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Kelly File

Fight against ISIS entering new phase?; Most bizarre lawsuits of 2015

This is a rush transcript from "The Kelly File," December 22, 2015. This copy may not be in its final form and may be updated.

SANDRA SMITH, GUEST HOST: Breaking tonight, a major military operation against ISIS under way as we speak. Iraqi forces under the cover of U.S. air strikes, and with the support of American advisers, watching an assault against an ISIS stronghold just miles from Baghdad.

Welcome to "The Kelly File." I'm Sandra Smith, in for Megyn Kelly tonight.

In May, ISIS overrun the city of Ramadi. Iraqi troops retreated, the defeat was largely seen as an embarrassment, exposing a huge weakness in the U.S. strategy to defeat the Islamic State. Ramadi's fall was a big blow. The city is critical in that region. It's the capital of the country's largest province. And just 60 miles from the Iraqi capital, it was just eight months ago that ISIS raised their black flag, imposing their cruel rule over Ramadi's half a million residents.

And tonight, we're learning that many of those same civilians are being used by ISIS as human shields. Overnight, U.S. and coalition aircraft hammered ISIS positions and right now, Iraqi forces are struggling for control, facing homicide bombers, sniper fire, and hundreds of IEDs lining the city's corridors.

For more on the battle and how it will impact the greater fight against the Islamic State, General Jack Keane is retired four-star general, former vice chief of staff of the U.S. Army. And chairman of the Institute for the Study of War.

General, welcome tonight.  

GENERAL JACK KEANE, FORMER ARMY, VICE CHIEF OF STAFF: Glad to be here, Sandra.  

SMITH: So, where are we as far as the fall of Ramadi, to the Iraqi army?  Will this happen? We know that this military operation is under way right now.

KEANE: Yes, almost a certainly is going to happen. The reality is the Iraqi army has got this thing surrounded north, south and east. They've been working on this, you know, for weeks. There were thousands of ISIS fighters in Ramadi. They're largely gone. They're down to a few hundred.  They are using the people as human shields, as you indicated, but the most significant obstacle the have are literally thousands of IED mines that are fortified and protecting the ISIS fighters inside the city. The Iraqi army has the capability to breach that, it would be deliberate, it would be methodical, they're going to take casualties doing it, certainly but they will eventually take Ramadi to be sure.

SMITH: And how big of a victory would that be, General?

KEANE: Well, it would take us back to where we were prior to May. We can't make too much out of it, but it does underscores something that we don't say enough. Because we've been so critical of the President's lack of a coherence strategy that's moving far too slow. Listen, the Kurds have literally beat ISIS at every battle that they have fought with airpower supporting them to take back their land in northern Syria and northern Iraq. Now, admittedly that's not Raqqa in Syria and that's not Mosul in Iraq, but these fighters, these ISIS fighters are not ten feet tall, but the real problem we have here, and so our audience understands, is that ISIS is sitting on Sunni lands. And to retake that land, we don't need just Shias in the Iraqi army to do it. Because they won't hold it.

To hold that land, we need Sunni travel forces. And right now, we don't have anywhere near the numbers that are necessary to do that in Iraq or in Syria, and in Iraq, the specific problem is as much a political one, Sandra as it is military. By that I mean, President Abadi has got to bring the Sunnis back into the political process, but the Iranians are pushing against that. And we have got as a strategic political objective to reduce Iran's influence on the Iraqi government, and get these Sunnis back into the process, so we can train tens of thousands of Sunni tribal forces so they can hold this territory and protect it. The Iraqi Shias are not capable of doing it. This is the elephant in the room that just doesn't get talked about enough.  

SMITH: All right. Well, tonight we know, according to U.S. intelligence that there's about 300 Islamic State fighters hunkered down in the city of Ramadi. You say it would be a victory, if they were able to recapture Ramadi. And that leads to some optimism about retaking Mosul and the rest of Iraq. But as we look at the U.S. involvement, General Keane, we know that Iraqi forces have been backed by these U.S.-led air strikes, U.S. advisers were on the ground. We know they're not involved in direct combat. The Pentagon has offered firepower from Apache helicopters, but we have not yet provided them. General Keane, should we be doing much more in terms of this fight and our U.S. involvement at this point?

KEANE: Oh, yes, absolutely. And the Sunni tribes would welcome that.  They want to see U.S. commitment and U.S. resolved. We literally have to once and for all get all of the advisers on the ground with the fighting units, the trainers to increase the through-put rather dramatically I think, four and fivefold and get the tactical air controllers on the ground so these airstrikes are that much more effective. That would probably Sandra take our forces in Iraq from 3,000 in excess of 10,000, and that will also accelerate what we're doing, because the problem we have with ISIS, if we drag it out the way the President wants, this is going to be a several-year campaign. ISIS keeps killing. They will keep killing people in Europe. They will keep killing people in Turkey and Lebanon. And as we now know, painfully aware, they will try to kill Americans as well. So, stop the killing. We have to take the territory in Iraq and particularly the territory in Syria away from them.  

SMITH: All right. General Keane live for us tonight, thank you for joining us.  

KEANE: Merry Christmas, Sandra.  

SMITH: Merry Christmas to you.  

Also breaking tonight, just moments ago, the Pentagon naming the six U.S. service members killed in a Taliban homicide attack in Afghanistan yesterday just days from Christmas, and nearly one year after President Obama declared America's combat mission in Afghanistan to be over.

National Security Correspondent Jennifer Griffin with more on the fallen.

JENNIFER GRIFFIN, FOX NEWS NATIONAL SECURITY CORRESPONDENT: Sandra, we now know more about the American service members killed by a Taliban suicide bomber in Afghanistan. Staff Sergeant Peter Taub, a 30-year-old airman, married with a three-year-old son and another child on the way, was the son of an owner of a D.C. restaurant named Bub and Pops. His father posted the following on Facebook. Quote, "My son Chief Jon's brother, Staff Sergeant Peter Taub was one of six killed yesterday in Afghanistan." The restaurant is closed for the rest of the week.

Air Force Major Adrianna Vorderbruggen helped to return the military's "Don't Ask, Don't Tell" policy and became one of the first active-duty service members to marry shortly after the law was repealed. She and her wife have a young son. She is the third woman killed on an active duty in Afghanistan this year.

New York Detective Joseph Lemm from the Bronx served on the force for 15 years. A re-service, this was his third tour to Iraq and Afghanistan.  When he surprised his wife Christine and their two kids coming home after his last deployment, he said all he wanted was pizza, American pizza.  

Also confirmed tonight, Michael Anthony Cinco of Rio Grande Valley, Texas and Chester McBride, a star football player from Savannah State University who joined the Air Force after graduation. And Staff Sergeant Louis Bonacasa of Upstate, New York. He had wanted to join the marines, but his mom talked him out of it. He met his wife in boot camp he leaves behind a five-year-old daughter -- Sandra.  

SMITH: All right. Thank you, Jennifer. Well, back here at home, new concerns tonight over how President Obama is handling the threat post by radical Islamic extremists who are actively planning attacks inside the U.S. Homeland.  

Rick Grenell is a former Bush administration's State Department's spokesman and former policy adviser to the U.S. ambassador to the U.N. Rick, much of the criticism of the President has been, how can you fight an enemy that you will not identify?

RICK GRENELL, FORMER STAFF DEPARTMENT SPOKESMAN: Yes, not only really not identify, but he goes out of his way to say, that ISIS is not Islam. And that's just really a phony argument. And I think it's causing us to not understand the enemy. Look, these are a group of people, not just psychopaths with guns. But this is a group of individuals that believe they are the purest form of Islam. They believe that they are acting in Mohammed's name. They quote scripture from Mohammed. They quote scripture from the Koran. They are acting because they believe that it is their duty and that they get heavenly rewards like virgins and riches, all because they kill infidels, we have to understand that we are dealing with radical religion. We are not dealing with people who just want to kill someone, because they want more power, because they're a psychopath.  

SMITH: And when talking about their funding, which we know is billions of dollars that they continue to raise, Rick, your point is that they are funded through radical religious believers. I mean, they're getting support around the globe, when you just look at the $500 million a year that they are making, selling oil on the black market. I mean, their ability to recruit, their ability to retain fighters? It proves to be very strong yet today.

GRENELL: Look, they want a state, they want a caliphate state where they conduct the rules that are, you know, from laws and rules that are from, you know, the Middle Ages. It's really archaic, but they believe that they are doing the right thing, because Mohammed and the Koran called them to do this. That is their warped sense. Now, look, it's important to say that most Muslims rejects this, but ISIS is grabbing the religion and twisting it and using it as their motivation.

SMITH: Uh-hm.

GRENELL: We have to understand that they are using this religion to do what they think is right and that they are the purest form in this religion. It's a cause that we have to understand first and we have to call it out.

SMITH: All right. Rick, thank you for joining us tonight.  

GRENELL: Sandra, good to see you.  

SMITH: Breaking tonight, GOP 2016 front-runner Donald Trump making headlines with this moment.  

(BEGIN VIDEO CLIP)

DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: She was going to beat -- she was favored to win and she got (bleep) -- she lost.

(END VIDEO CLIP)

SMITH: Well, we have Trump's widely criticized remarks in full and a brand-new statement from the Republican poll leader defending his choice of words.

Plus --

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: Are there certain circumstances around being the first African-American president that might not have confronted a previous president? Absolutely.

(END VIDEO CLIP)

SMITH: Does criticism of President Obama have more to do with his race than his politics? We have got a fair and balanced debate, coming up.  

And after a massive Black Lives Matter demonstration disrupted holiday shoppers at the mall of America last year, a judge has banned three leaders from attending a protest scheduled for tomorrow. But will it be enough to stop the chaos this year?

(BEGIN VIDEO CLIP)

(PROTESTERS)

Pigs in a blanket, fry them like bacon!

Pigs in a blanket, fry them like bacon!

Pigs in a blanket, fry them like bacon!

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: Hillary, that's not a president. That's not -- she's not taking us to -- everything that's been involved in Hillary has been lawsuits. You take a look, even her race to Obama. She was going to beat Obama. I don't know who did worse? I don't know. How does it get worse? But she was going to beat. She was favored to win and she got (bleep) -- she lost. I mean, she lost.  

(END VIDEO CLIP)

SMITH: That was Republican 2016 front-runner Donald Trump last night slamming the democratic front-runner in a series of highly criticized comments making headlines today. We're just getting new reaction from Mr. Trump. A short time ago, he tweeted that what he said was not vulgar and the mainstream media got it wrong. Trump and Clinton's war of words come as new polling released today shows that both presidential candidates are under water when it comes to whether American voters would be proud to elect them. Fifty percent of voters would be, quote, "Embarrassed if Trump were president, to the 23 percent who would be proud." Clinton also not breaking even on pride with 35 percent, potentially embarrassed and 33 percent proud. All of this as Trump maintains his lead atop that GOP field. That same Quinnipiac poll has Trump in first place among Republican voters at 28 percent with Senator Ted Cruz of Texas closing in on the frontrunner at 24 percent.

And joining me now is Rich Lowry, editor at National Review and Fox News contributor. And Alan Colmes is here. And he's so excited to get to all of this with you, host of the "Alan Colmes Show" on Fox News radio.

ALAN COLMES, EDITOR, NATIONAL REVIEW: Not a half time.  

SMITH: Alan, I could barely get to the beginning of this segment because you were just jumping over the table.

RICH LOWRY, EDITOR, NATIONAL REVIEW: He's doing the best Trump impression.  He's seeing the best Trump impression.

COLMES: I was responding -- I was going to speak some Yiddish, but you would have bleeped it out. I didn't hear him speak Yiddish on cable news.  And you know, certain people who are not Jewish maybe should avoid Yiddish words. You know what I am saying? So, that was I was just --

SMITH: I'll let you answer that question.

LOWRY: Well, I really have to take a powder on this one. Because I'm not in any position to criticize Donald Trump for using salty metaphors, given some things I've said about him in the past. But you know, I think the amazing thing about this Q poll, 50 percent of voters would be embarrassed to have Trump as a president of the United States which you don't have to be a political scientist to know. That's a pretty poor finding, but yet he's only seven points behind the democratic front-runner Hillary Clinton?  He's basically tied with Hillary among Independents, and they have equal numbers on honesty and trustworthy. Trump goes around kind of making stuff up almost every day. Hillary Clinton is just as credible as Donald Trump with American voters.  

COLMES: Let's not forget, there's only four points of Quinnipiac poll between him and Ted Cruz. I think Trump's descending. I think he's peaked. Four points in this poll is about as good as he's going to get.

SMITH: So, the closer they get in the polls, clearly we're going to see the attacks, I don't know, you tell me, we're going to see them step up, their game. And Hillary Clinton today at a campaign rally somewhat responded, but not directly to Donald Trump's comments. A little girl ask her a question and she responded with this.

(BEGIN VIDEO CLIP)

HILLARY CLINTON, D-PRESIDENTIAL CANDIDATE: You are looking at somebody who's had a lot of terrible things said about me. Luckily I'm old enough that it doesn't particularly bother me. That's why it's important to stand up to bullies wherever they are and why we shouldn't let anybody bully his way into the presidency. Because that is not who we are as Americans.

(END VIDEO CLIP)

SMITH: Well, Alan, I know you like that. What did you think?

COLMES: Well, look, you know, what started this whole feud, Hillary Clinton made something up about Donald Trump. She said that Trump has an ISIS recruiting video. And her team will not just say, you know what?  That is wrong, she apologizes, she should be more careful.

(CROSSTALK)

LOWRY: This is why 60 percent of Americans don't trust Hillary Clinton.

SMITH: All right. So, I want to move on because we have got Ted Cruz surging in the polls. Do you think that's going to stick by the way, Rich?   

LOWRY: I think hands down, Ted Cruz has ran the best campaign among Republicans. He is surging, he is strong across all sectors of the party.  So, this is really serious. And look, it's not the national polls that matter most, it's state by state. When you look at Iowa, he has got a big lead in Iowa.  

SMITH: But Alan says, this is just the Trump effect.  

COLMES: -- would love to run against Cruz or Trump. Cruz is a Trump effect. He's despised by the Republican establishment, but he's antiestablishment, but he has some political experience. So, people who may not feel comfortable, who said 50 percent embarrassed by Trump, may accept Cruz, but another year I don't think a guy like Cruz could ever pop like this.

LOWRY: But yet, in a head-to-head matchup, he's tied with Hillary Clinton.

SMITH: While Cruz is surging and Trump maintains his lead, Jeb Bush has fallen further in the polls, and now says he's considering breaking his GOP loyalty pledge if Trump is the nominee.  

LOWRY: It's really sad that we have to take loyalty pledges in the first place. If anybody is going to break their loyalty pledge, Trump might do so, because he'll claim at some point the party is not treating him well.  The fact that the party has to even ask for a loyalty pledge in the United States of America, it sounds fascistic. And good for Jeb for saying, I'm not necessarily going to go in that direction because he's not a Republican, he's a Trumpian.

SMITH: Chris Christie, by the way, overtaking Jeb Bush in recent polling.  

COLMES: Christie is showing signs of life. And look, there's obviously Republican voters, they want more than anything else from these candidates, they want strength. So, you've had Trump demonstrate that in a big way, Cruz, and Chris Christie as well.  

SMITH: All right. Well, I would say it's getting exciting, but it's been exciting.

Guys, thanks for joining us tonight.  

LOWRY: Thank you.

COLMES: Thanks a lot.

SMITH: All right. Well, President Obama making waves tonight following comments about folks who are critical of him. We asked Joe Trippi and Kevin Jackson of the President's race. Really few disapproval of him.  

Plus, a beauty queen suspended for what she said to filmmaker Michael Moore about Muslims, and when one of our guests dared to make a joke about "Star Wars"? She was hit with downright outrageous and abusive comments, even death threats.

Now, after a record-setting weekend for the franchise, she's here to respond to all her critics.  

(BEGIN VIDEO CLIP)

KATHERINE TIMPF, NATIONAL REVIEW REPORTER: All I said was that, I wasn't familiar with "Star Wars", because I've been too busy liking cool things and being attractive.  

UNIDENTIFIED MALE: Ahah! Yes.  

TIMPF: People threatened my life.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SMITH: Developing tonight, new controversy over President Obama's lengthy sit-down interview with NPR News after the President appears to suggest that racism, at least partly fuels criticism of him. Take a look.

(BEGIN VIDEO CLIP)

OBAMA: Are there certain circumstances around being the first African- American president that might not have confronted a previous president?  Absolutely. I think if you're talking about the specific virulence of some of the opposition directed towards me, then, you know, that may be explained by the particulars of who I am.

(END VIDEO CLIP)

SMITH: This isn't the first time that President Obama suggested at least some criticism of him has more to do with the color of his skin than the content of his politics. And that is a notion the National Review Kevin Williamson took serious issue with today writing in part -- "The president says that much of the unhappiness with his administration is pretty specific to me and who I am and my background. He's really saying it's about his critics and their bigotry and prejudice. President Obama thinks the reason he is perceived at not being specifically good at his job is that we yokels aren't smart enough to understand how spectacularly spectacular he is."

Joe Trippi is the former presidential campaign manager for Howard Dean and the FOX News contributor. Kevin Jackson is executive director of The Black Sphere, a conservative radio host. And author of Race Pimping. Kevin, I'll start with you first. So, has racism at least partly fueled the growing criticism that we've seen of this president?

KEVIN JACKSON, EXECUTIVE DIRECTOR, THEBLACKSPHERE.NET: The short answer is no, it's a joke. And it's a convenient place for Barack Obama to hide. I would just ask people to ask a very simple question -- was Jessie Owens, was he the product of racism when he went to the Olympics and showed up Hitler? Was -- when Joe Lewis knocked out Max Schmeling -- that Max Schmeling and Hitler not like black people? Who cares? At the end of the day, they did their job and they did it great. There's a funny saying in the black community that Barack Obama had broken the color barrier in baseball, there would still be a Negro league.

He's always looking to hide behind race, when in fact, he had an amazing and a glorious opportunity to transcend the racial issues, whatever he believes exist in America, and just do a spectacular job, but he doesn't do a spectacular job. So, the only place for him to do to go is to hide behind race. Every president confronts a hostile opposition. It's like saying to the person who's going to play in the championship of a basketball game, hey, the other team is just going to sit down and let you make lay-ups. This is just a convenient thing for Barack Obama to hide behind.

SMITH: All right. Joe, I mean, he isn't quick to point out some of his policy failures for reasons for this growing criticism.  

JOE TRIPPI, FORMER DEAN PRESIDENTIAL CAMPAIGN MANAGER: Well, he said some of his detractors are driven by racism, and, look, the country elected and reelected him. And I think that speaks to how far the country has come, but to deny that there isn't any racism in this country and that there aren't some who resent a fact --

JACKSON: Who said that?

TRIPPI: That a black man is president of the United States, who by the way, wait, had to argue about whether he was even born here by some of those people.  

SMITH: Kevin, were you denying that there was any racism in this country?

JACKSON: No, first of all, I wasn't denying about racism, but secondarily, what does any of that have to do with the policies of Barack Obama? If you can point to something that say, Barack Obama he didn't get this accomplished because he was black, then I'll concede it but you can't point to that.  

SMITH: OK. Joe, he is clearly making the point.  

TRIPPI: Did you invite me on the show to talk or you want me or you want me just sit here to get yelled at?

SMITH: Go ahead.

JACKSON: Well, then talk!

SMITH: I'm just making sure that his words were heard right. Go ahead.  

TRIPPI: The point here is that there are plenty of detractors who have, you know, strong policy differences with the President that don't believe he's doing the right thing or the correct policies on a number of things, but to deny there are some people out there who are his detractors that are vocal, that there's nothing he could do that would be right by them because of his race?

JACKSON: Great point.  

TRIPPI: That is what's going on.  

JACKSON: Great point.  

SMITH: Go ahead, Kevin.

JACKSON: Yes. Let me tell you, that's a great point. So, let me tell who the detractors to George Bush, the Congressional Black Caucus. Many Black people were against any White Republican president, but you know what they do? They just do their job. They represent all Americans and they do what's best for America. See, what you do, is you want a convenient excuse -- now you don't want me talk -- you want a convenient excuse to say, oh, this is the reason why he couldn't get something done. You can't point to a single piece of legislation that Barack Obama wanted to pass that had any -- where race was the issue why it didn't past, but you can certainly point to where people had legitimate reasons for not backing his policies.  

TRIPPI: He didn't say that. He didn't say that at all. He said some of his detractors were driven by race. That's all he said.  

JACKSON: So did Bush. So did Bush.  

SMITH: So, Joe, let me ask you a question.

JACKSON: So, Bush could say that too.

TRIPPI: You're right.  

SMITH: Do you think you're saying that you have to assume that there is some racism in the criticism of the President, but do you think that the President is putting more weight in race being a factor in his critics?

TRIPPI: No, not at all. He was asked about that, like three or four different ways, he finally -- finally said, you know, my demographic. My unique demographic. He was not trying to get there at all.  

SMITH: All right. So, Kevin points out the fact that America elected him two times with a large percentage of the White vote proves something.  Kevin, go ahead.

TRIPPI: I said that.

JACKSON: Well, look, at the end of the day this was -- he did say that.  This was Nirvana for the Left. Because there was no way to criticize Barack Obama without them running to the race card. America has been far - - it's exponentially far less racist, it is the most amazing country, it's a mosaic that has every culture, religion, creed, et cetera. And for Barack Obama, instead of just saying, you know what?  I'm going to be the Jackie Robinson of baseball. If I have to take the jibes, I'll take them.  Because what I'm going to do is I'm going to represent being the first.  There's a thing in the black community about being the first. There's a thing in the black community about being the first. Whether there was Jack Johnson, the first heavyweight black champion, Wyomia Tyus, Arthur Ashe and many others. There was a thing about excellence.

SMITH: All right.

JACKSON: And doing the best job. Barack Obama has no -- come what nowhere close to being excellent.

SMITH: All right. Joe, last word with you, we've got to go.

TRIPPI: Yeah, I think a lot of people in the African community think he has been excellent, and a lot of democrats do too. There'll be a lot of people on the right who don't think that.

JACKSON: Well they're delusional.

TRIPPI: We'll let history decide -- yeah, we'll let history decide that.

SMITH: All right. We'll leave it there.

JACKSON: Sure, let's do that.

SMITH: Joe, Kevin, thank you.

Breaking tonight, judge rules to keep certain Black Lives Matter activists from attending a protest at America's biggest mall, but we'll tell you why it may not be enough to stop a repeat from last year. Plus, the latest First Amendment ruling by a federal appeals court may help the Washington Redskins keep their controversial name.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

CROWD: While you're on shopping spree, black people cannot breathe!

(END VIDEO CLIP)

SMITH: Well, that was the scene at the Mall of America, this time last year when the Black Lives Matter movement held a massive protest, resulting in 125 arrests and hundreds of protesters disrupting holiday shoppers. With just three days ago, until this year's Christmas, officials at the mall asked a judge to block a protest scheduled for tomorrow to avoid a repeat of the chaos. The judge's ruling came in just a short time ago and it bars just three Black Lives Matter organizers mentioned in the mall's lawsuit, but does not stop others from attending the protest. Joining me now, a criminal defense attorney and a former prosecutor Mark Eiglarsh, and trial attorney Deborah Blum, all right, Deborah, start with you first. What do you make of this ruling? Because it appears based on the ruling the protesters will be able to show up anyway.

DEBORAH BLUM, TRIAL ATTORNEY: Well, let's talk about why there's a call to organize for Black Lives Matter. Did you know that one in three African- American males should expect to wind up in prison during their lifetime? Are you aware that over 60 percent of the prison populations are African- Americans and Hispanic?

SMITH: OK, but Deborah, let's stick to the point. That the mall is saying this is private property.

MARK EIGLARSH, FORMER PROSECUTOR: The law.

SMITH: All right, mark, to you.

BLUM: Well, it --

SMITH: Will you answer the question, what do you make of the ruling? The mall says this is private property, this affected their sales last year, do you agree with it?

EIGLARSH: Well, of course. And if -- forget about what I think, let's go back to 1999 when the Minnesota Supreme Court made it very clear in the Wucklund case that malls are private property. And they've used that good law, ever since to control who has access to their premises and they can keep who they want out.

(CROSSTALK)

SMITH: The people couldn't even shop. The stores couldn't make sales when they took over the mall.

BLUM: You know we should focus on what the issue here is, in other countries such as in Israel, when there's a national public holiday people stop and appreciate the holiday. Christmas is supposed to be about more than just gifts, so we should focus on the issue here, which is that close to 70 percent of African-Americans and Hispanics.

EIGLARSH: Deborah.

BLUM: Are incarcerated, and yes.

EIGLARSH: Deborah, you know what the issue is?

BLUM: There's also the argument that this is semi-public property.

EIGLARSH: Deborah.

BLUM: Because they receive public funding.

EIGLARSH: Yeah.

SMITH: All right, Mark, go ahead.

EIGLARSH: Great arguments, great arguments. All rejected across the board by the Supreme Court when they made their decision. And the issue around the holidays is the safety and experience of the patrons in the mall, and the mall has the right to control and protect the people who come into their private mall.

(CROSSTALK)

BLUM: Which the judge allows them to do. She just said, "I can't keep every person out." You didn't name.

SMITH: All right.

BLUM: Thousands of people that are part of Black Lives Matter.

EIGLARSH: They'll be kept out.

BLUM: All right.

EIGLARSH: They'll be kept out when they show up.

SMITH: Let's move to the next story, because we have another ruling coming down today. We've all been following the Redskins, the patent story. A federal appeals court today ruled that the provision used to strike down the Washington Redskins trademark is unconstitutional. Mark, do you agree with this one?

EIGLARSH: Well, of course. The First Amendment gives wide latitude for offensive and even outrageous speech. And the government shall not deny trademarks from being issued, merely because they think that people may be offended by the speech. It is protected. It's un-American to deny people the right to free speech, even if it's outrageous.

SMITH: Deborah, where do you fall on this one? The court found that the restriction is an impermissible government influence of freedom of speech.

BLUM: Well, they made it carve out to First Amendment protection, or they said that there isn't such protection in this case. I thought here we also need to focus on the question. This is a community who's very offended by the name Washington Redskins, as they should be.

(CROSSTALK)

SMITH: Which community are you referring to?

BLUM: The native American-Indians and they are very upset that such a derogatory term is being used for a football team and many other teams, for that instance. What if there was the Berlin Jews? What if Germany came out with a football being called the Berlin.

(CROSSTALK)

BLUM: Jews.

EIGLARSH: Apologize that.

BLUM: Well, you know.

(CROSSTALK)

SMITH: Go ahead, Mark.

EIGLARSH: As a -- I will tell you this.

BLUM: Basically, you.

EIGLARSH: I'm going to answer your question. If they did, I would represent them pro bono in spite of the fact that I'm Jewish, because as long as we protect their rights, then my rights will be around when I want to speak in this country.

BLUM: Well, it's the same thing here. People would be very offended, and then people are very offended here.

SMITH: All right.

BLUM: So there's has to be (inaudible).

EIGLARSH: That's America, Deborah.

BLUM: It is America and I celebrate being American, but we have to have some limitations.

SMITH: All right, spirited discussion so much, so that we're going to keep you around. Our legal panel will stick around to weigh in on the most ridiculous lawsuits of 2015, one including a child who sued over a hug.

Plus, from the Miss America stage to Miss suspended, the beauty queen that found herself in a world of trouble after she launched into Michael Moore and Muslim.

(COMMERCIAL BREAK)

SMITH: Well, 2015 was a busy year for lawyers with bizarre head-scratching cases that left us all thinking, why just happened? Like the lawsuit involving this woman, Jennifer Connell, who sued her 12-year-old nephew for $127,000 for breaking her wrist at his birthday party, four years ago, with a hug. We're back with criminal defense attorney Mark Eiglarsh and trial attorney Deborah Blum. All right, Deborah, I got to get your take on this. He gives her a hug, she falls, she breaks her wrist, and she's suing her nephew, $127,000.

BLUM: This case is absolutely ridiculous. Her nephew jumped into her arms, which caused her to fall and break, whatever she broke, but why is she suing her nephew? It's because he inherited money from his deceased mother.

SMITH: Ah, there's money behind every story, right, Mark? Would you -- is this a good case?

EIGLARSH: It's ridiculous. Listen #worstauntever. But I will tell you that she did then come to one of the media outlets and say that she needed - she was injured, obviously, and wanted to sue her homeowners association, but had to -- or homeowners insurance, and had to name him as a party and felt bad about it.

SMITH: By the way, she fell because he was so excited to see her.

EIGLARSH: Right.

SMITH: He jumps off in her arms.

EIGLARSH: Right.

BLUM: Auntie Jen, I love you, I love you.

(LAUGHTER)

SMITH: I know it well --

EIGLARSH: Yeah.

SMITH: It's just heartbreaking. And then there's this story, the armed bank robber, remember this one?

EIGLARSH: Oh.

SMITH: He's suing over injuries that he occurred while he was fleeing the scene of a bank robbery. He said, "I was obviously unarmed and severely shot up. He claims the medical bills that he got from gunshot wounds amounted to more than $300,000. And the officers failed to stop the other officers from trying to execute me."

EIGLARSH: Good lawsuit.

SMITH: He's doing.

EIGLARSH: No, good -- this is a good one. Sandra, in his defense, this is a good one. I think police should stop using bullets. They should tickle armed robbers into submission and then we wouldn't have these incidents like this -- the good one.

SMITH: All right, Deborah, do you have any sympathy?

BLUM: I can't say that I have any sympathy. This guy is a bad armed robber and he's a bad litigant.

SMITH: OK. But doesn't he have a case?

EIGLARSH: And clogging up the system.

SMITH: Does he have a case, Mark?

EIGLARSH: Hell no. Hell no, frivolous, get out of town. And you know what.

SMITH: All right.

EIGLARSH: If they beat him up in the jail, I'm not in favor of it, but I'm not going to protest in his behalf.

SMITH: All right.

EIGLARSH: I just stick to it.

SMITH: Let's move on to the monkey, the macaque monkey. This animal rights group, PETA is now suing on behalf of this monkey for ownership of selfies. A selfie like the one that you're seeing right now, this is a British nature photographer David Slater, he took the pictures, it's an endangered species in Indonesia, he left his camera tripod there to get the pictures. Anyway, there's a major copyright court battle. PETA is suing on behalf of Naruto, the monkey -- Mark.

EIGLARSH: Please, really? No. Monkey gets no rights. PETA, you're diluting your -- already diluted brand in picking a battle on this case. Focus on people who really abuse animals and leave this alone.

SMITH Deborah, is the macaque monkey have any rights here?

BLUM: I can't say that the monkey does, although it's adorable. I hope that the photographer gives some of the benefits and proceeds from the sales to the monkey, but PETA is definitely barking up the wrong tree here.

SMITH: Mark, what does it say about all the lawyers taking on these cases?

EIGLARSH: Yeah, there's a problem. I'm not defending it.

SMITH: OK.

EIGLARSH: I won't take that battle.

SMITH: All right. Thank you both for joining us

EIGLARSH: Happy holidays to you.

SMITH: You too.

EIGLARSH: Nice to see you.

SMITH: To both of you.

BLUM: Happy holidays.

SMITH: Thank you.

Well, beauty queen blunder, a Miss America contestant finds herself in a whole lot of hot water after sending out a series of tweets about Muslims.

Plus, our guest dares to make a joke about the blockbuster franchise Star Wars, and a hit with a barrage of abuse. Now, she's here to respond to her critics.

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SMITH: She once graced the stage at Miss America, but today, Miss Puerto Rico, Destiny Velez is finding herself at the center of a controversy, suspended indefinitely over a series of tweets that she sent. It all started when filmmaker Michael Moore posted images of himself outside Trump tower with a sign reading, "We are all Muslim", telling the GOP frontrunner that if he wants to ban some Muslims, he'd have to ban everyone. Miss Puerto Rico did not agree with this. And according to published reports, repeatedly tweeted messages at Moore like "hold a sign that says "we are all believers in Christ." Why are you defending Muslims that haven't done nothing for the USA and all what Muslims have done is provided oil and terrorize this country and many others!!!" Multiple exclamation marks. She has since deactivated that Twitter account.

Kat Timpf is a National Review reporter and Fox News contributor. So she's banned. What do you make of this Kat?

KATHERINE TIMPF, NATIONAL REVIEW REPORTER: Well, what she tweeted was, obviously, inappropriate. It was in bad taste. But it's really unfortunate because now it's being branded as she's so terrible. We're not focusing on how, what Michael Moore did was also just so ridiculous. The thing about we are all Muslims is that we're not. Plenty of people are not Muslims. I'm not a Muslim. I respect Muslims. I have Muslim friends, but the thing is you don't have to agree with Donald Trump and then -- or agree with Michael Moore. It's not one or the other. He's being ridiculous. He's trying to act like he's some cool little hippie bro. And he's not, he's not a nice guy, he's horrible.

SMITH: All right. So, let me just inject this. She did release a statement. She's apologizing saying, quote, "I apologize to the people I've offended with my words. I am first and foremost a #upstander, she used on Twitter, and as such I stand up against bullying." She is putting this out there as bullying and she has apologized. Do you think that she, she should be allowed back into the Miss Universe pageant?

TIMPF: It's up to the pageant. It's up to what this organization that she's representing wants to do. At the same time, at least she apologized when Michael Moore, he posted something saying, "Hey, don't be mean to her." But then he said she might be a better representative of Mississippi or Alabama. She's willing to throw a little jab into the south there, which is not a very kumbaya thing to do. Despite the brand she's trying to push here. So the apology is nice. It's up to that organization, but you really got to be careful what you tweet and what you say if you don't want people to come after you. It could be a big thing.

SMITH: No one knows that better than you Kat Timpf, because right now --

TIMPF: Right, that's true.

SMITH: You are coming under fire for comments that you made about Star Wars and, you're actually receiving death threats?

TIMPF: Yes, I received a lot of death threats. Even some people saying I'm coming at 8:00 a.m. to kill you, which is always nice to know what time something is, but I don't want to die so...

SMITH: What is that they're so upset about Kat, that you didn't -- that you made remarks about Star Wars that were not in line with their thoughts and beliefs?

TIMPF: I am insinuated at 3:00 in the morning that Star Wars fans were nerds, which is a joke topic that I'm sure happens a lot. And if you're an adult and you're sleeping in a parking lot for a movie on purpose, I'm going to make fun of you. And I'm not going to be sorry for making fun of you because that's funny to me.

SMITH: So it's turn out to be a smash hit. You're looking at images of the movie there, a record breaking numbers. People went out to see it. Do you regret such comments Kat Timpf?

TIMPF: I don't because I still don't like it. And I've had a lot of people tell me privately, of course, because this is apparently a very serious matter, that they don't like it either. I don't like space movies, I don't like romantic comedies and I'm not going to ever see either kind of those kinds of movies.

SMITH: You don't mess.

TIMPF: I'll make fun of people who like them.

SMITH: With the Star Wars fan, Kat.

(LAUGHTER)

TIMPF: I guess not. I guess not. It's very -- it's a religion, I guess, yeah. But I'm not trying -- you know what? You have to be able to make jokes even if it is about something as serious as Star Wars.

SMITH: Oh, well, you always speak your mind and that's why we have you on tonight, thank you, Kat.

TIMPF: Thank you.

SMITH: All right, we'll be right back. But first, remember to tune in to Fox News West Point holiday special hosted by Gretchen Carlson. It will be airing on Christmas Eve at 7:00 p.m. and 9:00 p.m. Eastern Time.

(BEGIN VIDEO CLIP)

WEST POINT, BAND: Giddy up, giddy up, giddy up -- yeah. Giddy up, giddy up, giddy up -- just hear those sleigh bells jingling ring ting tingling too. Come on its lovely weather for a sleigh ride together with you. Outside the snow is falling and friends are calling yoo-hoo. Come on its lovely weather for a sleigh ride together with you, you, oh. Giddy up, giddy up, giddy up, giddy up, giddy up, giddy up -- our cheeks are nice and rosy and comfy cozy are we. We're snuggled up together like birds of a feather should be.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SMITH: So what did you think about the most absurd lawsuit of 2015? Go to facebook.com/thekellyfile and tell us what you think, there are certainly some entertaining ones there, don't you think? And be sure to tune in tomorrow night or set your DVR. Dana Perino, Frank Luntz and Pete Hegseth are all here. Thanks for watching. I'm Sandra Smith in for Megyn Kelly and this is "The Kelly File."

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