This is a rush transcript from "The O'Reilly Factor," May 5, 2008. This copy may not be in its final form and may be updated.
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BILL O'REILLY, HOST: In the "Is It Legal?" segment tonight, two big stories. The trial of singer R. Kelly begins this week. He's charged with child pornography. And in Florida, 30-year-old high school science teacher Tiffany Shepherd says she's been fired by the St. Lucie County School District for working on a boat, wearing a bikini. Is that legal? With us now, attorney and FOX News legal analyst Lis Wiehl and attorney and FOX News anchor Megyn Kelly.
All right. The woman has not filed anything. Threatening, but you know…
MEGYN KELLY, CO-HOST, "AMERICA'S NEWSROOM": Consulting with her attorney.
O'REILLY: I used to be a high school teacher, as a lot of people know, and I was conscious off campus of what I did because the kids are watching everything the teachers do. However, you go to any beach in Florida and you're going to see women — teachers, cops, whatever — in bikinis, all right?
So this woman goes on a charter, wears a bikini, you know, in a commercial way, gets paid for doing it. Has three kids, by the way. And did she do anything that would warrant a firing?
KELLY: I don't know without seeing her contract, because this particular woman apparently had a contract. But I would assume that there is a clause in there that allows her to be fired if she violates a so-called morals clause.
O'REILLY: But for wearing a bathing suit?
KELLY: Wearing a bathing suit one thing. Going out for the titillation of men on a charter fishing boat as a "bikini mate," is arguably another.
O'REILLY: In legal terms then, if you were to present an argument to a jury — say I was her lawyer, Ms. Shepherd's lawyer. I would say, look, people see this all the time on the beach, all right? And now you're saying that my client can't earn money for her three children, extra money by going on a charter and being in the same bathing suit she would wear on the public beach?
KELLY: Here's where my argument would come in. I would say not only was she out there posing like this to get the job. But not only was she out there in the bikini, but this organization and the owner of it is very open about it does more than that. Once they get some of these so-called bikini mates out on the ocean, they whip off the tops. That's what half these men are paying for.
O'REILLY: Pictures like that I could understand.
KELLY: But she's part of the organization. And your objection as the principal of the school is, "I don't want a teacher who's promoting that organization as part of my organization teaching little kids."
O'REILLY: Do you see it the same way?
LIS WIEHL, FOX NEWS LEGAL ANALYST: No, I don't. I mean, first of all, this is exhibit one for why we need to pay teachers more so she wouldn't have to moonlight.
O'REILLY: Well, she might moonlight anyway, Wiehl. Come on.
WIEHL: She's out there on a boat. She says she never went topless. She's not going with the charter group that's going topless. So far, you know, the kids haven't been impacted by this. We're talking about high school kids here. What she's doing is perfectly legal. If it's ever proved to be…
O'REILLY: Well, these pictures were on — don't say that — you have no idea whether the kids were impacted, because these pictures are on the Internet. So the kids are checking this out. Come on.
WIEHL: But as you say, they could be going down to the beach and seeing their teacher. What are you going to say next?
O'REILLY: "It's Ms. Shepherd, look at this." You don't think that's a distraction? Come on.
WIEHL: For you it may be.
O'REILLY: For any kid.
WIEHL: So next time you're going to say, what, you can't see a teacher in a bikini on the beach?
O'REILLY: If you're her attorney then, do you file a suit?
WIEHL: Absolutely. Unless there's another reason that she was fired. The school is saying...
O'REILLY: All right. We don't want to get into what he said-she said about it because we can't...
WIEHL: Exactly.
O'REILLY: If that's the reason you would file?
WIEHL: If that's the reason I would darn well file a suit. Yes. She has an absolute right to wear that bikini.
KELLY: Can I just point out for the record the school is paying out her contract. She has no lawsuit. It is paying her to retire.
WIEHL: They fired her.
KELLY: Right. But she has no right to have her contract renewed. She's getting paid for the extent of her contract term. They're choosing not to renew it, and they're paying it out.
WIEHL: She can't work in that school afterwards.
KELLY: Too bad.
O'REILLY: I would love to see you two sort it out in that courtroom, boy. Wouldn't you like to put money on that?
KELLY: She admitted she was absent all these times. I mean, come on.
O'REILLY: I'd love to see that trial.
R. Kelly, what did it take them, 14 years to get this to the courtroom?
KELLY: Yes, it's taken a ridiculously long time because of delays from the judge, delays from him.
O'REILLY: So this week he goes in, charged with having sex with a minor?
KELLY: No, charged with child pornography.
O'REILLY: Wait, hold it. Charged with having sex with a minor, photographing it and then for his own viewing purposes later. That's what happened.
KELLY: That's what happened. That's not what he's charged with.
O'REILLY: That's what the prosecution alleges happen.
KELLY: Yes.
O'REILLY: No. 1, why did it take so long?
KELLY: Because there were delays because of the judge and delays because of the lawyers. One of the lawyers is a big cat and had all these trials. And then the judge...
O'REILLY: Are you buying that?
KELLY: Somebody fell off a ladder. I mean, there's all these weird things. I think in part the prosecution needed to get its case ready and its many witnesses ready. And in part, actually, I'm not stunned because litigation takes a long time.
O'REILLY: All right. So this is going on five, six years.
WIEHL: Right.
O'REILLY: Do you think this guy is going to get convicted?
WIEHL: I think so because the victim here is not going to testify. The victim was actually in this tape. But there are going to be other women that are going to come forward and say, "Well, look I did a threesome with this girl and Kelly." There are four other women that have filed civil lawsuits. They're all going to come in. And if this evidence gets before a jury...
O'REILLY: So they need an eyewitness who...
WIEHL: Who was there.
O'REILLY: Who was there.
WIEHL: Right.
O'REILLY: And says this woman, Kelly, whatever her name is…
WIEHL: Girl.
O'REILLY: ...was 13. "This is what happened. I was there. I swear it happened." And then they have the videotape, don't they, Kelly?
KELLY: They've got the videotape.
O'REILLY: Which he says isn't him, right?
KELLY: He says it's not him, but they don't need to prove it was him, because they're alleging that he's the promoter of the videotape, that he was the distributor of the videotape.
O'REILLY: Did they find it in his possession?
KELLY: Yes. Apparently it was given to a Chicago newspaper anonymously and has been linked to R. Kelly. That's how it happened.
O'REILLY: But they have to prove it was in his possession?
KELLY: Yes, but really, that's not what they're worried about. They're more worried about proving the girl's age than they are about whether...
O'REILLY: Because this is a big guy. For those who don't know, this R. Kelly is big in the music world. So we'll follow the case. And I really want you guys both to go to Florida and fight out that.
WIEHL: Fight the bikini thing.
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