Should Paroled Sex Offender Be Allowed to Have Porn?

This is a rush transcript from "The O'Reilly Factor," July 15, 2008. This copy may not be in its final form and may be updated.

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BILL O'REILLY, HOST: In the "Is It Legal?" segment tonight: The Florida Supreme Court is one of the most irresponsible judicial bodies in the history of the country. There, I said it, and I'm happy.

The latest atrocity from the robes in Tallahassee is that convicted sex offenders on probation are allowed to have porn, even if the conditions of their probation say they can't.

With us now, FOX News legal analyst Lis Wiehl, an attorney who graduated from Harvard Law School, and FOX News anchor Megyn Kelly, also an attorney who graduated from Albany Law School in New York.

MEGYN KELLY, "AMERICA'S NEWSROOM" CO-HOST: You like Albany Law School. We see the law clearly. We don't have all that ivy in our eyes.

O'REILLY: Yes, that's right. You don't have all that liberal influence that you have at Harvard, that indoctrination going on.

All right. Now, look, come on. There's a 5-2 decision, and basically, as far as I know the law, if you get out on probation, all right, the probation board has a right to limit your behavior in many different ways.

KELLY: Right.

O'REILLY: So you're a sex offender convicted in Florida, say, "Hey, you can't have pornography." That makes sense to me and 90 percent of the people watching me, right?

KELLY: I hate to rain on your parade, but you're making much to do about nothing, because the statute down there was ambiguous. The court didn't say you can't ban the criminals from having porn. They just said, "The way you wrote it, legislature, is ambiguous. It doesn't make sense."

O'REILLY: But they were looking to say that.

KELLY: So go back and clarify. There was a case. There was a case the criminal challenged it and said it's ambiguous. The way it reads to me is it only limits me from having the kind of porn that relates to the offense I committed.

O'REILLY: Yes.

KELLY: And the circuits in Florida, the lower courts were split on that. He had already — other courts had already so found…

O'REILLY: What — what you guys — first of all, do you agree with her?

LIS WIEHL, FOX NEWS JUDICIAL ANALYST: Absolutely not.

O'REILLY: OK.

WIEHL: This is a crazy decision. And even if you look at it the way Megyn is looking at it, if you look at the facts of this case, this guy was convicted of molesting a 15-year-old boy in, you know, oral sex, right? The video and the pornography that he had was of young men, young males, 15 — possibly 15 — we don't know the age — engaged in oral and anal sex. Come on.

O'REILLY: So why did the pinheads in Tallahassee say that despicable human being, who shouldn't be out of jail anyway — how long did the guy serve?

WIEHL: He served one year.

O'REILLY: One year.

WIEHL: And eight years probation. I mean, he's on it right now. As soon as he gets off…

O'REILLY: So he's on eight years probation. They caught him and they put him back in jail, and the Florida Supreme Court says, "No, you can't"?

WIEHL: The appellate court says that's fine. He can go to jail. The Supreme Court says no, you can't. But I have never read — not never but rarely read such an angry dissent from the two dissenters. Their dissent went on longer than the...

O'REILLY: They're like me. They're like me. Maybe it isn't a perfectly written law, Kelly.

KELLY: It's ambiguous.

O'REILLY: OK. To you it's ambiguous.

KELLY: Look, I'm not on the side of the — I'm not on the side of the child molesters, but I read it. I'm a lawyer.

O'REILLY: No, no. Let me make my point.

KELLY: It is ambiguous to me. They had a point.

O'REILLY: OK. Sometimes the greater good of society has to prevail in these pinhead courtrooms.

KELLY: You're so wrong. You are so wrong. You know what happens when you take that view? You get judicial activism. You get things like Roe v. Wade. You are wrong. That is a dangerous road you want to go down.

WIEHL: What the majority says is look, we have to go to the rule of leniency. In other words, when there's ambiguity we have to go — we have to decide with the defendant.

O'REILLY: Why?

WIEHL: But the majority...

O'REILLY: Why? Why do they have to do that?

WIEHL: The majority says — first of all, that is true as a rule of law. But that's not, again, what happened in this case. And the dissent said, "Wait a second. There is no ambiguity." As to legislative intent, it is very clear what the legislators intended to do.

O'REILLY: Yes, it is clear.

WIEHL: That's over.

O'REILLY: All right. So this idiot now is on the street, right? And he can have the porn that he wants to have? Is that correct?

KELLY: As long as it doesn't relate.

O'REILLY: Florida Supreme Court, there we go.

WIEHL: And how can it relate any more than it does?

O'REILLY: All right. Now, here's an interesting case. In Connecticut, 12-year-old kid posts a picture of another minor, right, naked picture on the Net.

KELLY: Right.

O'REILLY: How often do we hear this stuff? They charge the 12-year-old kid with "breach of peace." What's breach of peace?

KELLY: It's basically their version of disturbing the peace or disorderly conduct, saying that she engaged in offensive conduct that caused...

O'REILLY: How old was the picture — the kid in the picture?

KELLY: Also a minor.

O'REILLY: We don't know how old?

KELLY: I think she would be — she was 15, if memory serves.

O'REILLY: So a 12-year-old posts a picture of a 15-year-old.

KELLY: Yes.

O'REILLY: And the 12-year-old gets charged with — but can't be charged as adult.

KELLY: No, no, it's a juvenile crime.

O'REILLY: It's a juvenile crime.

KELLY: She is still at home, apparently, with her parents.

O'REILLY: Is this a worthy prosecution?

KELLY: I think it is actually, yes. These gentlemen need to be taught a lesson. And from what we've seen...

O'REILLY: It's happening all over the place.

KELLY: The girl who took the picture, it's not like she was at a party with a friend. She did it without the other girl's knowledge.

O'REILLY: OK.

KELLY: There's some evidence she did it maliciously.

O'REILLY: Now Wiehl, there's a hacker who hacked into Miley Cyrus' computer.

KELLY: Right.

O'REILLY: That's what they say.

KELLY: A telephone.

O'REILLY: There's a lot of weird stuff going on around here. And gets pictures that Miley Cyrus has in her personal computer.

KELLY: Right.

O'REILLY: OK. Can this guy be charged with breach of peace?

WIEHL: You know, I think it's different than the 12-year-old. Here we've got Miley Cyrus, who's already posed for Vanity Fair. And I've seen the photos, the "nude photos." Her publicist apparently isn't even that upset about it. They're not, you know, that outrageous.

O'REILLY: So you can't apply it unless it's an egregious...

WIEHL: A celebrity and it's — just don't see it as being that egregious. I don't see it going.

O'REILLY: And finally, we have two insane lawsuits. First of all, roll the tape on the Bronx Zoo thing. Some people got caught in a ride on the Bronx Zoo, OK. They got stranded up there, Kelly. And they're suing because there were savage baboons underneath them, correct?

KELLY: So they say. I think this is ridiculous.

O'REILLY: Yes.

KELLY: Nobody else sued. There were 37 people up there.

O'REILLY: How much did they sue for?

KELLY: Ten million dollars.

O'REILLY: Because they were afraid of savage baboons below them?

KELLY: They suffered psychological trauma, but no physical injuries.

O'REILLY: And then, Wiehl, there's another lawsuit. Somebody fell over in church because he was so enthused about God.

WIEHL: Right.

O'REILLY: And he's suing who?

WIEHL: He's suing the church, because he wanted to have this uplifting experience, and he got hit in the head in the church.

O'REILLY: How did he get hit in the head?

WIEHL: I think he fell.

O'REILLY: He didn't get hit in the head. He fell down. So he's blaming it on God and the church.

WIEHL: Yes, well, the church is...

O'REILLY: And he wants how much?

WIEHL: He wants $1-something million. The church's insurance is saying no way.

O'REILLY: Here's what I would do. Here's what I'd do. If I were in charge, I'd throw those people to the baboons, and the other guy could never go to church in his life.

Ladies, thanks very much.

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