SHOW: THE O'REILLY FACTOR (20:20)

August 11, 2003 Monday

Transcript # 081103cb.256

SECTION: News; Domestic

LENGTH: 1267 words

HEADLINE: Impact

GUESTS: J.D. Obenberger

BYLINE: Bill O'Reilly

BODY:
O'REILLY: In the "Impact" segment tonight, Attorney General John Ashcroft has charged a California man and woman with trafficking in obscene materials across state lines. A grand jury in western Pennsylvania has indicted Rob Zacari and Janet Romano for sending unbelievably violent tapes into their area from California.

If convicted, the two could be sentenced to 50 years in prison and be fined millions. And we hope they are convicted.

One of the tapes involved is called "Forced Entry" and features the rapes, you know, movie rapes but very realistic and murders of a teenager and a pregnant woman.

Joining us now from Chicago is attorney J.D. Obenberger, a First Amendment lawyer, who's worked for the entertainment industry.

Today on "The Radio Factor," counselor, I talked to a First Amendment lawyer, like yourself, who does adult film work. And he said that there isn't anything, any speech that he feels is unconstitutional. That includes harassment speech, hate speech, right down the line. An American has the freedom to say and express anything. Do you feel that way as well?

J.D. OBENBERGER, FIRST AMENDMENT ATTY.: Very close to that. The First Amendment begins with the expression "Congress shall make no law." And I believe that no law should in general mean no law.

O'REILLY: OK, so even if the speech hurts somebody, and you can prove that it does, you say that's OK because the Constitution in your opinion says that unabridged speech has to stand? You can hurt people. You can harass them. There's no such thing as bias crimes or hate crimes or verbal harassment or threats or any of that. You can do everything you want?

OBENBERGER: No, that's really not the way I feel. You've just jumped from a criminal law that can put someone in jail, to saying there shouldn't be a civil remedy for abuse.

O'REILLY: No, I'm talking about criminal things. So you'd say OK, civil, you can sue them, but criminally, you can't be arrested for doing it.

OBENBERGER: What I'm telling you is if you use your liberty of free speech and you defame someone, you willfully, maliciously utter falsehoods about them that hurts them...

O'REILLY: Yes.

OBENBERGER: ...there certainly should be a right to recover the damages.

O'REILLY: All right, but that's civil.

OBENBERGER: Right.

O'REILLY: Again, so you don't want any criminal penalties? Now, this...

OBENBERGER: I really don't think there should be.

O'REILLY: ...outfit in Extreme Associates in California sends out really violent stuff. I mean, really violent. Even salon.com, a very left wing Web site, the woman who reviewed it says "watching it, I was aware it was just a movie, but I felt like I was watching a rape. And I mean, it was rape of a pregnant woman, a teenager, brutal in every way.

Now the Supreme Court has ruled that local areas have a right to define what is obscene, OK? That's a ruling. I'm sure you know about that. That's...

OBENBERGER: It's really not so clear with respect to the Internet. Six of the justices in the Supreme Court in Ashcroft versus the ACLU suggest that the old standard, community standards based on local geographic standards probably does not apply to the Internet. And...

O'REILLY: But why wouldn't it apply to the Internet, though? I mean, what's the difference between sending something in the mail and sending it e-mail? I mean, there's really no difference. You're sending it to someone else. And if the community says we don't want that here, why couldn't you be charged under this law?

And the other litmus test is...

OBENBERGER: Yes.

O'REILLY: ...you have to show social redeeming value. All right, that's a way you can get -- see look, two people are having sex, so what? I mean, nobody's going to charge you criminally with that. But here, when you're reveling in the lowest form of depravity, there is no social redeeming value in this.

OBENBERGER: Well, the first thing you have to recognize is there's only 12 people in the United States of America who are going to have to watch this content that you've described as disgusting. And those 12 people who are going to be forced to watch it are the jurors in the Eastern district...

O'REILLY: Yes, we...

OBENBERGER: ...or the western district of Pennsylvania. But no one else has to watch it. No one else has to watch it.

O'REILLY: Now you're going to give me the consensual thing. And I'm going to tell you this.

OBENBERGER: Yes.

O'REILLY: It may be consensual sending the videotape to person number one. But that doesn't mean that person number one is going to act responsibly. It's a joke, because person number one wouldn't be responsible in the first place of buying it. But that tape wouldn't go anywhere. Anybody can see the tape. All right? So you can't tell me it's just consensual and the privacy, blah, blah, blah. That didn't go anywhere.

OBENBERGER: Now, you know, I just don't understand this. The conservative position when I was growing up always used to be, get government off the backs of the people. What people...

O'REILLY: I'm not a conservative.

OBENBERGER: Well, I am.

O'REILLY : You know, my duty here is to protect the citizenry of this country. And it should be your duty as well. We should all be looking out for each other.

OBENBERGER: Bill...

O'REILLY: And I'm saying that this is...

OBENBERGER: Yes.

O'REILLY: ...extremely harmful to the general welfare, which is the mandate of the Constitution, protecting the general welfare.

OBENBERGER: You're going to have to explain that to me. How does it harm the general welfare when someone looks at a streaming video in the privacy of their home and on a computer monitor?

O'REILLY: Because that video can go anywhere. And also, if the person is a borderline psychotic, all right, they can act upon this kind of stuff. So...

OBENBERGER: So we're going to legislate from what I can see on the basis of what a borderline psychotic might have an effect on?

O'REILLY: You bet. I'm going to legislate -- well, it's not about you. I'm not arresting you.

OBENBERGER: It's about a free society.

O'REILLY: And the grand jury didn't indict you for ordering the tape in Pennsylvania. It's about the people who make it, because...

OBENBERGER: Bill, it's...

O'REILLY: ...there's no social redeeming qualities to make this. There's no social redeeming...

OBENBERGER: I think it's about the limits of a free society. Where does government have the power to end people's liberty to view movies they want to see?

O'REILLY: When it's harmful to the rest of the society.

OBENBERGER: How is it harmful when a person again looks at it? You're saying he may be psychotic, but we don't generally legislate speed limits on the highways on the chance that there might be a psychotic driving a car. Nor should we do so with respect to informational content.

O'REILLY: There is such a thing as obscenity, at least the Supreme Court says so. And this qualifies. Last word, 10 seconds.

OBENBERGER: I can only say the Statue of Liberty's light burns a little dimmer every time there's an obscenity prosecution.

O'REILLY: All right, well, we'll take that chance, counselor. We appreciate your coming on. Lively debate. Thank you.

Plenty more ahead as THE FACTOR moves along this evening. Arnold Schwarzenegger taking it from both sides. Some liberals don't like him and neither do some conservatives. We'll find out why.

And the God squad is split on Mel Gibson's upcoming "Jesus" movie. We will talk with them. And we hope you stay tuned for those reports as THE FACTOR continues from coast to coast and all around the world.