• With: Larry Walters

    This is a RUSH transcript from "The O'Reilly Factor," August 23, 2013. This copy may not be in its final form and may be updated.

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    BROWN: In the "Personal Story" segment tonight, a truly shocking story about a Department of Homeland Security official. His name is Ayo Kimathi, who, in his off hours, apparently runs a Web site promoting the murder of white people and advocating a war between the races.

    How can he still be working for Homeland Security as a face of the agency which, when questioned about it, says only that it's investigating the matter.

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    Here now to discuss it is First Amendment lawyer, Larry Walters. Larry, welcome to the show. Appreciate your taking time to come on.

    LARRY WALTERS, FIRST AMENDMENT LAWYER: A pleasure to be here, senator.

    BROWN: Thank you. Well, you know, you've heard it, you've seen the Web site, we talked a little bit offline. I have to tell you, I know when somebody signs on with Homeland, they sign a code of ethics, a code of conduct, how they're going to conduct themselves.

    This person, apparently, was dealing with the public. He was advocating on behalf of --

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    -- Homeland Security as an employee of the United States government, of Homeland. Is this the type of behavior we want our employees of government, being paid by taxpayer dollars, to be participating in.

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    WALTERS: Look, I wouldn't think it's what we want our employees to be doing. This is an issue potentially involving the First Amendment, so the government is treading lightly. But this is an example of where an individual --

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    -- may have crossed the line in advocating violence against the races and, essentially, advocating a race war. And the Supreme Court allows the government a decent amount of leeway when it comes to terminating employees based on private activity, including Web site activity, if that activity negatively impacts the employer.

    And this may be a case where some sort of adverse determination is appropriate.

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    BROWN: Well, I have to take exception. I think it's a no-brainer. This is the type of activity that not only -- we just saw the story about the Australian baseball player being killed by three young teenagers.

    It sets a bad -- sends a bad message that we, in the United States, need to be more tolerant obviously of others. But, more importantly, he's a representative of Homeland Security. He's out there advocating obviously for --

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    -- Homeland, representing our interests. He's out there also advocating for the killing of white people in a race war. To me, it's a no-brainer.

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    I'm quite frankly shocked. Number one, that the Homeland Security didn't know, they didn't obviously, you know, figure out what was going on through people in the workplace.

    Because not only is he doing that, he's giving speeches. He has his own clothing line or selling things online. He's got videos.

    And he's out there in a public way, yet Homeland has done nothing. I don't get it.

    WALTERS: Apparently, there was some alleged misrepresentation as to what he was involved in with his Web site, and didn't describe it fully to Homeland Security.

    But to the extent that, you know, even a minimal investigation is undertaken, it'll be easy to identify that this person involved in advocating violence, --

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    -- which is not protected under the First Amendment. And I frankly think that his days as a DHS employee are numbered.

    BROWN: Yes, will we see you representing him anytime soon, because I think his days are numbered. I would certainly hope so.

    WALTERS: Well, look, you know, you won't find any stronger defender of First Amendment rights than me. I've devoted the last 20 years of my career to defending free speech rights.

    But this is an instance where, I think, the speech has crossed the line into incitement of violence and, clearly, calls for a race war. So, no, I'll decline that case.

    BROWN: Well, good. Well, listen, I'm hopeful that, some time, we can just kind of get along and just kind of -- you know, he does his job, you know, he's obviously, you know, moving forward.

    And we can get other things done. And, you know, do his job at Homeland Security and not be out advocating a race war and the like.

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    So, I want to thank you for your time and it's been a pleasure talking to you.

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    WALTERS: My pleasure. Thank you for having me.

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