This is a partial transcript from The O'Reilly Factor, May 23, 2002. Click here to order the complete transcript.

BILL O'REILLY, HOST: Now for the Top Story tonight, a dissenting point of view to my position. Joining us from Minneapolis is Marshall Tanick, a civil liberties attorney.

So counselor, where am I going wrong here?

MARSHALL TANICK, CIVIL LIBERTIES ATTORNEY: Well, I think you went wrong in about three different respects, Bill. First of all, I think that this measure was properly vetoed by Governor Ventura, who I think really showed a great deal of political courage in doing so. I think this kind of measure is inappropriate. I think it's improper, and it's illegal as well.

There was a 1943 United States Supreme Court case that ruled that it is unconstitutional to force or mandate students to give the Pledge of Allegiance in schools. Now, I know this bill did have some opt-out provisions, but the basic concept underlying that Supreme Court decision is essentially what Governor Ventura articulated in his radio joust with you this afternoon, that states should not be imposing ideology and forcing or mandating students or others what to say.

O'REILLY: All right. Now, let me stop you there. What, what ideology is being forced on a student by reciting the Pledge of Allegiance?

TANICK: Twofold. First of all, the acknowledgment of some type of fidelity or loyalty to the country, which I think is a good idea. I am not saying people should not be loyal or should be disloyal. What I am saying is, I think it imposes an ideology to make people say that, firstly.

And secondly, the Pledge has a religious element to it. It uses the words "under God." I don't think there's anything wrong with people articulating that, feeling that, believing that. I think it becomes very tenuous and troublesome when the state mandates people what to say.

Because Bill, the flip side of freedom of speech is freedom not to speak. And when government tells people what they have to say, or what they have to...

O'REILLY: All right.

TANICK: ... think, that's every bit as...

O'REILLY: Now...

TANICK: ... odious as stopping them from expressing their views.

O'REILLY: Yes, but you're -- number one, you're empowering children, all right, who are ordered what to say all the time. Would it be unconstitutional or unprofessional or wrong to demand that students address me as a teacher as "Mr. O'Reilly"? Is that wrong?

TANICK: Absolutely not.

O'REILLY: All right. So you're forcing them to say that. They might want to call me Bill or Shmoe or something else.

TANICK: (UNINTELLIGIBLE)...

O'REILLY: You're forcing them, counselor...

TANICK: (UNINTELLIGIBLE) school.

O'REILLY: ... "Mr. O'Reilly," because out of respect for the teaching position.

Now, out of respect for the country, the students mandated to recite the Pledge of Allegiance, all right, I said I wouldn't force them. But they would have to rise. They didn't have to say the words if they didn't want to. But for the majority of children in Minnesota and in the United States of America, the patriotic exercise of the Pledge is a good, positive, instructive thing.

And guys like you, with all due respect, counselor, are destroying that.

TANICK: Well, first of all, I gave the Pledge -- we had a -- when I was a young man, we had in school, we did do the Pledge of Allegiance...

O'REILLY: Yes.

TANICK: ... (UNINTELLIGIBLE)...

O'REILLY: And it didn't hurt you, did it?

TANICK: It didn't hurt me at all...

O'REILLY: OK. And it wasn't...

TANICK: ... (UNINTELLIGIBLE)...

O'REILLY: ... forced upon you in the sense that it was a punitive attachment to it, was there?

TANICK: No, it wasn't forced, it was a school policy...

O'REILLY: Yes.

TANICK: ... but I think there's a major difference between giving the state the imprimateur of saying, This is a law, and we're...

O'REILLY: But if you had what I had...

TANICK: ... (UNINTELLIGIBLE)...

O'REILLY: ... that the student didn't have to say it, but only had to rise when it was said, would you object to that?

TANICK: Absolutely. I think that's a red herring.

O'REILLY: Why? Why would you object to (UNINTELLIGIBLE)? The student doesn't have to say it.

TANICK: Because if they have to rise and honor the views expressed...

O'REILLY: No, they have to rise...

TANICK: ... (UNINTELLIGIBLE)...

O'REILLY: ... out of respect for the country. Just as they have to call me Mr. O'Reilly out of respect for me being a teacher. They might not respect me, but they have to call me Mr. O'Reilly even if they don't like me.

See? There's the difference.

TANICK: (UNINTELLIGIBLE)...

O'REILLY: You have to respect the teacher, you have to respect the country in a public school setting.

TANICK: Well, I think it's very coercive to force students to do that. And as I said, when I was...

O'REILLY: To do what? Call me Mr. O'Reilly?

TANICK: No, (UNINTELLIGIBLE)...

O'REILLY: Then what's the difference?

TANICK: To have to show...

O'REILLY: What's the difference?

TANICK: ... to have to express some kind of acknowledgment of an ideological and philosophical view that they or their parents may disagree with.

O'REILLY: OK, they might disagree with calling me Mr. O'Reilly because they don't like the way I present my history lesson. Come on! The school mandates certain behavior to all students. And to say in a public school that you have to respect the flag of your country, you're telling me that's coercive?

TANICK: Absolutely. I think it's a -- it would be comparable to imposing some kind of religious prayers in the school.

O'REILLY: Oh, I can't believe it, I just can't believe that you think that a public school system paid for by taxpayer money under the aegis of the United States of America can't tell the student that the flag must be respected. You're going to have -- what are you going to do if a student spits on the flag there, counselor?

TANICK: I think -- I didn't say that to students -- that the students can't be told to respect the flag. That should be part of the curriculum.

O'REILLY: But all we're saying is, you have to rise, you don't have to say the Pledge, just rise, show respect.

TANICK: Well...

O'REILLY: And you're saying that's coercive.

TANICK: That's the imposition of an ideology upon the students.

O'REILLY: It is not.

TANICK: That's totally different than a legitimate curricular project or...

O'REILLY: A civics isn't a legitimate...

TANICK: ... (UNINTELLIGIBLE)...

O'REILLY: ... legitimate curricular?

TANICK: This isn't civics, this is telling people...

O'REILLY: Sure it is!

TANICK: ... what they have to say and what they have to believe.

O'REILLY: This is -- no, it's exactly civics. That's what it is. The Pledge of Allegiance to your country. That's civics, counselor.

TANICK: No, not the way it's posed in the state law. I mean, we have in Minnesota, I think most of the school districts, and this is probably true throughout the country, do have their own policies requiring students to give the Pledge of Allegiance or participate in other patriotic duties. I don't think those are necessarily illegal.

But I think when the state comes in, passes a law, and says, Thou shalt do the following, you must believe this, you must think this, we'll give you a chance to opt out, but that's inherently coercive, I think it bridges on a violation of the First Amendment, and I'm not the only one, the Supreme Court unanimously said so in 1943, and no...

O'REILLY: Ah, but don't distort it...

TANICK: ... (UNINTELLIGIBLE)...

O'REILLY: ... if you had an opt-out, as I told you, the Supreme Court could not, could not ban that.

Counselor, we'll let the audience decide as always, thank you.

TANICK: Thank you, Bill.

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