christopher stevens, and three other americans dead. there were no demonstrations. the news is raising new questions about the administration's version of events and claims this weekend on virtually all the sunday shows from our u.n. ambassador, susan rice, that those deaths were the result of a, quote, spontaneous protest that simply got out of hand. here's the ambassador over the weekend. >> the fbi is, has the lead in this investigation. the information, the best information and the best assessment we have today is that, in fact, this was not a preplanned, premeditated attack, that what happened initially was that it was a spontaneous reaction to what had just transpired in cairo as a consequence of the video. megyn: we are now awaiting a briefing from the state department on the anti-american protests rocking the middle east and the muslim world. you can bet this question will come up, but what will the state

department say? it is now refusing all questions about what happened in libya because it claims an fbi investigation is underway, and it says you have to refer your questions to the justice department, but they won't talk to you either. we are going to have what we can learn from that briefing and catherine herridge whose reporting this is with more of this exclusive just ahead right here. we are also getting new video, riots raging across the globe today, and as the anti-american protests spread beyond north africa and the middle east, it is posing a serious danger to americans around the world. busy afternoon already here at "america live." welcome, everybody, i'm megyn kelly. hundreds of angry protesters in afghanistan attacked a u.s. military base in the country's capital city this morning, and neighboring pakistan police were forced to scare away a mob with live gunfire, a mob that set its sights on the u.s. consulate there. eleven police officers were hurt

when protesters through rocks and molotov cocktails in indonesia marking the first violence in the world's most populist muslim country since protests began nearly a week ago. now the u.s. embassy in lebanon is on alert over the continued threat of violent actions against u.s. interests there. in just north africa and the middle east, protests have sprung up in some 23 different territories, and things do not appear to be getting better. greg talcott from tunisia's capital city where police have surrounded a group that may have ties to the people responsible for the death of christopher steeives. greg? >> reporter: hey, megyn. the word we're getting on the ground is that this individual, one of many islamist militants making trouble throughout the world, has gotten away. but again, as you noted, there is trouble around the world. in lebanon the leader of a muslim militant group there in

lebanon calling on the crowds to protest, to protest and to go against the united states using this anti-muslim film as an excuse. his words: as long as blood is in the u.s., we will not remain silent. this pakistan, as you noted, trouble. this is what was feared, a lot of trouble. karachi, second day in a row of protests, and in a tough border city near afghanistan also the seven of protests -- scene of protests. back here in tunisia, the embassy here is on a skeleton staff after friday's protest which saw folks ransacking through the embassy compound. also targeted the nearby american school. over 600 kids of international parents usually attend there, including some 100 american children. but administrators saw what was happening in the embassy, they sent the kids home. a short while later the school was ransacked by islamist

protesters. here is what the director told me about the government response. take a listen. >> i was surprised that the protesters weren't stopped. i think the new government's trying to find the balance between what they allow and what they don't. >> they let it go too far. >> they did, they definitely did. >> reporter: he told me, megyn, that he is hopeful now that the authorities will be responsive because he and the other americans and others on the staff there at the school, those kids are safe today. dangerous world. back to you. megyn: greg talcott, indeed it is. well, the u.s. military appears to be the target in afghanistan as the violence spreads there. hundreds of afghans torching cars and throwing rocks at a u.s. base near kabul, more than 20 police officers were injured. officers had to shoot into the air to hold back the crowd pushing toward government buildings. a similar scene over the weekend when hundreds marched through

the streets of kabul chanting anti-american slogans and burning pictures of the american flag along with the poster of president obama. one man promising more violence to come. >> translator: the infidels should correct themselves, otherwise we will continue to protest, and we are ready to sacrifice ourselves in the islamic way. megyn: here now lieutenant colonel oliver north, fox news military analyst and host of "war stories." colonel north, here we go again. afghanistan obviously no stranger to attacks on our troops, but there are several reports linking some of the violence we saw over the weekends to these protests and this anti-american sentiment we're seeing explode right now over the middle east. your thoughts. >> well, this is reaping the harvest of the obama team failures over the course of the last three-and-a-half years. they perceive weakness. we have, basically, precipitated a global jihad with a naive carterresque disengagement policy. this is jimmy carter on

steroids. i remember well what happened in 1979. he was shocked and surprised, those were his words, about the sacking of the u.s. embassy in kabul, of all places, and the murder of a u.s. ambassador. what we now see is a vacuum created by the united states' withdrawal from this part of the world, the promise of disengagement, and it's being filled by radical islamists. and that's not going to get better no matter how many former potentates he bows to or apologizes. the fact is u.s. military, diplomats and businesses all over that part of the world are now vulnerable, and it's not because of the green revolution. it's because the united states of america has been backing away from allies, we've ignored the syrian debacle, we're paying a price for the apologies that do not beget respect. megyn: how do we pin it on this administration's policies though, colonel north? because it seems like these radical extremists overseas

hated us under president bush, they hated us under president clinton, they still hate us. >> no, there's no doubt. and what we've done is we've essentially deceived the american people, i say we, the government of the united states with the willing assistance of the mainstream media, that this is somehow al-qaeda and all we had to do was to kill the head of al-qaeda, bin laden, and it would all go away. well, guess what? it didn't. it's only going to get worse, and once the administration's movie comes out after the election, it's going to get worse again. they're stunned at the white house that the bin laden demise did not end the jihad against us, stunned. setting a deadline that we're going to get out of afghanistan and out of iraq only entices them and encourages more of this. and can so you see the suicide attacks, the so-called blue on green attacks, the attack on one of the biggest bases in the country at leatherneck bastion, all of this something that budget is a consequence of a video, all of this to include

benghazi was preplanned. it's not spontaneous. megyn: so you're saying they are feeling more emboldened now, that they don't believe that the american superpower will strike back in the way we once would have? >> exactly. and, of course, our ability to do so isdiminished every time we pull more troops occupant of a place like afghanistan t. out of a place like afghanistan. the sad fact of it is that the mission of the u.s. u.s. marinen this case with the fast units being sent out are to protect diplomatic missions from this kind of assault. well, there's not quite enough marines to go around if that's what we're going to continue to do, cutting the budget. so places like sudan which turned down the introduction of a marine security guard detachment and the enhanced fast unit that was supposed to go out there, what we really ought to be doing is telling sudan no marines, no aid. and this administration isn't about to do that kind of thing because they can't even acknowledge that they failed, they failed in the basic

requirements of preparing for the kind of demonstrations that we should have expected on 9/11's anniversary. megyn: we're going to talk about this with a political panel at 1:30, but i want to get your take on it as a military analyst. you know, the administration was everywhere, we played that bite from ambassador rice this weekend saying this was about a video, and that's what this is about, and it's not about policy or this administration. you know, this is, obviously, very concerning because, yes, it's a political year, and both sides will likely use this to their advantage, the obama administration may say what they're going to say, the romney camp's saying it's about president obama's policies. but what is your take as a military analyst? the american people, i think, really want to know why this is happening. >> well, i think one of the reasons it's happening is because of the commitment to a deadline. that word takes on a whole new meaning in this case because you do have people dying. the deadline to withdraw from iraq, the deadline to withdraw from afghanistan is encouraging

any jihadi that your time is running out if you're going to martyr yourself killing an infidel. so the blue on green attacks are going to continue right up until we pull out, and you're going to see in this kind of thing happening around the world because they know america is not going to respond. and the bottom line of it is you can see it at the pump. i paid $4 a gallon for gasoline, and i was told i got a good deal because they're paying $5 a gallon here in washington. megyn: that's right. we're at 4.77 where i live. it's gone up, i think, 18 cents in the past couple of months. ollie north. colonel, thank you so much. >> we'll be with you. megyn: we're trying to learn more about that breaking news at the top of the hour involving new questions now over the administration's claim that the attack on a u.s. consulate in libya that took the life of four americans was spontaneous and linked to this video. >> this was not a preplanned, premeditated attack. >> i think we have no, this leaves us with no doubt that

this was preplanned, predetermined. megyn: very different messages coming from our u.n. ambassador and from the head of the libyan government who you saw right there. intel sources are now telling fox news just today within an hour before this broadcast that there was no protest happening at our libyan consulate prior to that attack. so how was this assassination part of this spontaneous demonstration if there was no spontaneous demonstration going on? what really happened in libya that day? and why is the administration so dead set on telling us that it was part of protests about a video? we're going to continue digging on that question this afternoon. and with american diplomatic missions under attack overseas, the white house is now having to detail how it would implement more than $50 billion worth of defense cuts. i mean, it's over $100 billion total that they need to cut from

our budget, including half from our defense budget. all this set to take effect in a little more than 12 weeks. they've offered their proposal, they themselves call it irresponsible, but they say they have to do it. lou dobbs walks us through the fallout right after the break. and windy city teachers say they may be close to a deal to end their historic teachers' strike. just ahead, why they say they need more time, and why the city says the union is just stalling.

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megyn: fox news alert on new video coming in from pakistan this hour. howns of protesters demonstrated outside of the u.s. consulate in the pakistani city of lehore. look at this video. beaten back by police as they tried to scale the metal barrier to reach the consulate building. just one of several violent protests across the greater

mideast and beyond today. in the middle of all of in the, as we see and talked about moments ago our troops coming under additional fire in afghanistan, the white house issued its plan on friday for more than $100 billion in automatic budget cuts, the white house and the republicans in congress agreed to these. the plan includes sharp cuts to the military with america facing growing rage and violence across the muslim world, and the attacks spreading like wildfire. some $55 billion will now be slashed from the defense budget in cuts that the obama administration admits will be, quote, destructive and will put our national security at risk. nice. this is the situation this which our lawmakers have put us. joining me now, lou dobbs, who's host of lou dobbs tonight on the fox business network and a syndicated radio host. you tell me, president obama and the lawmakers in congress, bipartisan lawmakers, put out these cuts that they themselves call destructive and irresponsible.

>> right. megyn: and already we have defense contractors who have to lay off people and who are not hiring because they can't say, oh, november will come, and we'll get new lawmakers, and then they'll feel emboldened to save us from these enormous cuts to our defense which our defense secretary says are going to be catastrophic. they say we can't wait for that, we have to start acting now, and this is the position -- i mean, we elected these people, this is what they do to us. >> are well, you get the kind of government that you deserve on occasion, and right now we have lawmakers and a white house that have agreed to sequestration. automatic across the board budget cuts because they didn't have the intelligence, the energy or imagination or sense of responsibility to cut the budget on their own making independent, discreet judgments. now, what is really breathtaking is the white house announcing that these cuts are destructive. sequestration was the idea, the proposal that originated in the white house, and you have the

white house holding forth on this is destructive -- megyn: they've come out and said this is not responsible policy. [laughter] >> well, they're right about that, and they're also right about the additional aspect of this which is the other side of the so-called fiscal cliff which is another round of tax increases that will come about on january 2nd because this president and this congress haven't had the guts to deal with the issue. megyn: and just to reset for our viewers, so the president wanted to raise the debt limit on our country, on our credit card two summers ago. not this past summer, but the one before. and in exchange the republicans said, okay, but you have to agree to $1.2 trillion in cuts to the deficit over ten years. they couldn't agree on how, whatever, so finally they said, all right, let's make these draconian cuts to the defense budget, and then we'll appoint a supercommittee, and the supercommittee will work out something more reasonable.

well, guess what happened with the supercommittee? they failed, and now these cuts are about to happen -- >> they are about to happen, and the -- megyn: unless they find some alternative between now and december 31st. >> at the same time that as you showed so terrifically there we are, we're looking at a wildfire of new challenges to our national security. this is not only irresponsible, but it is a continuation of what has been absolutely mindless foreign policy. not simply in this administration, i will add, but to the previous administration. because we have spent money as if it were not chinese, as if it were our own, as if it were ours and not that of future generations of americans. we are burdening them. and the $85 billion in tax increases that will occur along with $110 billion in budget cuts is estimated to have somewhere between a one-half to one and a

quarter percent impact on gdpgr. we're looking at the prospect of hundreds of thousands of jobs being lost. you mentioned the defense industry, but throughout this already beleaguered economy we're talking about more jobs being lost. it's the most -- megyn: because there's no political courage in washington. >> there's no political courage -- megyn: none. the republicans don't want to raise taxes, and the democrats don't want to agree to any spending cuts. >> well, it's idiotic. the house has put forward a budget. it's idiotic to raise taxes in this environment right now, there is no question. it is stupid beyond belief to even contemplate it. and to cut just without any kind of judgment our defense budget while we are asking more and more of our troops? that is mindless. and what i can't understand for the life of me, megyn s why this is not a focal point of debate and discussion on the campaign trail -- megyn: because they just blame each other. they just blame each other. the white house came out with its budget saying it's plummet,

it's indiscriminate, it's not responsible, but we're going to do it anyway, and it's all the republicans' fault, and they say it's all president obama's fault. >> well, we can say because we have got considerable evidence to this fact that it is the white house's idea. megyn: it was their idea. >> and it was signed on to by republicans. if there's any doubt in anyone's mind watching and listening to your voice and mine that these two political parties right now are in desperate need of some sort of transplant for character, for principle and for energy and a sense of responsibility to the people they serve, i don't know what would be required. megyn: yeah. we're going to have some programs be exempted like veterans' benefits, medical care and salaries of military personnel, but we're going to see cut for the war spending in afghanistan and many other military cuts. i've got to run, lou. >> you've got it. i want to adjust one thing. at the low end of these tax increases, it'll be a 50% increase on the tax rate on

those in the 10% bracket. figure that one out. megyn: wow. all right. well, when california went to set up its obamacare health exchange, they decided to set aside almost a million bucks to drum um support. just ahead, why hollywood execs are pushing it in your tv programming. they have carb steady, with carbs that digest slowly to help minimize blood sugar spikes. [ male announcer ] glucerna hunger smart. a smart way to help manage hunger and diabetes.

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megyn: fox news alert, and an update now on our top story. we are waiting for the state department briefing in just moments after we got some breaking news at the top of the hour. sources are telling our chief intelligence correspondent, catherine herridge, that there were no demonstrations at the u.s. consulate in libya prior to the attack that left our u.s. ambassador, christopher stevens, and three other americans dead. this is significant because it raises questions about the administration's repeated claims about how things went down in

libya including claims from our u.n. ambassador, susan rice, this weekend that those four murders were the result of a, quote, spontaneous protest that simply got out of hand. the administration has been saying that this is all about protests related to some video, and now our sources are saying that's just not the case. the state d. said on -- the state department said on friday that it doesn't want to answer any more questions on libya saying you need to talk to the justice department because there's an investigation by the fbi underway, and then they said the justice department is not going to talk to you either. so that's not that helpful. but we are waiting for a briefing from the state department and, hopefully, hopefully, the reporters there will actually press the officials on their refusal now to answer to the american people with any details on these items that we are seeing, this situation that we're seeing in so many countries abroad. stay tuned.

off to chicago now where mayor rahm emanuel is now trying to force thousands of teachers to get back to work, seeking a court order to end their strike which he says is illegal under state law. union delegates were expected to vote on a new contract proposal yesterday and potentially return to the classroom today, but they tabled that vote saying they need more time. steve brown, live in chicago. steve? >> reporter: hey, megyn. unlike you, i'm not an attorney, so i only play one on tv, but i'm going to try and walk through this anyway. there was a deal on the table, we had news on friday that there was a deal in principle on the table and that come sunday the house of delegates, the union's congress, if you will, would take up consideration of a vote to end the strike on sunday. that didn't happen because once they got it in contract language, well, they had some questions. there were some things they didn't like about it, so they're going to postpone until after they've had a chance to talk with their members throughout today and then meet again on tuesday for a possible strike vote. mayor err man well, apparently,

had had enough of this and announced last night he was going to be seeking an injunction. the injunction application is basically made on two arguments; one, that the strike is illegal because there's a deal on the table, and the economic issues have been ironed out so, therefore, by state law it is illegal because no economic issues remain, secondly that a clear and present danger to students exists as long as the teachers' strike exists because otherwise these students would be in a safe school being fed. they are not, so, therefore, that's what the administration says that they would like. a quote from the mayor on all of this, while the union works through its remaining issues, there is no reason why the children of chicago would not be back in the classroom as they have been for weeks while negotiations are worked through, while negotiators work through these same issues. now, an attorney -- a judge has already opined on this at least preliminarily in this sense. what the city wanted was an immediate injunction. judge peter flynn has said we'll do this on wednesday. so, essentially, mayor emanuel

looking for a quick fix, isn't going to get it. meanwhile, the teachers are still out on strike and still considering their options. back to you. megyn: steve brown, thank you. again, folks, we are awaiting the state department briefing right here in moments as they deal with dramatic new challenges to their version of the events in libya that killed four americans. plus, there are questions now about the first amendment after the administration leans on google about this video that criticizes the prophet muhammad which was at the heart of some faction of these protests. so, in other words, the administration wants to blame all of them on that video. it appears that is not the case, according to sources at least in libya. and, but some of them are, obviously, upset over this video, and now the administration is trying to crack down on google. is that consistent with our beliefs here, is that consistent with the first amendment? we'll talk about it. and the royal scandal over topless photos of prince

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with the obama administration double canned down now on comments made over the weekend by our u.n. ambassador, susan rice, who insisted repeatedly as the administration has done on a larger scale basis that this attack can be blamed solely on reaction to an anti-muslim video that resulted in protests that preceded, they claimed, the attack on our consulate. >> the fbi is, has the lead in this investigation. the information, the best information and the best assessment we have today is that, in fact, this was not a preplanned, premeditated attack, that what happened initially was it was a spontaneous reaction to what had just transpired in cairo as a consequence of the video. megyn: well, we are waiting to see if the state department is willing to answer questions about this now. in the meantime, they were supposed to brief reporters beginning about four minutes ago, they're running a little late. we're watching it. our chief intelligence

correspondent catherine herridge is following this, she broke the news, she joins us live from washington. >> reporter: megyn, thank you. an intelligence source on the ground in libya tells there was no sizable or significant demonstration on the ground, quote: >> reporter: the assault on the consulate came with no warning and included fire from more than two locations, fox is told, including rpgs, mortar fire including at least one round that hit the consulate roof as well as direct and indirect fire. there were two waves to the assault, according to the source. what was relayed to them was that in the first wave the attackers were heard to say, we got him. that was a reference to the ambassador. as the word spread, attackers regrouped and the second wave went after the motorcade and the support personnel. the head of the house intelligence committee, who has been briefed extensively on the investigation on the attack, was

first to publicly state that it was premeditated and in an interview with me friday, he explained this apparent disconnect. >> i and others and folks in dod look at it and come to a different conclusion that it had to be coordinated. lots of command and control, indirect fire, direct fire. there was even a stop for some period of time in the fighting, and then it was reengaged at another location around the consulate. so there's just lots of unanswered questions today, but there's a lot of other information surrounding it that leads me to believe that this was, clearly, an act of terrorism on a u.s. diplomatic site. >> reporter: and tz fox was -- as fox was first to report on thursday, one of the leading groups that is behind the attack has try today establish an islamic state in libya and has affiliations with al-qaeda in

north africa. megyn: catherine, thank you. >> reporter: you're welcome. megyn: events are now emerging as a question for the administration. we are going to hear from ed henry on the campaign trail with the president at the top of the hour. in the meantime, though, we are joined by brad blakeman who's a former deputy assistant to president bush, and dick harpootlian, south carolina's democratic party chair. it was already debated last week, gentlemen, whether the administration's claims -- we played the sound bite from jay carney on friday saying it's all about the video. that was already under debate because mike rogers was saying i believe this was a terrorist attack in libya and that it was preplanned. and now you've got libyan intelligence sources saying, brad, there weren't even any protests underway at the time this attack took place. so the administration's claim that this was the result of spontaneous protests that turned violent now appears to have a lot of questions surrounding it. >> absolutely. and i believe that this president and the administration

gave the excuse that our terrorists needed to step up their efforts in the other countries. we've seen now a dozen countries with the excuse that it's because of this video, and it's unfortunate that our administration has given them the excuse. unfortunately, we're not that excuse. the attacks in libya were done as a premeditation, they were done in my belief because of the 119th anniversary of 9/11 -- 11th anniversary of 9/11. had very little to do with tunisia -- megyn: okay, wait. i want to ask you this, brad, why then -- okay, so with the libyan president who was on the sunday shows as well, and now this intelligence source all saying this was preplanned, it was meant to coincide with the anniversary of 9/11, and they all say they believe it was an al-qaeda-linked group, and you heard katherine's report on that. why would the administration being trying to disavow that? unfortunately, americans are the targets of terror attacks, you know, more and more these days.

so why wouldn't they just say that was a terror attack on our folks in libya? >> because the question would have been then to the present administration how come you didn't see it coming, did you connect the dots like was alleged after the attacks on 9/11 in '01. so the administration would have to be in a defensive posture as to what did they know, and what, if anything, did they do to stop it as opposed to saying it was basically unforeseeable, we didn't see it coming. the other thing that has to be answered by the administration is why did our ambassador have such a lack of security? where were our marines? what was our presence other than rent-a-cops? and now it's under investigation with the justice department, so we're not answering any more questions. the cover up is always worse than the crime that's committed, unfortunately, and in this case i don't think that's so with the ambassador and three other americans dead. megyn: dick, does this change, does this change the way this event's going to be perceived now, this report, you know,

first of all, the libyan leader coming out and saying this was a terror attack, a preplanned terror attack, and now this intelligence source telling fox that there wasn't even a protest underway at the time this happened? >> well, you know, this administration has sat osama bin laden and the top 26 other al-qaeda leaders to hell. and i find it strange, brad -- you worked in the bush administration, 9/11 on american territory, there's no recrimination, no pointing at president bush saying he should have seen it coming. this is just horrible politics 50 days out from a race. we're worried about -- megyn: but wait, but wait. you're off on a tangent though, dick -- >> no, i'm not. megyn: my question is because the administration has been telling us this was a spontaneous event that resulted from protests that were about the video, and now we have -- >> megyn -- megyn: -- folks saying there wasn't even a protest underway.

so is the administration even being straight with us? >> megyn, i haven't been in combat, but people aye talked to who have say in the fog of war it takes a while to figure out what happened. here we are trying to make this into political points that the administration's intentionally misleading somebody so they wouldn't be accused of -- >> well, why -- megyn: let him finish. >> wait a second, brad. let me say this. the administration believes -- and, of course, we're hearing from libyan intelligence which i may suggest is a contradiction in terms, but we're hearing from libyan intelligence something different than what the administration's saying. this will be sorted out. it is important we find out who did this and bring them to justice and have them join their buddies in hell. and that's what this administration's going to do. they're going to get drones and hellfire missiles sending them right to hell where they belong. megyn: that's the other question, brad. are we to believe the head of the libyan government and this libyan intelligence source, because is it to their advantage to say it wasn't about a

spontaneous protest by our people, they, you know, it wasn't us, it was some al-qaeda infiltrators who had this planned all along to happen on 9/11. >> well, chairman rogers of the intelligence committee, i think, laid it out. he was a former fbi agent. so if anybody is going to be able to connect the dots, i would assume that it would be him. and he's pretty much said there's too much coincidence here. the 11th anniversary of 9/11, there weren't any protests happening before this attack was made, it was made in waves, the attacks were made. they apparently had a target. the target was identified. the target was eliminated. so for the administration to come out, and i'll use dick's term, in the fogs of war, why then are they putting all their credibility behind this video? why then are they using the video as a catalyst for more unrest throughout the world? that's what's happening. our president has made their excuse his own. and it's only created a more dangerous situation. megyn: on matters of terror, you've got to believe, you know, that you're getting it straight.

you're getting the facts straight. john mccain said most people don't bring rocket-propelled grenades and heavy weapon toss a demonstration. he believes it was an act of terror. but those on the other side suggest that if you're hearing that from a republican, that there may be politics at play. there are politics at play, unfortunately, on both sides, so the american people are going to be left with more questions than answers. guys, thank you both so much. >> thank you. megyn: well, the administration suggested last week that google, quote, review the video that the administration is blaming for a lot of these protests in the middle east. up next, judge napolitano weighs in on the first amendment questions coming now from this request. don't go away. [ female announcer ] the power to become a better investor has gone mobile. with features like scanning a barcode to get detailed stock quotes to voice recognition. e-trade leads the way in wherever, whenever investing. download the ultimate in mobile investing apps, free,

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i've been fortunate to win on golf's biggest stages. but when joint pain and stiffness from psoriatic arthritis hit, even the smallest things became difficult. i finally understood what serious joint pain is like. i talked to my rheumatologist and he prescribed enbrel. enbrel can help relieve pain, stiffness, and stop joint damage. because enbrel, etanercept, suppresses your immune system, it may lower your ability to fight infections. serious, sometimes fatal events including infections, tuberculosis, lymphoma, other cancers, and nervous system and blood disorders have occurred. before starting enbrel, your doctor should test you for tuberculosis and discuss whether you've been to a region where certain fungal infections are common. don't start enbrel if you have an infection like the flu. tell your doctor if you're prone to infections,

have cuts or sores, have had hepatitis b, have been treated for heart failure, or if, whilen enbrel, you experice persistent fever, bruising, bleeding, or paleness. [ phil ] get back to the things that matter most. ask your rheumatologist if enbrel is right for you. [ doctor ] enbrel, the number one biolog medicine prescribed by rheumatologists. and what they said is amazing. ereview 5-hour energye biolog medicine over 73 percent who reviewed 5-hour energy said they would recommend a low calorie energy supplement to their healthy patients who use energy supplements. seventy-three percent. 5-hour energy has four calories and it's used over nine million times a week. is 5-hour energy right for you? ask your doctor. we already asked 3,000. megyn: fox news alert as we watch the video, as we watch video of new protests around the

world today, we are getting word that google has blocked access in some parts of the world now to this controversial video, and we are hearing that it, nonetheless, rejected a request by the white house to reconsider its decision to keep it online at all. on youtube. joining me now is judge andrew napolitano, he's a fox news senior analyst. you've got this video, there's no question it led to the some of these videos, and the white house calls up google which owns youtube and says we strongly encourage you to review your decision to keep it online -- >> right. megyn: they say, we reviewed it and we're keeping it, does that raise first amendment questions? >> it does raise first amendment questions. just as the baseline, the first amendment governs the government, it doesn't govern google, so google is free to take down what it wants on youtube. but whenever the government puts a little pressure on somebody, tries to get them to do something it wants and the

person is free to resist the government; with respect to speech the courts call that chilling meaning that google would think twice in the future about doing something like this because, oh, we don't want to have to deal with the government. and other people would think that way. and the government is not permitted to chill speech. it is not permitted to deter people from the free exercise of their speech because the government doesn't like the speech or doesn't like the reaction to the speech. megyn: they already said that they're censoring the video, google is, in india, indonesia, egypt and libya because of laws this that make this kind of speech illegal, so those are their laws. but the laws in this country allow this kind of speech, do they not? >> absolutely. this speech is absolutely protected in this country. megyn: so why would the white house, i mean, does it make sense that the white house would lean on them, notwithstanding the first amendment, because we've seen such an outroar, uproar? >> well, for the white house taking this down would be a quick and down and dirty solution to it. the reason i say down and dirty

is because the solution for bad speech, hate speech, junk speech, garbage speech, whatever you want to call this is not censorship, it's more speech. but censorship is a lot easier for the white house. my own view is i'm very happy that google didn't take it down not because i want to see the kind of riots that we're seeing, but because mature, intelligent people should be able to view this thing and decide for themselves whether it is truly the cause of these riots or whether it is a pretext for the cause of these riots. megyn: you've watched it. >> i've watched it. it is one of the most inarticulate, inaccurate, poorly-produced pieces of junk you've ever seen, and you could interpret it however you want. it's hard to believe that this 13-and-a-half minute clip has inspired ten, maybe hundreds of thousands of people around the world to rally as they have, to demonstrate as they have to burn and to kill. but the administration wants us to believe it's not the administration's policies that have generated this behavior,

it's this one idiotic piece of so-called film which has been out there for two months. >> a big first amendment attorney and -- >> we both know him. megyn: he's got a great blog, and he came out and said the problem in encouraging google or in getting a private company to curtail speech hike this is -- like this is it's like paying the ransom, and it'll only invite more bad behavior because the next time somebody does something that offends these radical islamists, they're going to remember that we bowed this time, and they're going to do something even more incendiary. >> you know, google has some people who work there who agree with the professor and who agree with you and me on this. google exists to return money to its shareholders, but occasionally it defends freedom. and by not taking this down, it is defending freedom. megyn: judge napolitano, always a pleasure, sir. >> good to be here. megyn: when california decided to set up its health exchange,

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megyn: state of california pushing obamacare and looking for a little help from hollywood in making it popular. california is one of the first states to set up a public health benefit exchange program, all the states have to do that under obamacare, so people can get online and buy health insurance as mandated under the health care law. and now the state would like tv producers to get involved drumming up your support through programs you may know very well. trace gallagher has more from our west coast newsroom. trace? >> reporter: oh, you'll know 'em well, megyn. california has the most

uninsured, roughly seven million people. most of those are hispanic, but all told the uninsure inside this state speak 24 different language, so even though this health exchange isn't set to go online until january 2014, the state has paid almost a million dollars to an agency called ogilvy public relations to get the word out about these exchanges. they're going to put up billboards and coffee cups, but they are also going to get some actors involved in this and actresses to sign on to see if they can get some help in this health care, and "the new york times" is reporting that they are also going to use some of your favorite television shows such as "grey's anatomy" and modern family, reportedly others will also join in, and not just to help promote, but to we've obamacare into the -- weave obamacare into the plots of the shows, right? we've contacted these shows, they have not gotten back to us yet. now, separate funding has

already been used to sign up dr. oz to tell his viewers to, quote, get educated, get engaged and get enrolled. and there's even a plan for a tv reality show to talk about leving without -- living without health care in california. $16 billion deficit in the state, megyn, the estimates are it's going to cost $2 billion of state money a year to get this thing enacted, and if governor brown's tax rate increase doesn't pass in november, this is going to be a tough deal to get going on time.gyn: all righk you. well, a reminder for you now, we're waiting for the state department briefing. it was supposed to start about 25 minutes ago after sources in the intention community offered a serious challenge to the administration's version of events in libya, actually, it is a source -- it is a libyan intelligence source who was challenging the administration, and now we are getting pushback from a senior administration official. we'll bring that to you, and we will hear from ed henry who is with the president in moments. plus, the royal family takes

legal action over topless photos over the duchess of cambridge, prince william's wife kate. kelly's court takes on the case. ♪

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megyn: we have a new twist in the conflicting accounts of the brazen and deadly attacks on americans in libya. i'm megyn kelly. up to now senior administration officials have been saying the attack on the american consulate in benghazi that took the lives of four americans and happens 11 years to the day after the athanks in new york on 9/11. they say the was spontaneous and grew out of a mob of protesters over a video that insult the pro fess mohammad.

catherine herridge is telling fox news there was no demonstration prior to that attack that killed ambassador chris stevens and three other americans. the head of the libyan government came out over the weekend and says he believes it was preplanned. but now we are being told there was no protest at all. however, moment ago, getting new pushback on that report from a senior administration official who is telling fox news that's not true. according to our cia there were a couple of hours worvet protests going on prior to the assassination that took the lives of four. ed henry is traveling with president obama in ohio. ed? >> reporter: what the administration officials are also saying is they believe the libyan president how mentioned said he believes this attack was in fact planned out,

premeditated. he also says he believes when all is said and done it will show al qaeda was involved in this attack on the 9/11 anniversary. so he clearly seems to think it was a terror attack. senior u.s. officials are insisting they contradict that by saying the libyan officials don't have all the facts. they don't have all the information the u.s. intelligence community has. the obama administration saying the u.s. intelligence community has a consensus that in fact these attacks were not planned out, were not premeditated and were essentially not a terror attack. take a listen to what susan rice, the ambassador to the u.n. said and what senator john mccain said. >> the best information and the best assessment we have today is that in fact this was not a preplanned, premeditated attack. that what happened initially was it was a spontaneous reaction to what had just transpired in

cairo as a consequence of the video. >> it was clearly an act of terror. people don't bring heavy weapons and rocket-propelled grenades to demonstrations because they want to demonstrate. it was very well carried out with direct fire and indirect fire. so for the united states government to say it was a spontaneous act flies in the face of the facts. >> reporter: the last point by senator john mccain was a point made to you on your program friday. mike rogers the mayor chafnt house intelligence committee also suggested it was planned out and premeditated. when senator mccain suggests this was a terror attack that might be something the administration does not want to admit to, especially if this investigation is not complete. but that could become an pen bigger political football if the administration had to admit there was a terror attack this

close to the u.s. election. megyn: reaction from someone who knows the muslim world very well, ambassador john bolton. and we'll get his take on then candidate obama who said if elected the relations between america and the muslim world would be better. from the moment violence erupted in the middle east and governor romney criticized the administration's response when the embassy tweeted out an apology to muslim feelings. some called romney's response a gaffe and called his campaign badly damaged. add to that the president getting a bump from his

convention, suddenly they have romney's campaign as dead. >> look at the florida number, joe. the fact that -- think about what, happened this week in florida. we have this poll. we have the president up 5, sitting at 49%. you have the obama campaign deciding to double its advertising * in the state. if you cut florida off, it's over. everything else, it is over. >> the narrative developing is romney is a loser and any slight misstep or hesitation in his voice is going to be then highlighted and exaggerated by the media to then confirm the narrative they are trying to sell that romney is a loser. >> it's a state that's close in polling and fundamentally is leaning republican. don't know where it's going to go. it's clearly a tossup.

i would say ohio is a little bit tougher for romney right now. the president has done an awful lot of advertising up there. he has been driving a message, the bailout of the auto industry is helping the president a bit there. but that state is not off the map for either candidate. i go back to what i said at the beginning. if somebody tells you they know how this is going to turn out they are lying to you or deluding themselves. megyn: chris stirewalt is our digital power pole particulars editor. last week spoke volumes how most in the mainstream media feel about this race and perhaps how they want it to come out, chris. the romney campaign described as gaffe-prone, stumbling, struggling, and on and on because of his one comment about the initial reaction of our cairo embassy which was a comment the administration

itself dialed back and said was not authorized by washington. within 60 minutes of the time romney criticized it. but the whole narrative was about romney's gaffe. and now this nbc poll followed up by a rasmussen reports poll the next day which they totally ignored which showed the race within a point or two. you it tonight perspective for us. >> you wonder why a reporter or any political journalist would want to say a race was over. we have 7 more weeks of television out of this thing. we have to keep this thing going. right? i kid mostly. but there is obviously some institutional bias inside the establishment press as it relates to a democrat, especially the first african-american president. we think back to 2008 and it was love, man. it was deep deep love that you

saw between the press corps and then candidate obama. that's been a little disappointing but it's still there. for romney it's been fascinating to watch this play out. whatever mitt romney does, and this is something perhaps ought to be liberating for him and his campaign. whatever he does, he and his campaign will be deemed bungled and botched and terrible so maybe they ought to quit worrying about what the establishment press says about them and what said about their tactic. whatever they do they will be called fools. megyn: i want to talk to you about these polls that so many were so focused on in the mainstream media last week. there is no question polling has been bad for governor romney as it was been for obama. but they were focused on the nbc poll. it shows the president up 7, 5,

5. rasmussen conducted a poll after. he showed the president up not 7, just 1 in ohio. not -- by the way another pollster, american research group showed president obama up just 1 in ohio. florida he showed the president up not 5, 2. just 2 points there. in virginia he showed the president up not 5, 1 in virginia. yet that poll by so many media organizations gets ignored, chris, because you tell me, they want the momentum building for the candidate that they believe in. >> there is that, and all so it was their poll so they wanted to tout it more. there is the idea that says this thing is happening. the race is shaping up as we predicted. there is also self-flattery. there is an availability cascade

that goes on here. i want to remember this about the power of the narrative. and how powerful the media narrative is in an election. you were talking about trace gallagher how even in tv shows the president's 2010 health law will be touted inside these tv shows. any republican running, particularly against an incumbent democrat who is well liked by the press. any republican running will face it not just on individual stories, but it's a brushfire, a canyon fire they are trying to get through. and that's the challenge of being a republican challenger. that's the problem if you are mitt romney. megyn: we saw it when we were in tampa. the yahoo news agency said the republicans are happy to have a party while black people are drowning because hurricane isaac was headed towards the gulf coast. and he got fired.

that's the inherent bias. you look at an a.p. article that came out this morning. they talk about how with momentum on barack obama's. the rasmussen poll shows governor romney up, not barack obama. it talked about how mitt romney is looking to right his struggling campaign? how is it struggling? according to some polls he's winning. reports of infighting. there is one report in tonight cothat talks about infighting within the romney camp not long after a report came out talking about infighting within the obama cam. and talking about romney stumbling on his comments on the middle east. americans trying to be honest consumers of the news walk away thinking this is true and this is reality. >> maybe, maybe not. romney may have been the goat

last week on tuesday or wednesday. as people were talking about this and it was gaffe broken and this, that and the other thing. but now look where we stand a week later. now the questions are piling up for the state department and not being answered. now the questions are piling up that we missed this. how is it possible that an attack like this has been missed in the narrative has been challenged by facts substantially. i think wait for more facts to come in and you will make better choices. megyn: multiple sources are always welcome when looking to get to the actual facts. chris, thank you. the royal family is taking legal action to block publication of topless photos of the next queen of england. is this another diana situation, the paparazzi?

then candidate barack obama promised his election would result in better relations with the muslim world. are you okay, babe?

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>> i truly believe the day i'm inaugurated the not only will the country look at itself differently but the world will look at america differently. the i have lived in the muslim world. i am also a christian but i understand their point of view. megyn: that was candidate obama five years ago virtually guaranteeing a reset with the muslim world upon his inauguration. but the protests we see may appear to paint a much different

picture. joining me to discuss it is john bolton. he occasionally consults with the romney campaign. and he is a fox news contributor. it wasn't just barack obama who hoped that would be true. it was millions of americans. but has it turned out to be the case? >> no, it hasn't. barack obama approach was simplistic before he was elected president and it didn't get much better afterwards. this tragedy in libya and the violence that we have seen around the middle east is something that was entirely predictable to somebody who was paying attention. but the administration has gotten a political narrative at home that blinded them to the outside reality. take the tragic assassinations in libya. clearly acts of tear rim. these were not hyped up demonstrators. if your view is the war on terrorism is over, general motors is alive but usama bin

laden is dead, all these simple-minded talking points you won't be on the alert for these kind of attacks. the war on terrorism is still with us and just claimed four more casualty. we need to break out of this simplistic approach that the obama foreign policy represents and get real about what's happening in the middle east. megyn: some people believe president bush hurt or standing in the arab world and muslim world because of the wars in iraq and afghanistan. look at the pew research poll on that point. the opinion of the united states when it comes to unfavorable ratings. in 2009, look at jordan, pakistan and egypt, versus 2012. it's up trouble digits in all of those countries. the unfavorable ratings that we have with those countries. what does that tell you?

>> i think public opinion polls in countries like that don't tell you an awful lot. megyn: but burning american flags and death to america chants do. >> by obama's own metric he is a failure. it's the wrong metric, but that's further evidence he was so unaware of what american national security policy involves that he didn't see that trying to be popular can undercut american influence and make us look weak rather than demonstrating strength which may not buy you love but which can buy you respect. megyn: he's most likely regretting those comments we played a moment ago. but you are the expert. these radical islamists hate us. they hate us whether it's president obama or president bush. the reason they hate us is our support for israel. so you tell me, putting a

president romney in there, that would make the difference? >> the fundamental problem that we are facing is not even hatred of america, though that's an easy logical step from the extremist idea logical and extremist religious views that these people hold. obviously they hate america, it's so radically different from where they see the world. when a film like this comes out, the mohammad cartoons in danish newspapers. that's the protect for people who want to whip up this kind of discontent can use. it's critical to understand the causal relationships at work here. if you think the problem is it's something an american did, the answer is the correct arab behavior. we could censor films like that, and it would not change the extremist views these particular people hold or their view of

america and the west. megyn: you are not arguing it was necessarily anything president obama did that caused the hatred, but you are taking issue with his assumption that it could be changed by as you put it and others put it a policy of disengage it. >> i think it's simple minded to look at america's place in the world according to where it stands in public opinion polls. i don't even think american foreign policy should be affected by public opinion polls. i think the president has to make hard national security decisions and justify them to the american people. forget the polls. the polls aren't going to change with those kinds of numbers unless there is a radical transformation of their educational system. we have to pursue american interests unapologetically and let the consequences fall where they may. megyn: as these protests enter a

second week in the muslim world we'll talk to a pollster about the fallout. a former army doctor convicted of killing his whole family is getting a new day in court.

megyn: he claimed to this day that drug-crazed hippies killed his family. his story led to four books and a made-for-tv movie. now he's getting new day in court. >> reporter: good afternoon. a federal judge is reviewing

previously unheard evidence. the testimony is focusing on an affidavit from a now deceased u.s. marshal who claims he heard the prosecutor threaten stokley when she claimed she was present at the crime. it claims the prosecutor told stokley if you testify as to what you told me or said to me in this office i'll indict you for murder. author morris writes about the mcdonald case in his latest book "a wilderness of error." >> you ask me if i know things for certain. i know he did not get a fair trial in 1979. and it's about time someone addressed that fact. >> reporter: the government is

cross-examining wade smith. much of it relies on her admitted drug abuse on the night of the crime to discredit her testimony. mcdonald's lawyers are asking for a new trial. megyn: up next the debate on how the ugly and violent scenes of american protests around the world could change this presidential election from two men who know. the scandal over topless photos of prince williams' wife first published in a french magazine. now intimate photos appearing in more magazines and the royals' legal team is pushing to stop their publication. can they do it? and is this turning into another diana with the paparazzi

situation. "kelly's court" takes on the case. >> to understand what happened in france when someone shoot these kinds of pictures. we know that today the key magazine editor point out that these pictures are very common and they were taken on a balcony, not so far from a public road. is that true?

megyn: we have been tracking reports of conflicts over what really happened when the u.s. consulate in libya came under attack last week. u.n. ambassador susan rice calls this a spontaneous event. libyan sources call it a pre-planned attack to coincide with the 9/11 anniversary. the state department said it won't answer any more questions on libya. it said go talk to the department of justice. but the department of justice don't answer any questions either. >> given ambassador rice is talking in public about it and referring us to the fbi, can we ask you questions about the circumstances of the attack? if it's fair for them bar doer to discuss it it should be fair

in this room are. >> ambassador rice outranges me as does my own boss. she is often at liberty to say more than i am and i guess that will continue to be the case. what i will say, though, is that ambassador rice in her comments on every network over the weekend was very clear, very precise about our initial assessment of what happened is. this was not just her assessment. it was also an assessment that you heard in comments coming from the intelligence community, in comebts coming from the -- in comment coming from the white house. >> one of the big issues here is how this event plays politically. with the election just 50 days away. joining us now, two men who work for the democratic presidents. so you can see the administration is very firm on

the fact that they say this is all spontaneous and everything we are seeing is linked to the video and they have gone so far as to say it has nothing to do with this administration or its policies. you can just sitting here at the table you can know there is no way they can fully know that. >> they don't know that, i'm not sure they believe that. but they have one absolute. they want to get through the next 50 days without the larger question of our relationship with the arab world. the issue of instaability and insurrection. they want to keep the lid on. as pat knows from his experience with jimmy carter. the hostage crisis was initially a positive for jimmy carter and ended up cost him the election. megyn: we have four americans who died last week. we took the ceremony which was very moving when the caskets and

the bodies came home. but doesn't the nation tend to rally around in an event like this? >> i was involved with secure america now which is non-partisan. we were in the field last week. we'll release result tomorrow. i think the president got a bump the first day because people rally. the problem is the deeper issues on iran, on defense cuts, on egypt are very negative for the president. they suggest he's far more vulnerable on these issues than people imagine. any other president democrat or republican had done what the president did while the consulate is still burning and flown off to a fundraiser they would have been crucified. but what doug said, the mainstream media will stay in the tang for them rather than

providing their job of questioning this administration. susan rice is double and tripping down and saying -- and tripling down saying we don't have some answer any questions about it. megyn: isn't it true governor romney is running against obama and the fourth estate, the press. >> he's not running a particularly expert campaign. he doesn't have a clear message were the clear strategy. but i thought the degree of venom that was hurled at him last week was disproportionate to what he said. rather than focus on the fact we were attacked on 9/11 in two embassy with with as you say four tragic losses of life, the issue was parsing what governor romney said, when he said it and why he said it. he is facing a degree of bias in the media but ultimately he has to recalibrate his messagen national security as well.

megyn: you had a few long voices asking questions about how kid our ambassador wind up dead? karl rove was on fox news saying one of the questions that need to be answered is why was he so inadequately protected. why was he sitting there like a sitting duck in libya on the 9/11 anniversary. >> you would have to be a fool to think there is no problem on 9/11. my attitude about this is, this administration could not protect our ambassador on the anniversary of 9/11 yet has a full secret service detail with valerie jarrett when she is on vacation on march than vineyards. the republicans don't raise those points. the press doesn't. it's dangerous when the press decides its job is to suppress the truth. not just to favor obama, but to

suppress the truth and we are all in danger. romney has to get his own message together. but he has to understand he's in a war with the press. they keep letting the referees tackling you, sacking the quarterback and tripping you up and you don't say anything about it, you need to take that head-on. megyn: you look like a whiner if you go after the press. >> not anymore. megyn: you have got to be able to take your licks. but is it different when you have all the media going after you. >> that's why i think he needs a national security and economic message that rises above it that is both optimistic and clear and precise. megyn: the news came out today that governor romney is going to be switching to the specific things he will do to get the economy stimulated. the mainstream press is calling it a desperate move. yet ruse musen has him pulling

above obama. >> the trend line has been working against governor romney. the race is by no means over. but i believe governor romney has to buy time to get his message out in a way he hasn't done before. the mainstream media is not going to give him a break. >> doug and i have said he has to do what he's starting to do. give these speeches. go on television and do them. the debates will be more important than for any challenger since ronald reagan in 1980. i said we cannot debate reagan and let him proffer that he's not dangerous. and we got killed. and this is the problem for romney. and for obama. this is -- i have never seen -- press has always had biases. but nothing like this. megyn: you guys have been around the block. today we have fox news fair and balanced. you have more online sources that can help you get more of a

full picture and not just one side. but we have had republican presidents elected in the past not with standing our mainstream media that was all liberal. >> never have we had in which the majority of the press is not only in favor of a candidate, but actively working with that campaign and plotting to do so and become activist. the thing that romney has to do is ignore the media attacks, be positive, pro can tough, forward looking, develop not just five points but a vision of what he wants to take the country and where he is going to do it and stick to it come what may. if he does that combined with a national security message. megyn: he has been trying that. is his inability to impress you on that score, is that the media's fault? >> that's his fault. he's barely campaigning. he's been having one event a day.

what's missing in his message. he needs a sense of urgency. the country this trouble. he said this in his acceptance speech. megyn: it doesn't seem to be who he is. >> he's running for president. megyn: there was a political story that rips on governor romney and talks about infighting within his campaign. it's not unusual. there was one about president obama recently on e-book. there was some potential barn burner of a speech that had been written for him and he threw it out. it was fine by most accounts but it wasn't the most memorable. they say clint eastwood's was the most memorable. is that who romney is? the guy who is going to light the room up. >> we are in an economic crisis. the swing voters are saying what are you going to do that's going change my life. unless romney can answer that

question he will have a difficult time beating the president. >> three times at least he talked about you're children's future not being as good. he's not mentioned that since. that is an urgency that needs to be talked about. when you mentioned the president obama's e-book notice how much press coverage that got versus this press story today. megyn: bret baier is out in iowa and he's talking to some independent voters. one woman said who has been following these. she says she is leaning romney because of her children and the debt. the children. >> that is the issue. urgency. we are going broke. the economy is not working. megyn: we talked a little bit earlier the nbc-maris poll bad for governor romney. but then the rasmussen poll shows it much, much tighter.

>> here is the difference. rasmussen is polling plus one or two republicans in those states. the maris poll is more heavily democratic. i think the answer lies somewhere in between. it's a slight obama advantage, only slight, well within the margin of error. >> it's moving a bit. in florida this poll where we have the concern about iran. 3/4 of the american people and ohio believer that sanctions are not working and iran will give nuclear weapons to terrorists. all these things. but one of the things we found is in florida romney is now up. he's still behind in ohio. and that is a better state. but it is not quite way it's being made out to be. the selection is not over. they have not brought the president's approval down. and they have not dealt with the issue of the economy. if they do that, it's a whole

didn't game. megyn: coming up next. the british royals are asking a court to stop the spread of these topless photos that were taken, unauthorized obviously, featuring the future queen of england. i'm only in my 60's...

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megyn: "kelly's court" is back in session. on the docket, a growing scandal for topless photo of kate middleton. the couple's lawyers taking legal action to prevent the spread of the images with a french court expected to rule on the challenge there tomorrow. but one magazine says the pictures are perfectly legal since it claims the dutchess was visible from the street. the scandal evokes memories of the constant coverage of princess diana who died in a 1997 car crash as she was chased

through the streets of paris by the paparazzi. there is a question about whether there is any privacy for the british royals and whether there should be. now we have first it was a french tabloid. then it was picked up by an irish tabloid. then italy got the photos owned by silvio berlusconi. the brits say nada. we would never. sure. but does the royal couple have a case to shut this down legally? >> yes, they have a case. they can say you have got to stop this or the damages are going to be even greater. you pull them off your web site. no more exposure. and under the french system there are criminal liability up to a year in prison for both the editor and the photographer because the france code is very

specific. if you take these pictures in a private place. miss middleton was out on the street itself that would be different. but if she was back in a private place which she apparently was, that's illegal. megyn: how private can it be if it's visible by a telephoto lens. >> the photographers are saying she was visible from the street. we didn't put a webcam in their bedroom. she is on the balcony yucking it up with her husband. she is a royal. take precaution. her life is in a glass bubble. everyone wants to know what she does, where she goes. >> that's not the law under the french criminal code. a picture of a person within a private place within consent of

the person concerned. she is in a private place. it doesn't matter that that zoom lens camera can take from it a public place. megyn: so under the french code if kate middleton went into her private villa and stood in front of the dining room window, lifted up the shades and took off all her clothes, the paparazzi could not take a photo of her? >> that sounds implausible. that's not what anticipated by the law. what was anticipated was you are in a setting where people cannot see you. that's why they won't set it up in your bedroom. when you are on a balcony you don't take our top off. second thing about these criminal sanctions. it's very unlikely. if anything is going to happen in france, they will split the baby. megyn: how does this relate to princess diana, what we saw in france with her. but there is a question about whether she assumed the risk.

all thee of us are on tv and somewhat public figures. there is a reason youhip off your top when you are sunbathing. questions?

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megyn: we are going to get to these criminal charges. by want to talk about the italian magazine chief that published the topless photos. they piggy bakd off the photos in a french magazine. but they added more. they say she was on a terrace and we added this third one because we thought it was so great of her putting sunblock on her rear end.

so they have some rear end shots the french magazine chose not to publish. are they going to be in the clear because they didn't take the photos? >> i don't think so. perr they are only exacerbating the problem. you can't put an america law lens on this. this is a french law issue. french law is different on privacy action than it is in america. in france this is a legal liability for anyone who publishes photos. megyn: that same magazine in italy is the one that published pictures of diana moment after the car accident killed her. they are going to make more the sale. but it's the criminal liability. the photographer and the editor could go to jail for a year?

>> one year in prison and 45,000 euros. you look at the statute. it an is pass it trespassing. it an is pass it the photographer is stress passion as opposed to the subjective test of whether someone has the expectation of privacy. it depends on is it a public setting? is it a private setting? the photograph photographer is going to say, i didn't trespass. i'm a couple blocks away, four, five, six blocks. so there was -- megyn: there is a fundamental difference in these two stories. princess diana was on a highway on a public venue. a drunk driver caused her death. i'm not going to defend the paparazzi. but we are only talking about the paparazzi and their implication in this. she was on a public venue.

princess middleton was not. she was in a private plays.

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