it did what any small market station would do when threatened by Beltway lawyers charging $500 to $1000 an hour – they pulled Dan Fagan off the air.

"Does all this sound heavy handed? It is. It is an interference with Dan Fagan’s constitutional right to free speech. It is also a shocking indictment against Lisa Murkowski. How low will she go to hold onto power? First, she gets the Division of Elections to change its write-in process – a process that Judge Pfiffner correctly determined had been in place without change for 50 years. She is accepting financial support from federal contractors, an act that is highly questionable and now pending before the FEC. And today, she played her last card. She made it clear that if you disagree with her and encourage others to exercise their civic rights, she’ll take you off the air.

"The concept of 'electioneering' involves several issues, but typically refers to campaigning at the polls, which is appropriately banned. Under federal law, it can also mean paying for advertising on broadcast media during a federal election cycle, and it requires disclosures if done by groups and corporations. Fagan used satire to mock Murkowski’s write-in efforts and encouraged Alaskans to run as write-in candidates. That is not illegal. That is free speech.

"Individuals like Dan Fagan have a fundamental right to speak their minds without threats from the incumbent Senator from Alaska. It is hard to find a constitutional right Americans cherish more than the right to free speech. This was a right Joe Miller, as a decorated combat veteran – a tank commander tested in battle, was willing to die to defend. Dan Fagan has not always agreed with me, but I will gladly defend his right to speak freely on his radio show, which he has often used to criticize me. In fact, Fagan has actually used his radio show to attack and insult me, my husband, my children, and my family in just about every way possible. He was especially insulting to my son, who left for a war zone to defend Fagan’s right to attack our family. But when I was his governor, I never would have dreamed of threatening his right to free speech. I support him in this fight because this D.C. Beltway thuggery, as exemplified by Lisa Murkowski’s latest threat, is ruining our country. The powers that be want ordinary Americans to sit down and shut up and let the ruling class ride us right off the debt cliff we’re heading towards with Obama, Pelosi, and Reid steering the nation’s car. We can’t let them. Now is the time to put aside our past differences and stand up to the establishment powers.

"This whole episode confirms again why we need to elect Joe Miller. Lisa, you can sue me if you want (you won’t be the first). But I will not be intimidated from speaking my mind. Your intimidation just empowered us liberty-loving Alaskans. Are you really that out of touch?"

There are multiple problems with Palin's passionate pronouncement, both with what was said and unsaid.

First, Palin simply ignored the elephant in the room--the fact that Miller had just been publicly exposed as an admitted liar and cover upper who had been helping Palin when he abused his public office as an attorney and then covered up his actions and lied before be was caught. Palin did not say what she knew about his misconduct and when she first knew it, but it's apparent that Palin has given Miller a pass for his misconduct.

Second, the radio station, not Murkowski or the government, took Fagan off the air. Fagan's constitutional right to be free from governmental interference with his freedom of speech was not infringed. He does NOT have a constitutional right to appear on the radio station and if the radio station violated a contractual obligation to him, he has legal recourse.

Third, Palin presented it as appropriate for the Miller campaign to pursue legal action against Murkowski with the Federal Elections Commission but heavy handed and unconstitutional for the Murkowski campaign to assert an intention to pursue legal recourse. Both campaigns are entitled to pursue legal recourse.

Fourth, Palin appears to deal with Miller's "thuggery" problem by claiming heavy handedness and thuggery by the Murkowski campaign. Unfortunately for Palin and Miller, those claims are not substantiated. Palin misused the word "thuggery." A thug is "a common criminal, who treats others violently and roughly, often for hire" (http://en.wikipedia.org/wiki/Thug). Murkowski's lawyers telling a radio station that they will take legal action is NOT "thuggery." Ironically, the detention of a pesky reporter asking unwelcome question by security people for Palin's preferred candidate, Miller, is much closer to "thuggery" (and Palin did not refer to it).

Fifth, Palin charged that Murkowski went "low" by obtaining a change in the write-in process. But Murkowski did that lawfully and Alaska's Supreme Court ruled on the matter.

Sixth, Palin promotes Christine O'Donnell for Senator in Delaware yet pummels Murkowski for participating in the general election as a write-in candidate. (In 2006 O'Donnell came in third in a Delaware Republican Senate primary, with 17% of the vote, and stayed in the general election as a write-in candidate, winning 4% of the vote.)

Michael J. Gaynor

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.