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The Five

Texas terror attack sparks debate on limits of free speech

This is a rush transcript from "The Five," May 7, 2015. This copy may not be in its final form and may be updated.

KIMBERLY GUILFOYLE, CO-HOST: Hello, everyone. I'm Kimberly Guilfoyle along with Julie Roginsky, Eric Bolling, Melissa Francis and Greg Gutfeld. It's 5 o'clock in New York City and this is "The Five."

The terror attack in Texas this weekend was a direct assault on our freedom of speech. If America case to jihadists over drawings of cartoons, what comes next?

(BEGIN VIDEO CLIP)

EUGENE VOLOKH, FIRST AMENDMENT SCHOLAR: There is no exception under the first amendment for blasphemy. There is no exception for speech that offends people because of their religious believes. People are free to express themselves this way. People are free to engage in even much more offensive speech than that.

MEGYN KELLY, THE KELLY FILE HOST: You know what else the jihadists don't like? They hate Jews. Should we get rid of all Jews? That's the path we're going to go down if we start catering with the jihadist. There's no satisfying them. There's no making them happy. You can't not do things because the jihadists are going to be upset.

RUSH LIMBAUGH, RADIO SHOW HOST: The same militant Islamists who do not permit the drawing of pictures of the Prophet Muhammad also do not permit homosexuality. If you turn on MSNBC, you're going to see a total devotion to the concept of gay marriage. Isn't that insulting to the Muslims who would be watching?

(END VIDEO CLIP)

GUILFOYLE: So cartoons can get killed. You can't even have a sense of humor. You cannot exercise your freedom of speech, your first amendment God-given constitutional right in this country. What happens next, Bolling?

ERIC BOLLING, CO-HOST: Well, nothing happens because it's all protected. We all agree. I don't think anyone disagrees, even the people who are in this building who say, Pam Geller may have gone too far, they all still say freedom of speech is protected. Everything she did was protected under the constitution. You can still be stupid. You can still be a moron (ph). You could still provoke. You could still tweak the ear of radical Islam and radical Islam can come back and try and kill you with two of their thugs and you can take them out. Brews Willis in the beginning of Die Hard 3 was wearing a poster of an N word on him. Remember this, the terrorist made him do that. The prophet event in Phoenix, Arizona, the Westboro Baptist Church in front of military funerals, the full stomping on the flag a couple of weeks ago at that school where the military -- the flyer.

GUILFOYLE: Veteran. Yeah.

BOLLING: The veteran pulled the flag away. She got arrested. Those are all examples of free speech being protected, the stomping of the flag, et cetera, what not, free speech being protected. Not necessarily smart speech, but definitely free speech being protected.

GUILFOYLE: Greg?

GREG GUTFELD, CO-HOST: Well, I always remember this old saying when there was a certain behavior that an older person didn't like they would say, "Just don't rub my face in it." It's like. "I got nothing against blacks and whites getting married, just don't rub my face in it or I have no problem with men being with men, just don't rub my face in it." Now, with free speech, you have liberals talking about free speech saying, "I'm for free speech, but just don't rub my face in it, whether it's Garry Trudeau or Joyce Carol Oates or Larry Wilmore, they start with, "I'm for free speech, but this is stupid or this is wrong." Essentially what they're saying is don't rub my face in your free speech. It's dovetails -- it dovetails nicely with she asked for it. It's the same kind of excuse. It's stupid.

BOLLING: Can I just follow up on that too? Larry Wilmore is one of the guys who called out Pam Geller for -- or those of us who defended Pam Geller and he said, "No. No. That's not protected. That shouldn't be protected. It's hate speech. It goes beyond." Think of this for a second, Larry. What about the N word one time? What if you're so offended by the N word someone says it, do they deserve two people coming after them and trying to kill them? I mean there in lies -- you have to see the difference between, speech you hate, despise that provokes and speech that deserves action.

GUTFELD: Wait. You're conflating two things here. If you walk into a certain area and do that, yes, you are provoking it. You deserve to get your butt kicked.

BOLLING: Yes.

GUTFELD: What happened with the Pam Geller, thing it's a private event. It's a private event.

BOLLING: But -- no. You don't deserve to get your butt kicked. You deserve to be yelled at. You deserve to be degraded (ph).

GUTFELF: Oh, no. No. If you walk into a church dressed as a clansman or use the N word, you deserve to get punched in the face.

JULIE ROGINSKY, CO-HOST: You may deserve to get a punch to the face, but I will go a step further and I'll say this as a liberal. Of course, the whole point of free speech is hate speech because if it was speech that we all loved there wouldn't be a point -- look. You know, this is the difference between this country and somewhere like Germany, which is a great democracy. But in Germany, you are not allowed to be a holocaust denier (ph). It's against the law. You are not allowed to actually -- Mein Kampf, Hitler's autobiography, his book that generated so much sympathy for the Nazi, is banned. I think that terrible. And I understand Germany's history, but I think that's terrible. And I think what's great about this country is despite the fact that you may hate what Pamela Geller says, and I do, she has a right to say it. There is no excuse for anybody banning or trying to say in any way, shape or form that hate speech is speech that shouldn't be said. It should be spade said. The first amendment is sacrosanct. It is more important than anything else including anybody.

(CROSSTALK)

MELISSA FRANCIS, CO-HOST: Not only that. Right now in this country we love to talk about bullies. I mean it's the thing that all parents are talking about on the playground. When you have a bully you don't not go to lunch and not bring your money in there and hide out in the hallway and starve to death. You take your money and you go into the lunchroom and you stand up to them. When you let bullies control what's going on, that's when you completely lost the battle. And yes, in this country, we do have the right to say anything that you want to say and go out there and protest and then the proper response is for the group that doesn't like it to stand there and say something else.

BOLLING: Say something.

FRANCIS: Not to open fire.

BOLLING: That is right. And there -- and this is where you and I may disagree. There is a place for the response and the response is a verbal response. It's never.

(CROSSTALK)

GUTFELD: No. I think you're -- I think you're misinterpreting me. I'm talking about the location. The difference between what happened with the draw Muhammad contest and the -- let's say the Bruce Willis example from the movie is it's about location. A private event in which you are not face-to-face does not require -- is not called fighting words. Those are not fighting words. However, if you were to walk into an environment, whether it is a church or to a neighborhood and say those are called fighting words, you can expect to get your butt kicked. That's -- you're mistaking actions with location.

BOLLING: No. You can expect it, but you certainly won't be the person who did it and will not be protected under the law.

GUTFELD: There are certain things about fighting words that might actually -- if you were to walk into a church dressed as a clansman yelling the N word, I have a hard time thinking that the people who punch you will go to jail. I have a hard time. I think that falls under fighting words.

ROGINSKY: I think you're right about that from a legal perspective. I don't know. Is that -- is that -- well, you tell me. Is that vigilantism? I don't know.

GUILFOYLE: Speech is protected except for when you cross the line. You can say something that is hateful. You can say something that insights some kind of, you know, protest, but if it goes to the point where you insight violence or if you go into a crowded theater and yell fire and people get trampled to death the law is not going to allow for that, right?

BOLLING: Different though.

GUILFOYLE: It is -- it's different. But I'm saying that's where the law comes in to stop the speech.

(CROSSTALK)

BOLLING: . or using a word like the N word is very, very different from yelling fire in a crowded movie theater. It is.

GUILFOYLE: That's hate speech versus hate crime.

(CROSSTALK)

BOLLING: That's like exactly like pulling the fire alarm. You actually pulled the fire alarm in the movie theater and you're putting people's lives at risk by doing so. But if you say draw the prophet -- win this price, draw the prophet or the N word in an African-American church or wherever, gathering, I think it's protected.

(CROSSTALK)

BOLLING: I think it's protected.

GUTFELD: I remember one time during a fire I yelled movie theater. Perfectly fine.

GUILFOYLE: That was OK. Thanks for that.

ROGINSKY: Remember that issue in Illinois back in the '70s where the clan - - it was a huge controversy of a clan wanted to walk down through a Jewish neighborhood that's full of holocaust survivors and talk about their repulsive message and the ACLU stepped in and actually the son of the Ku Klux Klan which you would think is not typically the case, but there were ways to do it. The clan had a right to do it despite how repulsive their message is and I fully agree with that and I agree with Pamela Geller. She's got a disgusting message, but I agree that she has a right to do it.

FRANCIS: Can you agree with Rush Limbaugh? I mean this fight has some pretty interesting.

(CROSSTALK)

ROGINSKY: The most depressing about this is I that I agreed with Rush Limbaugh today. That's so depressing.

(CROSSTALK)

GUTFELD: That means you're growing.

ROGINSKY: I'm evolving. I'm evolving.

GUTFELD: Evolving, yes.

GUILFOYLE: People may not like her personally but that doesn't matter. It doesn't say that what she is saying -- you know, what she has to say or believe in is wrong. She may be -- you maybe don't like the means by which she goes about doing it but, however, a radical imam was on Hannity last night and says that Pam Geller would deserve death. Take a listen to this.

(BEGIN VIDEO CLIP)

SEAN HANNITY, HANNITY HOST: You cannot withstand the cartoon being drawn about?

(CROSSTALK)

ANJEM CHOUDARY, RADICAL IMAM: That will carry capital punishment.

HANNITY: So you want death -- you support the death -- you want to kill her?

(CROSSTALK)

HANNITY: You want her to die?

CHOUDARY: You know what? She should be put before sharia court and tried (inaudible) capital punishment.

(CROSSTALK)

HANNITY: She is not a Muslim. She is not a Muslim, Anjem. She doesn't believe what you believe.

(END VIDEO CLIP)

GUILFOYLE: Greg, you've been waiting for this.

GUTFELD: If there is ever a walking, talking Muhammad cartoon, that is him. I mean, he should be careful, for God sake.

ROGINSKY: You should be careful with that comment.

GUILFOYLE: Now he wants to put you in front of the sharia court where you could face capital punishment.

GUTFELD: You -- but no, you could never be guilty of blasphemy because no one is required to follow the tenets of anybody's faith. It's called faith for a reason which means I can say whatever I want about Buddha, Jesus, Muhammad or L. Ron Hubbard. Speaking of L. Ron Hubbard, it's amazing how much attention -- it's amazing how much attention has been paid to scientology in all of scientology's flaws in the media. It's been so easy to rag on them, but they don't beat (ph) ahead, they just audit. The same media that goes after Scientology will not go after radical Islam, especially in Hollywood, which I find hilarious.

FRANCIS: Greg, I support your right to say everything that you said. I'm going to move my chair a little further though after that comment about the Muhammad.

ROGINSKY: I've never debated if one of those boxes where somebody looked me in the eye and said I'm going to kill you. He was going to kill you.

GUTFELD: Now, he's having a cross flash.

ROGINSKY: Hannity has come close, but he's never gone that far with me. That's pretty amazing. That somebody else.

(CROSSTALK)

GUILFOYLE: Yeah, but now -- but now somebody like Pam Geller is facing, you know, God knows to put some kind Fatwa (ph), the issue some kind of.

GUTFELD: No, they did already.

(CROSSTALK)

GUILFOYLE: . but right. So, they say that she deserves death. I mean, he's right there on television saying, yes, she should face punishment and she should go under a court facing Sharia law. This is the United States of America. I've got news for them, Sharia law does not apply here, but yet they want it to.

BOLLING: They want -- look, there's a radical Islamic group that wants to kill us, they want -- they hate everything about us and they were -- we're wasting time pointing the finger whether or not Pam Geller provoked them or not. It doesn't matter.

They -- they will look for any excuse. This group -- ISIS already said -- ISIS said they're going to come after Pam Geller.

GUILFOYLE: Right.

BOLLING: They said that she's the pig, that -- and they're going to send their lions to slaughter the pig. I mean, can we just get outrage -- more outrage about that than Pam Geller's idea to throw an offensive cartoon contest.

GUILFOYLE: Yeah, well, why wouldn't people? I mean.

(CROSSTALK)

BOLLING: I don't know.

GUILFOYLE: . there's no comparison. It doesn't matter. It's a cartoon contest. Look at the absurdity of that. She deserves that for that.

(CROSSTALK)

GUTFELD: You know, it's easier to get angry over a cartoon contest than over a religion because if you're angry over religion you're accused of Islamaphobia. No one wants to be accused of bigotry so that has always been the shield.

BOLLING: Is there a radical Islamaphobia, can we just -- can we do that? I am guilty. I'm a radical Islamaphobic. Am I?

GUTFELD: There you go. Yeah.

BOLLING: We'll call that.

GUILFOYLE: Coming to a court near you.

BOLLING: I'm a cartoonophist (ph).

GUILFOYLE: But don't forget that this is a religion of peace, but yet she - - that he wants -- Imam Choudary wants her to face, you know, the death penalty.

BOLLING: OK.

GUTFELD: That he's just a bad apple, Kimberly.

GUILFOYLE: Sometimes that happens.

GUTFELD: He's a bad apple.

GUILFOYLE: Sometimes that happens.

Coming up, will the Clintons do whatever it takes to win back the White House? Of course. But now Bill says he's a-OK if Hillary comes in and reverses some of her policies. Greg with those details next.

(COMMERCIAL BREAK)

GUTFELD: Last week Hillary Clinton said there's something wrong with our justice system. It's her husband, Bill and his crime bill from 1994 which imposed harsher sentences and bolstered police gear in response to surging violent crime. At the time, the violent crime rate was 713 per 100,000 people -- that's a lot. But after the law it halved to 368 her 100,000.

Now, this might be the best thing Bill Clinton ever did. How sad that he's now trashing it, claiming that it led to fuller prisons as opposed to deadlier streets.

(BEGIN VIDEO CLIP)

FORMER BILL CLINTON, FORMER US PRESIDENT: The way it was written and implemented is we cast too wide a net. We have too many people it in prison.

I strongly support what she's doing, and I think any policy that was adopted when I was president in federal law that contributed to it should be changed.

(END VIDEO CLIP)

GUTFELD: That's amazing. In sum, he just smeared real positive change because he's hasn't yet christened every room in the White House with his DNA.

Behold the nature of the political animal, one who abandons lifesaving principles in favor of ideological pandering meant to expand power and indulge the extreme. It's a curse of law enforcement success. Every policy that made us safer is now unneeded because we are safer. It's like a diabetic tossing his insulin once he stabilized his blood sugar. I guess we should let muggers off with a warning or start Criminals Anonymous to help them shake their crime addiction.

So, as the Clintons renounced that bill, I renounce Bill who seems fine returning to a time when America was twice as deadly. For people born in the 1980s who were just babies, go ahead and rent "Death Wish," it's a movie from 1974. Once an artifact of a bygone era, it's now the progressive roadmap for the future.

So KG, in a sense Bill just threw his own greatest achievement under the bus so his wife could be president.

GUILFOYLE: I mean, didn't --- that's.

GUTFELD: That's romantic.

GUILFOYLE: . that sounds charming, isn't it? It's charming. But that's the idea. They will do whatever it takes to win. He said, "Yeah, whatever I did before, throw it out, as long as we can get the keys back to the White House."

GUTFELD: Yes. Exactly.

GUILFOYLE: Anything goes. That's what.

GUTFELD: He wants.

GUILFOYLE: . I mean, it's unbelievable. And he's out there talking more and so is Chelsea. Hillary, she can't be heard from and, you know me.

GUTFELD: Yeah.

GUILFOYLE: . he's, you know, a great retail politician but I don't even know if he can save the time (ph) now.

FRANCIS: He said before -- so he will finally be able to say loudly and clearly that repeat violent criminal offenders, three strikes and you're out. We're tired of putting you back to the resolving doors. That was 1994.

Now, he's says, "Well, keeping them behind bars does little to reduce crime, but it does a lot to tear families apart." That's from Hillary.

GUTFELD: Yeah.

FRANCIS: Our prisons and jails are just mental health institutions. I can't believe (ph) -- how do you go from Baltimore and you make the connection at what's going on there is because of prison? I don't know if he can.

(CROSSTALK)

GUILFOYLE: I don't know. How do you make that connection?

FRANCIS: Yeah.

GUTFELD: So, there's a good point in there. There should be institutions for people who are mentally unstable and they shouldn't be in prison. But.

(CROSSTALK)

GUTFELD: But that's how what three strikes is about. Three strikes is for violent offenders, for recidivist, for criminals, for people that aren't sitting there reading a book to their kid at home. They're out doing armed robberies or murder or gangs or whatever.

BOLLING: By the way, reading books to your kids, that's white privilege.

GUTFELD: Danger.

ROGINSKY: It is privilege because nobody ever has time to do it. Look, this is what I think about. This is not just a Bill Clinton issue. People as desperate Cory Booker, Rand Paul.

BOLLING: Yes.

ROGINSKY: . in the Senate are actually working criminal justice reform because I think everybody -- or not I shouldn't say everybody but a lot of well meaning people on both sides of the aisle, somebody like a Rand Paul and somebody like Cory Booker have decided that what we do is incarcerate people who would be better being treated elsewhere. And the vast majority of people are in prisons are not violent criminals.

BOLLING: I.

(CROSSTALK)

ROGINSKY: If you're killing -- if you get busted dealing pot three times in a row or you're dealing (ph) coke three times in a row and you're not some -- big heavy hitter, should you be in prison for years?

(CROSSTALK)

GUTFELD: He should not.

GUILFOYLE: No.

ROGINSKY: If you're a drug dealer.

GUILFOYLE: Yeah.

(CROSSTALK)

ROGINSKY: If you're -- excuse me, there's a big difference between a drug dealer from Columbia and a drug dealer who shows up and deals a little on the side and should not end up with.

(CROSSTALK)

GUILFOYLE: Until they're out in front of your kids' school selling drugs.

(CROSSTALK)

ROGINSKY: I disagree. I don't think.

BOLLING: Can I agree and disagree with you at this very same time?

ROGINSKY: I would love that.

BOLLING: I agree with you that you're right. There three strikes apply to even low level drug crimes.

GUILFOYLE: Guys, guys, no.

BOLLING: No, stop.

GUILFOYLE: That's erroneous.

BOLLING: Stop and it's should.

GUILFOYLE: That's wrong. Christ.

BOLLING: All right. Whatever. Three strikes you're out. There are a lot of criminals with low level not violent crimes who are spending the life in prison. Hillary Clinton and Bill Clinton are trying to walk back. The issue isn't whether that's right or wrong. You and I can agree that we think maybe some low level drug offenders should be let out of prison.

GUILFOYLE: Right.

BOLLING: We will agree with that. The problem is Bill Clinton had the crime bill in '94, he pushed it, it failed, he pushed it again. Hillary got out there, got into the media and pushed hard for the crime bill to pass. They got the crime bill and now, they're trying to walk it all back.

GUILFOYLE: It's about 20 years. You can't evolve?

(CROSSTALK)

BOLLING: She has evolved on the crime bill. She evolved on gay marriage. She has evolved in immigration.

(CROSSTALK)

BOLLING: She has evolved on Wall Street. She has evolved on everything.

GUILFOYLE: Bolling, just really quick, because otherwise, we will get 300,000 emails and tweets about this. Three strikes, you have to have two violent offenses, the third you could be put in if you didn't have a violent offense. That's has been changed. You don't have people going in like pick pocketing a chap stick at CVS going into prison. You don't have people who are low level offenders in state prisons, correctional facilities, maximum security prisons, you do not.

GUTFELD: Do you know what's amazing?

(CROSSTALK)

GUTFELD: The person who came up with strike strikes is obviously into baseball. What about if that person was into bowling? It would be 10 strikes. It would have been a disaster.

BOLLING: Gutter ball.

GUTFELD: We have an entire justice system based on a sports analogy, a sports metaphor. That's kind of freaky.

GUILFOYLE: OK.

(CROSSTALK)

FRANCIS: Come on this side of the table you sound like Bolling and me.

GUTFELD: I do believe there are too many people in prison, but I just believe there are too many people.

BOLLING: Where were you on a debate on letting low level drug offenders?

(CROSSTALK)

GUILFOYLE: Those are federal guidelines. You can let some of those dudes out. That's all I'm saying.

(CROSSTALK)

GUTFELD: I'm against people being arrested for regulatory crimes like stuff like (inaudible), stuffs like that.

GUILFOYLE: Do you realize nobody is going to prison for that, right? They don't even have room for people like that in county jail.

GUTFELD: You're right.

(CROSSTALK)

GUTFELD: They keep going in and out and in and out instead of focusing on the rapists and murders.

(CROSSTALK)

UNIDENTIFIED FEMALE: And the Lindsey Lohan who has gotten 17 chances, and why she is not in prison.

(CROSSTALK)

FRANCIS: What about the statement about how the Clintons will say anything to get elected?

GUILFOYLE: We don't put people in prison that have substance abuse issues, unless they break the law by committing DUI, killing people, and doing things like that. Then it becomes a different subject matter.

GUTFELD: I want to quote a tweet from Ross Douthat, increasing average time served for murder from 5 to 15 years amid a historically high murder rate does not strike me as an unsound policy. He's referring to the crime bill and I agree. We'll be right back.

First, Sofia Vergara and her ex-fiance take the feud over their two frozen embryos to two morning talk shows. Who should win the baby battle next?

(COMMERCIAL BREAK)

BOLLING: Welcome back. Time for -- yep, the Fastest Seven Minutes on television. Three convictive stories, seven concise minutes, one convivial host. First up, as the field of candidates for president is beginning to take same, Ben, Rand, Marco, Huck, and Hillary are in, more to follow soon. Conan O'Brien nap had some fun this week, speculating that if there were a movie about 2016 which actors would play which candidates. Here's his cast of characters.

(BEGIN VIDEO CLIP)

CONAN O'BRIEN: Mike Huckabee is going to be played by Kevin Spacey. I think that's very good casting. Former Florida governor Jeb Bush will be played by a young Willard Scott. Ted Cruz will be played by Kevin from The Office. Lindsey Graham will once again be played by Carol Brady. We're all happy about that. Hillary Clinton will be played by David Spade. That makes sense. Rand Paul will be played by late '90s era Justin Timberlake. Chris Christie will be played by Mama June from Honey Boo-Boo.

(END VIDEO CLIP)

(CROSSTALK)

GUILFOYLE: Wow. So mean.

GUTFELD: Wow.

BOLLING: Do you want to take any of these on?

(CROSSTALK)

GUTFELD: Poor Chris Christie.

FRANCIS: That was terrible. I think Hillary Clinton should be played by Martha Stewart or Marie Antoinette. That would work. John Boehner, George Hamilton, obviously.

(CROSSTALK)

GUILFOYLE: Or Eric Bolling.

(LAUGHTER)

GUTFELD: Moving right along, can we point to the obvious here? To have David Spade play Hillary Clinton, that's another job for a woman that is being taken by a man. That's pretty sexist. And he will probably get paid more. He is a man, right? Spade?

BOLLING: Yeah, I think so.

GUILFOYLE: Spade dates super models.

GUTFELD: Who doesn't these days?

GUILFOYLE: That's true.

GUTFELD: All right. Let's move on.

GUILFOYLE: Women like funny guys.

FRANCIS: He's not funny, that's the tragedy. Sorry.

(CROSSTALK)

BOLLING: The McDonald's Hamburglar is back after 13 years of clean living. The no you suburban dad is drawn back into a life of crime by the new sirloin third pound burger.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Robble, robble.

(END VIDEO CLIP)

BOLLING: So around the table, the hot dad turned criminal burger thief, good, bad or bad, good and/or bad?

GUTFELD: Why is no one addressing the root causes of his criminality? I mean, can you argue that society has a lot to blame for this? Economic inequality has forced had him to steal for food. Should he be incarcerated for this? Could climate change have played a role in his drive to find this food because hotter weather makes people angrier?

BOLLING: Three burgers and you're out?

ROGINSKY: My question is does he get convicted if he steals three burgers in a row.

GUILFOYLE: Yes, I think so. What kind of...

GUTFELD: Steal the meat, do the crime.

FRANCIS: They're also trying to push kale. He should just steal the kale. That will save McDonald's right there.

GUILFOYLE: Could he steal all the kale?

BOLLING: Is that Charlie Gasparino, by the way, in that picture?

GUILFOYLE: Oh, my gosh. Now you've done it.

BOLLING: I can't even tell you the e-mail that went down yesterday with Gasparino.

GUILFOYLE: By the way, what does that say? Because you called him a hot - - the hot dad? What are you saying about Charlie?

BOLLING: Let's move to the third one. Last up, there's been a very public legal battle between "Modern Family" star Sofia Vergara and her ex-fiance over two embryos they froze while they were still together. Today they both appeared on dueling morning shows and continued the war of the embryos.

(BEGIN VIDEO CLIP)

NICK LOEB, SOFIA VERGARA'S EX-FIANCE: I have tremendous respect for Sofia. She's very successful; she's very smart. You know, we filed this back in October. This is not something that is new. That has nothing to do with this at all. This has to do with bigger really moral, you know, legal, ethical concepts that are out there with about lives that we've already created. I wouldn't just toss them aside no different than a child that had been born.

SOFIA VERGARA, ACTRESS: You know, I've been working very hard for 20 years to get to this point where I am. I promote all my movies, all my work, but I don't like promoting my private life. And I don't understand why this person -- you know, I don't want to allow this person to take more advantage of my career and try to promote himself, get press for this.

(END VIDEO CLIP)

BOLLING: So what do you think, K.G.? This is a big issue.

GUILFOYLE: I think it's a very important legal issue, and it's been addressed by ten states; and now the state of California will have to address it. They're going to have to come forward with some kind of uniformity, because this is happening every day across America.

This is an example right now of a young man trying to do something to preserve the two lives that they created together, so he has a right to go to court and try and plead his case to say that, "Listen, I don't want any money or anything from Sofia." It doesn't matter who it is, whether her name was Jill. He wants to be able to take these two embryos that are baby girls and take care of them for the rest of their lives.

And the issue becomes a legal one as to whether or not there was a contract between the two people. However, all there was, was a form that was provided by the clinic that prevents the clinic from being sued, protects them from liability. So the issue is: were they able to go together to make a decision about whether or not they should go forward with this if they separated? That's not addressed on that form.

So courts in other states have thrown that out, and then they work with the couple and you have a legal agreement together to decide what to do. So there's some real issues here.

BOLLING: Should either one prevail?

ROGINSKY: Yes, I mean, I personally think she should prevail.

BOLLING: She should?

ROGINSKY: I do. You know, I think understanding whether they were legal or not was they were going to make a joint decision to bring children or not bring children into the world. And that these embryos are sitting there.

BOLLING: If she prevails -- correct me if I'm wrong -- they destroy the embryos?

ROGINSKY: I think she said she wants them status quo, not destroyed. Just wants them...

GUILFOYLE: There's some conflicting statements on that, though, that she doesn't want to go forward with that.

FRANCIS: I don't know why the form -- you sit there and you go through the form, and it says every eventuality of what would happen. They signed a form of what would happen, and they said that both needed to consent in order to make these embryos come to term or to put put them into a surrogate.

GUILFOYLE: It doesn't cover whether or not the parties if they separated.

FRANCIS: Well, they weren't together.

GUILFOYLE: It doesn't matter. They were engaged when they went to do it. So the issue is what happens if the two separate? Then you should balance the interests of the two parties. Should there be a presumption in favor of life, legally, for the party that wants to bring the embryos to term? That's where I think there's an issue.

ROGINSKY: But you know what's interesting? I just remember this from giving birth in New York state, at least. You as the mother have the right to put whoever you want as the father on the birth certificate. Right? I mean, that's your decision as to what to do. The father actually, I think, has no say in the beginning about it.

And so the question -- the question for the embryos is legally, is he really even technically the father? I know he is, but legally, does she have the right...

GUILFOYLE: They put them together, so, yes.

ROGINSKY: I'm saying to you even if you have consensual sex and have children and they're born.

GUILFOYLE: If you have embryos that you had with an ex-boyfriend, right, and then you guys broke up and he wanted them destroyed, and this was your chance to be able to go forward and have children -- you want to do it on your own. "I don't want any money from the ex-boyfriend. I want to carry these babies to term and give them a great life that I know that I can give them personally as a single parent." You're a single mom. I'm a single mom. My father raised me by himself since I was 10, 11 years of age, you know. So I think it can be done.

BOLLING: Can I bring Greg in?

ROGINSKY: I have a different view as to what I would do.

BOLLING: Greg, your thoughts on...

GUTFELD: As a woman I think you're all wrong. No. This is -- the problem with science is that it enables us to achieve things before we can actually understand them. The technology is always outstripping our morality. We're struggling with it after the fact.

I find it odd that you have these unborn babies in suspended animation that, while everybody is talking and everything, they're like in storage like a collection of baseball cards. And that seems to me very strange.

I think technology is awesome, I think it's -- you know, the more we know the better it is, but it seems strange.

GUILFOYLE: The law has to catch up with it.

GUTFELD: The law has to catch...

GUILFOYLE: Because it's different in different states. So that's the problem.

GUTFELD: That's true.

GUILFOYLE: If you go to California or Illinois, it's a different outcome.

GUILFOYLE: Let's leave it right there. A lot to think about, a lot to chew over.

Next, did Tom Brady lie to the world about deflating those footballs? That's what an investigation implies. The keyword here, folks, is implies. Will the NFL now take action against the Patriots quarterback? Coming up.

(COMMERCIAL BREAK)

FRANCIS: Patriots quarterback Tom Brady denied any wrongdoing in January with the tampering of footballs at the AFC championship game.

(BEGIN VIDEO CLIP)

TOM BRADY, QUARTERBACK, NEW ENGLAND PATRIOTS: I didn't alter the ball in any way. I have a process that I go through before every game, where I go in and I pick the balls that I want to -- the footballs that I want to use for the game. Our equipment guys do a great job of breaking the balls in, you know, they have the process that they go through. When I picked those footballs out, at that point, you know, to me they're perfect.

I feel like I've always played within the rules. I would never do anything to break the rules. I believe in fair play.

(END VIDEO CLIP)

FRANCIS: I love that hat. I'm still trying to get it on eBay.

Meanwhile, was he telling the truth? An investigation ordered by the NFL determined Brady did know balls were deflated.

In a new report text messages were released between two Patriots employees. They imply that footballs were being modified for Brady during regular season games. In one text, equipment assistant John Jastremski wrote, "Tom is acting crazy about balls," unquote. Stop snickering.

Locker-room attendant Jim McNally writes, "Tom" -- expletive -- "is going to make that next ball an" -- expletive -- "balloon."

In another one, Jastremski says, "Talked to him last night. He actually brought you up and said you must have a lot of stress trying to get them done."

And this one from McNally: "The only thing deflating Sunday is his pass rating."

All right. So we have a lot of...

GUILFOYLE: Glad we got through at that.

FRANCIS: ... would-be comedy on these text messages going back and forth, which really proves that they were doing this on purpose, but there's no smoking needle, so to speak. We don't know who told him to do this.

GUTFELD: Everyone has their own performance enhancer. Lester Hayes had the Stickum. You had Joe Niekro had the nail file. You had Gaylord Perry with Vaseline. Before each episode -- Gaylord Perry would put Vaseline on his zipper, and then when he would pitch the ball. Before each episode of "The Five," I swallow a live gerbil.

GUILFOYLE: You know what?

GUTFELD: It keeps me alert. Whatever helps.

ROGINSKY: Like Richard Gere?

GUILFOYLE: You're just a copycat.

GUTFELD: What is the problem with Serra High School? Barry Bonds, Tom Brady? I went to Serra High School. You are letting me down. Am I going to be the next?

BOLLING: There's no one accusing you of deflated balls whatsoever, Greg.

A couple of thoughts. They don't have -- there's no actual tie to have a close tie to Brady. They're never going to get anything out.

This is why this is the stupidest rule in all of sports. Who cares how much air Tom Brady wants in his football? He takes his football, throws it to one of his receivers. The defense doesn't even get involved in that football except for an interception. It should not matter.

Baseball is different. You take your ball and you throw it at a batter. Then it's a different scenario. Football, everyone should be able to throw whatever inflation football they want to throw. Dumb rule.

FRANCIS: This is why it matters, because Tom Brady has been lifted to the level of a deity. I mean, he's phenomenally gorgeous, let's just admit it.

GUTFELD: Yes, that's true.

FRANCIS: He's the quarterback of the century. His wife is a supermodel. Even his baby mama is gorgeous for his first.

BOLLING: What did (UNINTELLIGIBLE) do wrong?

FRANCIS: We don't know. We don't know...

GUTFELD: Everything you said has nothing to do with the football.

FRANCIS: But what we're saying is we now know...

GUILFOYLE: Show the football picture again.

FRANCIS: ... with deflated footballs. Doesn't it take some of the gold off him?

GUILFOYLE: That picture is the worst picture I've ever seen in my life. I nearly feel physically sick when I see it.

ROGINSKY: All right. I don't know the first thing about football, but I know that a good-looking man -- he is a good-looking man, so he can keep talking. Talk, talk, talk. I don't care what comes out of his mouth.

GUTFELD: How are you portraying women, in their analysis of football? Instead of discussing the issue, you're looking...

FRANCIS: I'm trying to discuss the issue.

GUILFOYLE: Do you know what? I think it does matter. I think it does matter, because there are certain rules and guidelines. If they broke those rules, there should be repercussions. Seriously.

GUTFELD: But hot people shouldn't go to jail.

GUILFOYLE: Suspension from games.

BOLLING: How do you get change in rules? How do you get change in laws? When something stupid like this this happens, the people who make the rules and the laws, they go, "Oh, that was a stupid rule."

GUILFOYLE: Here's the problem. You all should think people should be able to use, like, steroids; and you probably think it's fine to put tar on balls.

BOLLING: This is why -- this it matter when both quarterbacks have to have the same inflation on the ball? Why does that matter? Someone e-mail me and let me know.

FRANCIS: The problem is they said it's more than probable -- more probable than not that Brady was at least generally aware of inappropriate activity.

GUILFOYLE: Correct.

FRANCIS: More probable than not? I mean, that's nothing.

BOLLING: Right. You can't convict someone on more probable than not.

FRANCIS: We'll leave it there.

GUTFELD: Can we just wait? No, let's not leave it there. Can we stop using the word "gate" after everything?

FRANCIS: No, sorry.

A lot of people have a lot of questions for Hillary Clinton, who's been avoiding the press since she rolled out her campaign. We've got five we'd like to ask her, and you'll hear them next.

(COMMERCIAL BREAK)

ROGINSKY: Since Hillary Clinton launched her presidential campaign on April 12, "The New York times" tabulated she's only answered seven questions from reporters. People on both sides of the aisle would agree there are plenty more she needs to answer. So we're going to pose some we would ask Secretary Clinton if we had the chance to.

I want to start. Here's my question. This woman is going to win the Democratic nomination. Finally, somebody who doesn't need to pander to Iowa voters. Secretary Clinton, are you going to come out and say we finally need to get rid of these ethanol subsidies in Iowa?

BOLLING: Good question.

ROGINSKY: Thank you. Fantastic reporting on my part.

BOLLING: Good question.

GUILFOYLE: Well done. Round of applause for yourself.

ROGINSKY: Thank you. Yes, I'm patting myself on the back.

Kimberly, go ahead.

GUILFOYLE: OK. Why were you so ill-prepared to run for president? Why did you think it was a good idea to have your own personal server in Chappaqua and then shred and delete all of these e-mails?

And why -- I have multiple questions -- why would you do something so unethical and illegal as accepting donations from a foreign country when you knew that you were going to be running for president?

ROGINSKY: Kimberly had a 17-part question. Greg, what is your question?

GUTFELD: I have a two-part question. If you blamed Benghazi on the video, will you now blame the Texas terror attack on a cartoon, because that would be consistent?

Part two, what is the best lamp for throwing?

ROGINSKY: Interesting. That's a fascinating question.

BOLLING: Lava lamp, you would think.

ROGINSKY: Eric.

BOLLING: My turn? Again, Benghazi, I would say tell us everything you know about Benghazi and, specifically, do you have anything to say to Chris Stevens' family and the other three that were killed there?

ROGINSKY: I think she's answered that one 17 times.

BOLLING: NO, I don't think she has. I don't. I think she's testified that she wasn't really involved. And you know, it was a movie at first. And then maybe it wasn't the movie, and then the video.

GUILFOYLE: And then what difference does it make?

ROGINSKY: I think -- but I think she's coming to testify again if I'm not mistaken.

BOLLING: I hope so.

ROGINSKY: One more time, yes. (UNINTELLIGIBLE)

FRANCIS: I would bring Wonder Woman's lasso of truth, because I know Clintons are a little slippery. So I would wrap that around her first to get the answer. And then I would ask her, "Bill says that he goes out and gives the speeches because he's got to pay your bills. My question is how much money do you need? I mean, you've got somewhere between 100 and $200 million in the bank, according to Forbes and everyone else. So if he's doing that to pay your bills, how much money do you need?"

GUILFOYLE: They're always psychologically panicked about being broke.

GUTFELD: Yes.

ROGINSKY: Well, the question is, is Chelsea finally on limits again now that she's coming out publicly? Chelsea (UNINTELLIGIBLE) for a long time. But I feel like Chelsea is sometimes on limits, off limits. It depends.

FRANCIS: I think she's off limits. I think it's like wives during the election.

GUTFELD: I think now that she's in the machine -- she's in the machine, she's on limits.

GUILFOYLE: She's the spokesperson now for the foundation.

BOLLING: That's true. Defending the foundation, correct?

GUILFOYLE: She's thrust herself right into the public arena. So...

ROGINSKY: My attitude is if she's going to be out there doing stuff, on behalf of her mom, she's in the campaign.

GUTFELD: Where's Roger Clinton?

ROGINSKY: Good question. That is a great question.

GUTFELD: Where is Roger Clinton?

GUILFOYLE: Hiding out somewhere.

GUTFELD: Yes.

GUILFOYLE: In hiding.

ROGINSKY: That's a fantastic question. You know where he is? He's with Billy Carter, who may or may not be alive.

GUTFELD: Yes.

ROGINSKY: I don't know about that.

Careful. I'm going to be careful about that. All right. "One More Thing is up next."

(COMMERCIAL BREAK)

GUILFOYLE: It's time now for "One More Thing." We begin with Eric. Mr. Bolling.

BOLLING: So my "One More Thing" was going to be what's a dad bod, the insight into the latest male body craze, but Ford (ph) put the kibosh on that. Whatever. He said, "You can't do that."

GUILFOYLE: You're going to take your shirt off on TV?

BOLLING: I was, but I'm not. OK. Let's bring this back together.

FRANCIS: I was going to do the same thing.

GUILFOYLE: That was so weird.

BOLLING: Can we regroup? Let's regroup. All right. For my serious "One More Thing," today Hall of Heroes NYPD put up the names of four officers who were killed in the line of duty in 2014: Raphael Ramos, Wenjian Liu, Dennis Guerra and Michael Williams. They passed away last year; they were killed in the line of duty. Also mentioned was Brian Moore, he's 2015.

Again, respect law enforcement officers. They risk their lives for our safety, and they should be acknowledged.

GUILFOYLE: Work it out in the court.

BOLLING: Yes.

GUILFOYLE: Greg's next.

GUTFELD: All right. Tonight I'm on "The O'Reilly Factor" with Bernie McGuirk. We're talking about a vegan strip club, which is...

GUILFOYLE: No way.

GUTFELD: How often...

ROGINSKY: In Oregon?

GUTFELD: What?

ROGINSKY: In Oregon?

GUTFELD: Somebody had a part-time job before they got to FOX.

ROGINSKY: I know all about the strip club and for professional reasons.

GUTFELD: Yes, right.

ROGINSKY: It has nothing to do with stripping. I'll call you later.

GUTFELD: It's a beautiful job.

GUILFOYLE: It's the food, right?

GUTFELD: Time for...

(BEGIN VIDEO CLIP)

GUTFELD: Greg's Celebrity Corner.

(END VIDEO CLIP)

GUTFELD: All right. So on the set of his new movie Alec Baldwin had a bit too much to drink. He wandered out of his trailer onto fence where people became very worried. We have tape here.

(BEGIN VIDEO CLIP)

(BLACK BEAR SITTING ON A FENCE)

(END VIDEO CLIP)

GUTFELD: I think you can see him. He's stuck on a ledge there and none of the -- there's the director from the film trying to get Mr. Baldwin back to his trailer. They were trying to offer him some fruit, some vegetables.

GUILFOYLE: Oh, my gosh.

GUTFELD: Bystanders had called for help. He was -- see -- Alec Baldwin scares easily, and he got higher and higher, but he was -- do you know how they got him back? They enticed him into his trailer with a bag of Funyuns and cheap pornography.

GUILFOYLE: That works for a lot of people.

GUTFELD: It does. That's how I got here.

ROGINSKY: You came up for the food (ph)?

GUTFELD: Yes. Well, it's pork fat, maybe.

GUILFOYLE: All right.

GUTFELD: Let's move on, shall we?

Please.

FRANCIS: I have to follow that? Are you kidding me?

The feds have nothing better to do than to try and turn out the lights in Times Square. Yes, they say the signs are too big.

Did you know that Times Square gets $90 million in federal highway money? That in and of itself is very questionable. But now the feds are saying that it's a route on the national highway system, and as a result, it -- the rules of the 1963 Highway Beautification Act apply to Times Square, which means the signs can't be bigger than 1,200 square feet. Which if you've been out there you know they're a heck of a lot bigger than that. So they're trying to say they have to take them town.

GUILFOYLE: I would challenge the legality of that. That's not technically a highway.

FRANCIS: I think it's a shake down. Well, no, it's an artery. It's a throughway. Well, they're getting the money. They're getting...

GUILFOYLE: I will tell you what that is, it's a blocked artery. You cannot get through there.

BOLLING: Ninety million dollars per year?

FRANCIS: Ninety million dollars -- now you're asking me...

BOLLING: Here is why, the Times Square group makes...

FRANCIS: Twenty-three million. They make $23 million a year. Times Square brings in $23 million a year.

Anyway, this is...

GUILFOYLE: You can take it.

GUTFELD: I'm already texting my family.

(CROSSTALK)

FRANCIS: ... already arguing over it.

GUILFOYLE: Take it to the corner after the show, funny people.

FRANCIS: (UNINTELLIGIBLE) hyper.

ROGINSKY: All right. I want to say this: 35 years ago I was seven years old. Now everybody knows how old I am. My parents and I came to the states. They were political refugees, and that's a picture of me when I was little.

GUILFOYLE: Aww.

FRANCIS: Aww.

ROGINSKY: I'm never going to live that picture down. I fully acknowledge it. But we had 90 bucks in our pocket...

GUTFELD: Wow.

ROGINSKY: ...and didn't speak a word of English, and this country has given us everything that we could have possibly imagined.

GUTFELD: I'm going to cry.

ROGINSKY: Thank you. And we could be Democrats, Republicans, we disagree on issues, but we can all agree this country is the greatest country on earth and I'm living proof on that.

GUILFOYLE: Oh, my God. Julie, I will hug you after this.

ROGINSKY: Thank you.

GUTFELD: And I watch.

GUILFOYLE: I'm going to send a hug now to a very special friend of "The Five," Brian Kilmeade celebrating his birthday today.

BOLLING: Sixty? The big 6-0?

GUILFOYLE: NO. Why are you such a hater? He's 50. Look at him. He's so youthful and happy.

GUTFELD: Which one is he?

GUILFOYLE: I'm going to see him tomorrow morning. Yes, for "FOX and Friends." I'm going to give him a birthday hug and kiss. So happy birthday, Brian.

BOLLING: That's a "One More Thing."

GUILFOYLE: No. My "One More Thing" is also please catch me on "Hannity" tonight. We're going to be talking about the case with Sofia Vergara and Nick Loeb. We'll have Dr. Ablow. Mercedes Colwin will join me. Hosting "FOX & Friends" tomorrow. "Outnumbered," 12 to 1, and right back here...

GUTFELD: Wow.

GUILFOYLE: ... 5 to 6. Yes. Have a K.G. sandwich while you're at it.

GUTFELD: Watch it.

GUILFOYLE: Set your DVR so you never miss an episode of "The Five." That's it for us tonight. "Special Report" is next.

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