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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 13, 2009
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Topic category:  Government/Politics

ACORN Defunding Suit Is NOT Bogus or Frivolous

A case of first impression will not be dismissed because it is a case of first impression. The United States Supreme Court, in United States v. Lovett, explained that the Constitution's prohibition on bills of attainder prohibits all legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial..." Statutes passed after the Civil War with the intent and result of excluding persons who had aided the Confederacy from following certain callings, by the device of requiring them to take an oath that they had never given such aid, were held invalid as being bills of attainder as well as ex post facto laws.

On September 25, 2009, Hans A. von Spakovsky, a Senior Legal Fellow at the Heritage Foundation and Manager of the Civil Justice Reform Initiative, issued a report titled "Defunding ACORN: Necessary and Proper, and Certainly Constitutional."

von Spakovsky began: "Barring the Association of Community Organizations for Reform Now (ACORN) from receiving federal funds through the Defund ACORN Act is perfectly constitutional. It certainly is not a bill of attainder, as some recent reports have claimed."

von Spakovsky ended:

"In sum, the Defund ACORN Act does not meet the legal definition of a bill of attainder. There is no valid reason why the courts would not defer to the legislative judgment of Congress as to the regulatory purposes of this statute, particularly since its general provisions provide no proof of punitive intent and further the interests of not providing taxpayer funds to organizations that violate campaign finance and election laws -- laws that implicate the very essence of our democratic form of government and our voting process.

"The CRS [Congressional Research Service] report at one point concedes the tenuousness of such a claim, as it should, when it admits that a 'court would most likely be able to discern a rational, non-punitive purpose for [the Act]: a desire to prevent federal funds being used for activities that violate federal or state law.' There is no basis for a court to overcome the presumption of constitutionality of the Act and rule otherwise." there a basis?

In "Another Bogus ACORN Lawsuit" (November 13, 2009), Michelle Malkin concluded that ACORN "can never be 'reformed'" and "is constitutionally corrupt."

I agree with those conclusions.

Ms. Malkin described ACORN's "lawsuit over the congressional funding ban" as "just the latest desperate legal measure to distract from ACORN’s long-festering ethics and financial scandals."

I agree that one of its purposes is to distract.

But ACORN's lawsuit is NOT bogus or frivolous. There is a plausible legal argument for ACORN to make.

Professor Jonathan Turley, a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law, opined that ACORN has a "legitimate claim."

"Successful cases proving a bill of attainder are rare in the United States, said Jonathan Turley, a constitutional law expert at George Washington University who successfully argued the last attainder case in 2003.

"Turley said ACORN has a 'legitimate claim' for asking a court to overturn the law, on the standing that barring the organization from receiving funds could be considered 'legislative punishment.' Congress has equally compelling arguments, he said, but may have acted in haste because it did not hold hearings and create a complete record documenting ACORN’s misconduct.

“'Congress may wish it had acted with a bit more deliberation,' Turley said."

Turley's right. ACORN may lose the case, but it won't be sanctioned for bringing a frivolous case.

Ms. Malkin: "The group and its web of nonprofit, tax-exempt affiliates have collected an estimated $53 million in government funds since 1994. This pipeline is apparently a constitutionally protected right. According to ACORN’s lawyers at the far-left Center for Constitutional Rights, the congressional funding ban constitutes a 'bill of attainder' — an act of the legislature declaring a person(s) guilty of a crime without trial."

The "pipeline" is NOT "a constitutionally protected right," but the Constitution does protect all (ACORN included) from bills of attainder. (A person does not have a right to be a notary public, but the United States Supreme Court ruled, under the First Amendment as made applicable to states by the Fourteenth Amendment, that a state cannot ban atheists from serving as notaries.)

Ardent ACORN defender Congressman Jerrold Nadler (Dem., N.Y.), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, argued that de-funding ACORN would be unconstitutional.

On September 17, 2009, Congressman Nadler issued a press release in support of his claim stating in part: "During the McCarthy era, ...Congress enacted legislation prohibiting the use of funds to pay the salaries of three federal employees who Congress deemed subversive. The Supreme Court ruled this legislation unconstitutional as a Bill of Attainder."

Congressman Nadler was flatly wrong...about when that legislation was enacted. (It was enacted in 1943, during the World War II era. Joseph McCarthy was serving in the United States Marines then, having foregone his automatic exemption as a judge. He did not join the Senate until 1947 and the term "McCarthyism" was not coined until 1950.)

But the Constitution says what it says and Congressman Nadler did not make up a Supreme Court ruling.

ACORN is a criminal enterprise, a corrupt unofficial arm of Congressman Nadler's political party and a slimy, subversive disgrace, but Congressman Nadler had a genuine legal argument and ACORN's lawsuit asserting it is NOT bogus!

Congressman Nadler:

"A little while ago, the House passed an amendment to the bill that we were considering that says no contract or federal funds may ever go to ACORN, a named organization, or to any individual or organization affiliated with ACORN. Unfortunately, this was done in the spirit of the moment and nobody had the opportunity to point out that this is a flat violation of the Constitution, constituting a Bill of Attainder. The Constitution says that Congress shall never pass a Bill of Attainder. Bills of Attainder, no matter what their form, apply either to a named individual or to easily ascertainable members of a group, to inflict punishment. That’s exactly what this amendment does.

“It may be that ACORN is guilty of various infractions, and, if so, it ought to be vetted, or maybe sanctioned, by the appropriate administrative agency or by the judiciary. Congress must not be in the business of punishing individual organizations or people without trial.

“That’s what this Amendment did. It is flatly prohibited by the Constitution, and once we ignore the Constitution we ignore constitutional principles. Whatever one may think of the subject matter or the organization, the Constitution and the ban on Bills of Attainder are there for the protection of all of our liberties. It is unfortunate that we passed this, and I hope it is removed in the conference committee.”

In United States v. Lovett, 328 U.S. 303 (1946), the United States Supreme Court upheld a claim that the constitutional prohibition on a bill of attainder had been violated.

The Court summarized the facts as follows:

"In 1943, the respondents, Lovett, Watson, and Dodd, were, and had been for several years, working for the Government. The government agencies which had lawfully employed them were fully satisfied with the quality of their work, and wished to keep them employed on their jobs. Over the protest of those employing agencies, Congress provided in § 304 of the Urgent Deficiency Appropriation Act of 1943, by way of an amendment attached to the House bill, that, after November 15, 1943, no salary or compensation should be paid respondents out of any monies then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were, prior to November 15, 1943, again appointed to jobs by the President with the advice and consent of the Senate. 57 Stat. 431, 450. Notwithstanding the congressional enactment, and the failure of the President to reappoint respondents, the agencies kept all the respondents at work on their jobs for varying periods after November 15, 1943; but their compensation was discontinued after that date. To secure compensation for this post-November 15th work, respondents brought these actions in the Court of Claims. They urged that § 304 is unconstitutional and void on the grounds that...the section violates Article I, § 9, Clause 3, of the Constitution, which provides that 'No Bill of Attainder...shall be passed'...."

The Court observed: "In the background of the statute here challenged lies the House of Representatives' feeling in the late thirties that many 'subversives' were occupying influential positions in the Government and elsewhere, and that their influence must not remain unchallenged."

The Court held that the case presented a justiciable controversy.

"We hold that the purpose of § 304 was not merely to cut off respondents' compensation through regular disbursing channels, but permanently to bar them from government service, and that the issue of whether it is constitutional is justiciable. The section's language, as well as the circumstances of its passage which we have just described, show that no mere question of compensation procedure or of appropriations was involved, but that it was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency.... Any other interpretation of the section would completely frustrate the purpose of all who sponsored § 304, which clearly was to 'purge' the then existing and all future lists of government employees of those whom Congress deemed guilty of 'subversive activities,' and therefore 'unfit' to hold a federal job. What was challenged, therefore, is a statute which, because of what Congress thought to be their political beliefs, prohibited respondents from ever engaging in any government work except as jurors or soldiers. Respondents claimed that their discharge was unconstitutional; that they consequently rightfully continued to work for the Government, and that the Government owes them compensation for services performed under contracts of employment. Congress has established the Court of Claims to try just such controversies. What is involved here is a congressional proscription of Lovett, Watson, and Dodd, prohibiting their ever holding a government job. Were this case to be not justiciable, congressional action, aimed at three named individuals, which stigmatized their reputation and seriously impaired their chance to earn a living, could never be challenged in any court. Our Constitution did not contemplate such a result. To quote Alexander Hamilton,

. . . a limited constitution . . . [is] one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Federalist Paper No. 78. [p315]"

Then the Court held the statute at issue unconstitutional.

"We hold that § 304 falls precisely within the category of congressional actions which the Constitution barred by providing that 'No Bill of Attainder or ex post facto Law shall be passed." In Cummins v. Missouri, 4 Wall. 277, 323, this Court said,

A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.

"The Cummins decision involved a provision of the Missouri Reconstruction Constitution which required persons to take an Oath of Loyalty as a prerequisite to practicing a profession. Cummins, a Catholic Priest, was convicted for teaching and preaching as a minister without taking the oath. The oath required an applicant to affirm that he had never given aid or comfort to persons engaged in hostility to the United States, and had never 'been a member of, or connected with, any order, society, or organization, inimical to the government of the United States . . .' In an illuminating opinion which gave the historical background of the constitutional prohibition against bills of attainder, this Court invalidated the Missouri constitutional provision both because it constituted a bill of attainder and because it had an ex post facto operation. On the same day the Cummins case was decided, the Court, in Ex parte Garland, 4 Wall. 333, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this Court to take a similar oath. Neither of these cases has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. Adherence to this principle requires invalidation of § 304. We do adhere to it.

"Section 304 was designed to apply to particular individuals. Just as the statute in the two cases mentioned, it 'operates as a legislative decree of perpetual exclusion' from a chosen vocation. Ex parte Garland, supra, at 377. This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason, 18 U.S.C. 2; acceptance of bribes by members of Congress, 18 U.S.C. 199 202, 203; or by other government officials, 18 U.S.C. 207 and interference with elections by Army and Navy officers, 18 U.S.C. 58.

Section 304, thus, clearly accomplishes the punishment of named individuals without a judicial trial. The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found guilty of disloyalty makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal. No one would think that Congress could have passed a valid law stating that, after investigation, it had found Lovett, Dodd, and Watson 'guilty' of the crime of engaging in 'subversive activities,' defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that language, accomplishes that result. The effect was to inflict punishment without the safeguards of a judicial trial and 'determined by no previous law or fixed rule.' The Constitution declares that that cannot be done either by a State or by the United States.

"Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts. See Duncan v. Kahanamoku, 327 U.S. 304. And even the courts to which this important function was entrusted were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and, even after conviction, no cruel and unusual punishment can be inflicted upon him. See Chambers v. Florida, 309 U.S. 227, 235-238. When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder. Section 304 is one. Much as we regret to declare that an Act of Congress violates the Constitution, we have no alternative here."

von Spakovsky responded to what he called 'flawed legal analysis" by the Congressional Research Service, which had issued a report concluding that a "court may have a sufficient basis to overcome the presumption of constitutionality, and find that [the Defund ACORN Act] violates the prohibition against bills of attainder."

von Spakovsky used the right words--"perfectly," "certainly" and "clearly"--in his report, but his use of them does not guarantee that the courts will not reach the opposite conclusion and his own legal analysis is not flawless.

For example, von Spakovsky stated: "James Madison said that bills of attainder 'are contrary to the first principles of the social compact, and to every principle of sound legislation.' But accordingly, what constitutes a bill of attainder is rather narrow."

von Spakovsky quoted Madison accurately, but he did not cite any authority for his own characterization of the scope of bill of attainder.

There IS authority in point, but it is to the contrary!

In United States v. Brown, 381 U.S. 437 (1965) (cited by von Spakovsky in footnote 8 of his article), in which the United States Supreme Court held that in designating Communist Party members as persons who cannot hold union office, Congress exceeded its Commerce Clause power to enact generally applicable legislation disqualifying from positions affecting interstate commerce persons who may use such positions to cause political strikes, the Court stated: "The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply - trial by legislature."

The Court stated: "In 1810, Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch 87, 138, stated that '[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.' This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court's pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups. See also Ogden v. Saunders, 12 Wheat. 213, 286."

The Court also rejected a narrow definition of punishment: "it still clearly appears that 504 inflicts 'punishment' within the meaning of the Bill of Attainder Clause. It would be archaic to limit the definition of 'punishment' to 'retribution.' Punishment serves several purposes: retributive, rehabilitative, deterrent - and preventive. One of the reasons society imprisons those convicted of crimes is to keep them from inflicting future harm, but that does not make imprisonment any the less punishment."

The Court added: "We do not hold today that Congress cannot weed dangerous persons out of the labor movement, any more than the Court held in Lovett that subversives must be permitted to hold sensitive government positions. Rather, we make again the point made in Lovett: that Congress must accomplish such results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied. Under our Constitution, Congress possesses full legislative authority, but the task of adjudication must be left to other tribunals."

The argument that the wording of the statute made it constitutional in the circumstances was rejected in these words: "The Solicitor General urges us to distinguish Lovett on the ground that the statute struck down there 'singled out three identified individuals.' It is of course true that 504 does not contain the words 'Archie Brown,' and that it inflicts its deprivation upon more than three people. However, the decisions of this Court, as well as the historical background of the Bill of Attainder Clause, make it crystal clear that these are distinctions without a difference. It was not uncommon for English acts of attainder to inflict their deprivations upon relatively large groups of people, sometimes by description rather than name. Moreover, the statutes voided in Cummings and Garland were of this nature. We cannot agree that the fact that 504 inflicts its deprivation upon the membership of the Communist Party rather than upon a list of named individuals takes it out of the category of bills of attainder."

United States v. Brown was a 5 to 4 decision. The dissenters concluded that Congress had "demonstrated concern in preventing future conduct - political strikes -.... the means adopted to that end" was reasonable, so they could not "conclude that 504 had a punitive purpose or that it constitutes a bill of attainder."

von Spakovsky: "The bill of attainder clause has never been read to prevent Congress from defunding an organization or a corporation whose employees engage in criminal conduct, and it has rarely been invoked by the modern Supreme Court. Indeed, the Court has 'not invalidated legislation on bill-of-attainder grounds since 1965.'"

True, but hardly controlling. A case of first impression will not be dismissed because it is a case of first impression. The United States Supreme Court, in United States v. Lovett, explained that the Constitution's prohibition on bills of attainder prohibits all legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial..." Statutes passed after the Civil War with the intent and result of excluding persons who had aided the Confederacy from following certain callings, by the device of requiring them to take an oath that they had never given such aid, were held invalid as being bills of attainder as well as ex post facto laws.

von Spakovsky acknowledged that "[t]he CRS report correctly cites to the holding in U.S. v. Brown in which the Supreme Court defined a bill of attainder as a 'law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial,'" but the Supreme Court held more than that in Brown.

von Spakovsky argued that "the Supreme Court has distinguished criminal penalties from other congressional regulations" and "overturn[ed] a law that provided criminal penalties for any individual who was a Communist who held union office," while "mak[ing] it clear that Congress did have the authority to ban Communists from holding union office, which is a much more severe sanction than simply being ineligible for federal grants."


The Supreme Court did not make that "clear."

Instead, it stated:

"Under the line of cases just outlined, 504 of the Labor-Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use such positions to bring about political strikes. In 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leave to courts and juries the job of deciding what persons have committed the specified acts or possess the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability -members of the Communist Party."

"...language incorporated in the majority opinion indicates that there was agreement on one point: by focusing upon 'the crucial constitutional significance of what Congress did when it rejected the approach of outlawing the Party by name and accepted instead a statutory program regulating not enumerated organizations but designated activities,' the majority clearly implied that if the Act had applied to the Communist Party by name, it would have been a bill of attainder: 'The Act is not a bill of attainder. It attaches not to specified organizations but to described activities in which an organization may or may not engage. . . . The Subversive Activities Control Act . . . requires the registration only of organizations which, after the date of the Act, are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made after full administrative hearing, subject to judicial review which opens the record for the reviewing court's determination whether the administrative findings as to fact are supported by the preponderance of the evidence.'...."

"It is argued...that in 504 Congress did no more than it did in enacting 32: it promulgated a general rule to the effect that persons possessing characteristics which make them likely to incite political strikes should not hold union office, and simply inserted in place of a list of those characteristics an alternative, shorthand criterion - membership in the Communist Party. Again, we cannot agree. The designation of Communists as those persons likely to cause political strikes is not the substitution of a semantically equivalent phrase; on the contrary, it rests, as the Court in Douds explicitly recognized, 339 U.S., at 389, upon an empirical investigation by Congress of the acts, characteristics and propensities of Communist Party members. In a number of decisions, this Court has pointed out the fallacy of the suggestion that membership in the Communist Party, or any other political organization, can be regarded as an alternative, but equivalent, expression for a list of undesirable characteristics. For, as the Court noted in Schneiderman v. United States, 320 U.S. 118, 136 , 'under our traditions beliefs are personal and not a matter of mere association, and . . . men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly [381 U.S. 437, 456] to all of its platforms or asserted principles.' Just last Term, in Aptheker v. Secretary of State, 378 U.S. 500 , we held 6 of the Subversive Activities Control Act to violate the Constitution because it 'too broadly and indiscriminately' restricted constitutionally protected freedoms. One of the factors which compelled us to reach this conclusion was that 6 inflicted its deprivation upon all members of Communist organizations without regard to whether there existed any demonstrable relationship between the characteristics of the person involved and the evil Congress sought to eliminate. Id., at 509-511. These cases are relevant to the question before us. Even assuming that Congress had reason to conclude that some Communists would use union positions to bring about political strikes, 'it cannot automatically be inferred that all members shar[e] their evil purposes or participat[e] in their illegal conduct.' Schware v. Board of Bar Examiners, 353 U.S. 232, 246 . In utilizing the term 'members of the Communist Party' to designate those persons who are likely to incite political strikes, it plainly is not the case that Congress has merely substituted a convenient shorthand term for a list of the characteristics it was trying to reach."

von Spakovsky also argued that "compar[ing] prohibiting an organization from receiving federal funds to the personal employment and contract rights upheld by the Supreme Court in United States v. a completely inappropriate and invalid comparison.

That's what the courts will be asked to decide.

von Spakovsky lists three criteria used by the Supreme Court to determine whether the "punishment" prong of a bill of attainder is met: (1) where the burden is such as has traditionally been found to be punitive; (2) where the type and severity of burdens imposed cannot reasonably be said to further non-punitive legislative purposes; and (3) where the legislative record evinces a congressional intent to punish.

The CRS and von Spakovsky agree there no Congressional intent to punish, but that remains to be determined.

Professor Turley's observation that "Congress may wish it had acted with a bit more deliberation" is astute.

von Spakovsky strove to distinguish Lovett on the facts and to construe it narrowly.

von Spakovsky: "In Lovett, three federal government employees who were suspected of being subversives by the House Committee on Un-American Activities were prohibited by Congress from receiving a federal salary unless they were reappointed to their jobs by the President with the advice and consent of the Senate. The Supreme Court found this to be a bill of attainder since it denied these individuals their contractual rights to federal employment. While it makes sense to consider the abrogation of such a vested property right to employment based on a claim of subversive activity to be legislative 'punishment' within the criteria for a bill of attainder, the CRS report's conclusion that this is 'similar' to preventing an organization from receiving appropriated funds from Congress defies common sense, particularly when applied to Sec. 602(a), which prohibits prospective contracts and grants from being awarded to a covered organizations. Nonprofits like ACORN have no vested property or contractual right to receive federal contracts or grants. Such a view also defies case law -- and federal statutory and regulatory provisions."

But...(1) the Solicitor General had argued in Lovett that there was no punishment. (2) there is no more constitutional right to receive federal contracts or grants than there is to obtain or continue federal government employment and (3) the constitutional prohibition on bills of attainder is NOT to be narrowly construed, so the courts may say, as the United States Supreme Court did in Brown, that It's "crystal clear that these are distinctions without a difference."

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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