>> coming up on "red eye" has the government invented a guacamole that lets you predict the future? if they did, you are eating it right now. >> he is in it for the right reasons. you know he is going to do a good job, but i wouldn't put him in charge. >> and finally who is the best water skier of all time? this squirrel, an old man in a speedo or anyone who rocks a pony tail and does it barefoot. none of these stories on why the red eye" -- on "red eye" tonight. >> this is andy levey who is filling in for greg gutfeld.

let's welcome our guests. we couldn't afford a guest so the court appointed one for us. i am here with criminal defense attorney remi spencer. and she is more delightful than cut up pieces of hot dog in a large bowl of macaroni and cheese which is delightful. it is joanne nosuchunsky. >> and good for you. >> and i hope i don't mess up his name. it is sum-ju. >> it is sam morrell. >> and he is thinner than he looks like on "saturday night live." fox and friends co cost on the fox network. >> it is now available in paperback. >> a block. the lede. that's the first story. >> it is a low blow to those who can't go. they are upset at the direct tv commercial with a a painfully awkward version of

rob lowe who can't pee in public. have a peek, peekers. >> i am rob lowe and i have direct tv and i am painfully awkward rob lowe and have cable. >> fact, direct tv has been ranked higher than cable for 10 years. >> fact, i can't go with other people in the room. >> don't be like this me. get rid of cable and upgrade to direct tv. >> now a shy bladder advocacy group, yes there is one, joanne, is demanding the ad be pulled. you can say it is their number one problem. their ceo complains, quote, the portrayal makes it look ridiculous and this guy is a loser for having a problem. what if he didn't have a leg or arm? will you make fun of them? a spokesman says the ad will stay and, quote, all of our commercials take place in a fantasy world and not based in reality. in an unrelated story. here is a turtle enjoying a bath.

>> can't tell you how unrelated this is. welcome to the show. >> i was never on a pam and wanted to be called on. >> welcome. go ahead and ask me a question. >> should people with shy bladder syndrome be upset about this or should they get direct tv which obviously cures this problem? >> are these pie only two choices? >> yes. >> i would say i am so confused by this ad. number one, this is one of the things where you get so into the ad and what is happening, they finally made a way to make rob lowe not 6y. i didn't know it was possible. he did it himself. by the end of the ad i don't even know what it is for. when you gave me this i thought this is going to be a big thing and so awkward that i will run to the people with these problem side, but it is

so short and so minute, part of the ad i do not see their point and i withdraw the story. >> really? so we hospital do the -- so we shouldn't do the story anymore? >> what else happened yesterday or last night that we should be leading with, brian? >> it is on the tip of my tongue. can you go to someone else? >> remi, i am old enough to know when regular rob lowe was super creepy rob lowe. they had the sex tape that was him having a threesomy. it is amazing how much things have changed where regular rob lowe is cool rob lowe. >> that happened a decade ago. it has been awhile and he has been cool again. he went from being cool to being criminal to being object obsolete and now he is back and he is cool. i don't know. this video -- this commercial, i don't find it offensive. i think rob lowe said it the best on twitter. people have to lighten up.

it was not a specific target to anyone. they were trying to be silly and stupid, and sometimes groups of people get lumped into a joke, but it is not meant with malice or ill will. they have to lighten up. >> the head of the international group says the ad is ridiculing a serious problem. is it really ridiculing a serious problem? >> i can't believe it is a support group. i have stream problems. i never thought of joining a group. i go to a stall like a decent human being and mind my business. by the way, rob lowe is a 16-year-old girl and it is too bad it is not uncool rob lowe because maybe he could have performed. >> that would have been interesting. >> the state in which he did that, 16 was the age of consent so he did not break laws by doing that. >> if i remember there was is a video recording involved. >> i am being told we don't

have that. >> we can't make fun of people who can't pee. what can we make fun of anymore? i am getting down to people in toupes and prematurey jack could you laters. >> maybe get up and get some rest and you won't offend anybody. >> that's your advice for everything. >> joanne pitched the story, but you haven't talked to her yet. >> no, because you keep talking. are we as a society becoming too soft? >> yes, we are, but that's not an awful thing. what i like about softness is it is comfortable. thank you. ii can relate to the support group. i can't go in the ocean. i wish i could. i have tried multiple times when the bathroom is too far away. i can't bring myself to do it. i went on the website to see if there are tips. you can't just be a normal

person checking out the website. you have to register to look at these message boards. which i think is the insensitive thing. >> i think there is gender discrimination on the website. >> speaking of, this is why we need more gender neutral bathrooms. why due need the urinals? just use stalls. >> can you picture joanne's e-mail, the spam she will be getting because she registered for this site? we'll see what offers you get by thend of the show. >> direct tv says the ads take place in a fantasy world and not based in reality. >> i did not know that. jay does that mean we shouldn't trust their claims? jay exactly. >> they are busy, angry people and we cannot be asked to decipher what is real and not real. for the longest time i thought there was a good rob lowe and a bad rob lowe. and now i find out there is one rob lowe, but more than one direct tv. >> there is also more offensive ads on tv. have you seen the life alert ad where the old lady falls

down a flight of stairs and yells help! how is that allowed? all companies should do that, just worst case scenario ads. a guy waking up next to a trany, lens crafters. >> i am being told we will have the rob lowe sex video in time for "fox and friends" in the morning. >> really? i am being told we will not be able to air that. >> you may need to adjust your run down. he is not mopey and still has hopey. >> election day hot quarters. >> president obama held a conference to discuss the mid-term elections. do they deserve credit for running good campaigns? >> republicans had a good night and they deserve credit for running good campaigns. >> what about everyone who voted? do you want them to know you hear them? >> to everyone who voted i want you to know i hear you.

to the two-thirds of voters voters who chose not to participate in the process i hear you too. >> i am glad he hears me too. have i to ask, are you going to be busy for the next two years? >> i am going to be busy for the next two years. >> well, my question -- do these election results make you mopey? >> i don't know. it doesn't make me mopey. it energizes me. >> obviously. of course many democrats were sad and mopey or soapy. take a look.

>> i those poor people. brian, did you watch president obama's news conference? >> yes. >> what did you think? >> i was so -- the questions were great. i was just wonder whg he was going to answer one of them. for an adult to use the word mopey, i don't think that applies. i actually sense for the republicans who say the president must be getting the message because president bush did and president regan did. he did not get the message. he says look forward to seeing you at my place. you won't be back. and the question is how come we have only seen mitch mcconnell in six years? i don't know seems like a good guy. just haven't thought to have him over. >> do you think they will get drunk together at the meeting? >> kentucky bourbon, right? >> kentucky bourbon. >> is there any other kind of bourbon? it is not bourbon unless it is made in kentucky. >> sam, you reported on elections for decades now. >> many, many times.

>> put tuesday night in perspective for us. you have 17 minutes. >> who did a worse job yesterday the democrats or my barber? it was a rough day. a lot of progressive policies prevailed. raising the minimum wage, marijuana in small doses legalized. it is the best time ever to work at a kinko's. you have to look on the bright side. minimum wage is up. in nebraska i think it is $9 an hour now. if you work at a wal-mart you can now almost afford to shop at wal-mart. >> something that is being criminally over looked, the city of berkeley passed the first soda tax. 75% of the vote they got on that one. are you happy about this? >> i don't think it is criminal if that's what you are asking. >> it wasn't. you said it was criminally over a loft. i don't think scow do is go --

soda will be treated different than cigarettes. it is a matter of time. there are going to be pockets of this country where big brother is going to think they know what is best for you and your diet and your family, and they are going to make it more difficult for you to buy soda or candy bars or whatever the case may be. that may be a problem, but that's what the voters voted for. that's why we have elections. most people, i saw a lot of lawyers yesterday and a lot of business people. i asked them, did you vote? did you go in and vote? i didn't see a single person who actually voted yesterday. as the president pointed out in the clip you showed, most people are not paying attention to the mid-terms. i think that's how we get crazy outcomes like that. >> that's why he pointed that out. the people that vote against it and for the two-thirds who didn't bother because you love me, i hear you too. there was nothing subtle about that at all.

>> it was unbelievable. >> i want to get back to the berkeley thing. berkeley obviously a good representation of middle america. i think we will see a lot of other cities that will be doing this, right? >> possibly. and it could begood. it is not a ban. it is just a tax. and it is a metaphor for life the tax is a few pennies an ounce, but like those pennies, the calories add up. they are saying they could make over a million dollars in revenue because of the tax if you keep drinking that soda i am just saying you can balloon. well not you. >> just in general. >> and what did you have before the show? >> i don't want to do that because it has a label on it. >> you are part of the story.

>> clearly this is the most important story of the night. >> do you like the tax or not? >> answer the question. >> it is not a ban. >> so it would be okay if the city said we are not going to ban brunettes, but we are going to tax them? jay it is just a tax. >> -- it is just a tax. >> if you are buying women -- >> is there a price on women? >> i don't know. i just don't like -- the best thing that happened last night was martha coakley lost the race. she was an awful person as you were telling me. >> is she the same woman that called curt schilling a yankee fan and the same senator that lost to brown which was ted kennedy's seat? >> as long as she wasn't his financial advisor. >> that's harsh. we are going to move on now. should your phone be prone? a virginia judge ruled defendants can be forced to give up physicaller prints so

cops can unlock and search their phone. the case came up with a man wanting to strangle his girlfriend. his lawyers refused. giving up pass codes would violate the right of self-incrimination under the fifth amendment. phones lock using a fingerprint scaner because they are akin to a dna sample or physical key. for more let's go live to the chief legal correspondent. >> remi, i want to point out if it comes down to you and the bird and legal correspondents, i don't want you to feel bad. you were a finalist. >> i am confused by the whole thing. >> it doesn't make a lot of sense to the average person.

if you are not a lawyer and not splitting hairs. >> did you just call me an average person? >> all of them. we have average people and that's the distinction. the distinction the law makes with respect to our right against self-incrimination. they sort of -- the courts have drawn a line in the sand. you don't have to say anything that will hurt you criminally. but the law says the government can take your dna evidence. they can take a swab because it is minimally invasive and it is not necessarily incriminating. the courts are also evaluating our privacy rights to our phones. how much can a police officer see on a moment's notice. do you need a search warrant? and in this case there was probable cause. rather than waiting until forensic scientists or analysts could break the code, the judge said it is similar to a dna swab by putting your

thumb on the phone and that's how they gained access. >> okay. i still don't understand. >> either way they will get into the phone. do they have to go through the length of breaking the code or something the defendant put his thumb on it. >> there would be four or five times i have seen you in the bathroom and your phone's camera has gone off. how do you feel about the fingerprint thing? >> i have a pass code. can i tell you? >> what it is? >> here. in case i am ever arrested that's it. >> that's the sext number. >> that way i don't ever forget. this is confusing, but i enjoyed the two-shot you were a two-shot and i thought here with the other side, but it never paned out. my feeling though if you strangled your girl end from -- your girlfriend i hope you have more than what could be in the phone.

is that all of the evidence you have and can you possibly get a warrant to make him do that? if the girl is dead you put him on house arrest and go back and figure out the phone thing. >> remember those old rotary cell phones? >> i don't know. i guess -- stick to a crappy criminal. this is the law not moving as quickly as technology. this is scary. we all have stuff on our phone that we don't want strangers to see. it is the diary times a hundred. i have pictures of my niece. i have conversations and ex-girlfriend stuff. >> not with your niece? >> it is legal in new york now. >> i had a premise of the

punch line. >> it is rubbing off on you. >> what is on your phone? >> i have a pass code so you won't be able to easily see it. >> i have nothing incriminating on my phone i am aware of unless somebody put something there. in the winter time i wear gloves that have the little sensors so you can use your phone. it is freezing walking around the city with your phone. and i am not to take off my gloves. real i am thinking of my own comfort than the legal issues. >> i don't want to bring down the table, but a guy got action ahead. if you desperately want what is on my phone and running on the other side of law and need my fingerprints and i refuse to do that, what do you think

the recourse is? >> john dough in "seven." cut his fingers off to save the fingerprint. my idol. we will be right back.

lumber jack? more like lumber joke. they forced an employee to leave after it was discovered he posed nude in "play girl" magazine. he filed a lawsuit alleging sexual has -- harassment. he was subjected to ridicule after he appeared in a lumber jack spread. according to the lawsuit jokes included is a comment about homosexual men viewing the photos and what they would be

doing. and employers would say timber in response to the plaintiff and the plaintiff photos. it got so bad he was forced to leave and now seeking damages for lost pay. speaking of being unfairly rid sculled. unfairly ridiculed. >> that person should be shot. right? >> i don't know. >> thank you for agreeing with me. i will go to remi first now. this is one of those he said-they said-type cases, right? >> probably not. i think this is a hostile work environment and i am not surprised that he is suing. i am curious why he iss suing three years after the fact if he left his job in 2011. >> i think he sued last year. >> so you have been all over

this story? >> absolutely. i have a google alert for this. >> i'm sure everyone on the panel knows we have laws against what your employers can do to you. and also the environment in which you work. if there is a hostile work environment and it didn't make it reasonable and to make it a safe and productive work environment. he may have a very decent lawsuit. the question is how much is he entitled to. >> it is like reverse sexual harassment. co-workers made fun of him. shouldn't they have applauded him for being good looking enough to pose as a lumber jack for "play girl" the way we applaud steve doosey? >> yes, that's where most of the anchors are recruited

from. you are 49 years old. how can you succumb and be overwhelmed by words? what are you 9 and being yelled at by the 11-year-old? grow up. plus you are in "play girl." at one point he shaved his body. he should not be ridiculed and know that people will find this out. jay how do you know he shaved his body? >> have you ever seen a guy in "play girl"? >> i have never seen it. >> didn't you see the pictures were not part of the story we sent around. >> i overresearched. what the hell. i got way too much information. >> sam, is this a good lesson for anyone considering posing for "play girl." >> the question is can you get hired as a lumber jack? >> i guess he could have been harassed.

this is not the movie "philadelphia." you may want to chill out a little bit. this is how guys are. if we want to tease you -- if he will be a boss some day and he is like you had a bad quarter someone is going to respond. >> you know what, some people don't understand art. they don't. it is a tasteful magazine, so i hear. you have to embrace it. if you are 49 years old, and we have all done stuff in our past that we need to be proud of. if it was sexual harassment did he contact hr? did they take care of it? >> he says they did, but they didn't. >> he did all of the things he needed to do to lay the foundation for a claim. >> if he is upset now, these pictures are not going to become public because andy

levy and his team is running with the story that will be international news as with the pictures. >> maybe he can model. if he is looking good he should go back to it. >> that's sort of the problem. he could have gotten a job somewhere else, but now anytime you google him it will come up. they will now be shouting timber at him. >> and he has to go in for the kill on this one. >> if this was like a firefighter spread do you think he would be getting the same crap? >> wow that was a question that makes no sense. >> a lot more fire in the hole comment. >> is it the fact that lumber jacks are not really seen as strong, fabulous people anymore? >> are they? that's my question. if it was a different profession? >> he posed naked and he shaved his body to do it. that's what the -- where the ridiculed comes from. >> lumber jacks, there are

lumber jack games now where you climb poles quickly and get down quickly and cutoff sleeves. >> naked? >> a lot of sprinters. >> that would be too dangerous. no there are games. congressman duffy who is a congressman hence the name. he is a lumber jack. >> i did not know that. how did you know that? >> i have a wealth of information. it is starting to flourish here. coming up, a man accidentally buys a $3,000 bottle of wine. should have taken gentlemen anne's advice and stuck with the mad dog. first a word from our sponsor. >> tonight's sponsor is psychics, profits, suit sayers and anyone else in the prediction business fnlt you bring the future to us now. see you in 2016.

>> please shut your phone off. >> i did. >> should you have to pay for a rare cabernet? a man ordered a crazy expensive bottle of wine by accident, but is he to blame or the server? he was dining in atlantic city and asked the waitress to pick a bottle. she picked one and quoted the price at $37.50. he agreed, but then discovered it was $3,750 or what he

spends on tooth -- toothbrushes. then they agreed on $2200. he said it was not great, but it was fine. if you saw that price on the bill you would have dropped the benjamins. >> i spent some of the best years of my life as a pater. -- waiter from the classy places and other places like bennigans who is now out of business. 24 is a waitress or waiter. your research team will tell you you -- she upped the price because you know you get a percentage of the bill. i said 3750, i have an allah alibi. alibi. i have a dog and take care of my yucker brother. i have expenses. >> do you know this waitress?

>> no. >> that is one example and i am trying to bring it home. >> what do you think? is the server at fault? jay if it is established the server said 37.50 and not 3,750 then the server is at fault. i have been at this restaurant. it is in atlantic city and new jersey. i give a seminar each spring and we go with a big group to that restaurant. it is a very pricey restaurant. the people who patron there are uh flew -- affluent. when they ask for a bottle of wine they expect to spend $100, $200, $3,000. but no one expects to pay $3,700 unless there is a big production. if you are asking for a recommendation it is the waiters or waitresses' jobs to say this is one of our most exclusive boat it -- bottles

so there is an understanding that you just opened a nearly $4,000 bottle of wine. >> is this why you should never ask for recommendations? >> it is ridiculous. he said i don't know much about wine. he said try this wine. that's crazy. honey would you like this napa cabernet or would you like to take care of the heating bill for the winter? i am going with the heat. >> if you don't know much about wine i can't tell the difference between a $3,700 bottle of wine and $20 bottle of wine because i know nothing about wine. if you say you know nothing about wine you don't need to recommend i spend $3700 on a bottle because it is wasted on me. will drink anything. in my mind there is no difference between a $300 bottle of wine and a $3,000 bottle of wine. this was a 2 011 napa cab.

it didn't age that long. i don't know what the big to do is. the markups are ridiculous. then giving it to him for $2200. they problem blow still made a profit. it is retailing on-line for $1800. i think the restaurants double the price of bottles of wine. >> typically. it depends. if you -- i spent some of the worst years of my life in restaurants. one of the places i worked at marked up 30%. >> don't wine drinkers get what they deserve or deserve what they get? >> back in your place, wine drinkers. i can never get -- obviously, yow anne, you do noah lot about wines. >> i do. >> you should be proud of that. i am not in that class and i refuse to have mixed drinks or anything but beer.

i don't want anyone making a presentation. even though at ben sh -- bennigans they told us to put the towel over the arm. >> you would think it is a tax or box. >> if you order wine at bennigan's you are not classy. a new study claims that sad songs can [bleep] were interested in finding out what makes melancholy music so appealing. and they found listening to downer music can trigger partially wonder. this makes sense for a bunch of reasons. if you are sad and listen to sad music you think i am not the only one who is sad. >> yeah. they said the tempo has to do with it. but i think it is the lyrics. when you can relate to the spirit.

adele is my spirit animal. a lot of depressed times were spent with her. one day my pain will get me that too. >> i think this could be in the sucks to be you factor. >> you are like, well, my life isn't great, but i wasn't involved inked mopped fits gerald. duke --ed mopped fits gerald. >> blast a little during sex. it works both ways. sometimes you hear a happy song and you are like, come on. i heard tonight is going to be a good night and it was at 3:00 a.m. in a walgreens drugstore and buying stool softener. maybe a little "boom, boom pow" is more appropriate. >> melancholy is usually

beautiful. >> i suppose. i don't necessarily agree with the results of the study or the outcome of this. if you were in a dark place or lost a loved one and you hear something sad and it resonates with you, i would throw myself off a bridge if i was walking on one. it makes things i i think more mellow dramatic and more unbearable when you hear other people are sad and upset. i don't agree with this at all. >> what is your favorite sad song. >> tell me about how you feel about this. >> can't live without you. i can't breathe without you. if you only knew what i was going through. i just have to ask you. how do you feel?

>> a little tired and hungry. >> i don't think you reading lyrics is the same thing as listening to a classic like bury man low. >> if i theard that song it would take me back. >> well that's what the study said. i don't think sad mu pick makes you happy, but the memories can. >> the album "requium for a friend" there is a song on there used in the" tree of a live soundtrack. it is incredibly beautiful and sad and makes me feel happy. >> they sing the coping "die young. >> time to take a break. the muse will caliper form mans mans -- performance from technotronic.

say hello to my little friend. who can forget that line from "the godfather." one of the most memorable in movie history. the all time greatest line belongs to buzz light year "to infinity and beyond" from 1995's" toy story." it edged out michael cane from "the italian job." other notables included "you are gonna need a bigger boat"

and" frankly my dear, i don't give a damn" from "gone with the wind." many quotes were not included which would explain this line from pass trick swayzee. >> back off poor child. >> i think we hoe how he fell. what is your pick? >> i will buff you are gonna need a bigger boat. >> apparently that was ad libbed. it is corny, but get off my plane air force. it is very direct. >> it is hard to take that -- >> what do you make of this list? >> i think most of the people who voted were younger than me. even i can't stand that movie

with the buzz light year. >> you don't like that movie? >> no, i don't. i didn't have toys growing up. it is fine. i was surprised that not even the top 50 was monty python and the holy grail "i am not dead yet. i would definitely put that in the top 50 and see how people vote. >> does the movie have to be a classic movie for the line to rank as an all time great? >>ç no it has to be important to you. to you, andy. my best line that means the most to me, rocky three, show of hands and when mr. t was asked for a prediction in the rematch which he eventually lose. prediction? i have a prediction, pain. that moved me. he went on to lose. >> you based your career. i feel pain.

>> have you or any other lawyers you know throw out a you can't believe handle the church. the whole trial is out of order 679. have you ever done that? >> i have never done that. i have tried them do something like that. >> it doesn't come off well. we all had moments where youer where you could hear the "law and order" power of the -- powerful moment. i would say any things as far as lines, every line from "casablanca." here's looking at your kids, harris, play it again sam. all time best line from that movie. >> he never said play it again sam. >> she did.

>> he said play it sam. "play it again sam" great movie too. >> i saw rocky 4. >> classic wine from play it again sam. a honeymoon we spent the whole two weeks in bed. >> or go to the opposite end of the spectrum like airplane don't call me shirley. with the classic movies a lot of these quotes they had were not from ones past like 1980 you are wondering if they are making movies differently? i think it is because movies that sell now are the ones who have action scenes or sex. you don't talk to any of those. >> i talk during action season all the time. gentlemen, you can't find it here. this is a war room from dr. strapping's lover. strapping love. >> we will talk about drone porn which is a second subject.

>> coobt be more different -- couldn't be more different. >> are on is it? we will find out when we come back.

you can see me on lou daabs tonight, thursday at

7:00 p.m. eastern on the fox business network. up tomorrow, tom shillue, jedediah bila and will ron. >> e block. last story. that's the last story. >> we mentioned at the top of the show brian's book "the secret six" is coming out in paperback. i'm sure all of our viewers read it on the hard cover or kindles. in case one or two and maybe they are new viewers tell them what it is about. >> i added something new. we have new clues. it is about george washington spry ring that only you and gutfeld knew which he is in denial. >> you said numbers. >> she is agent 355 and now we have 7 entries who it could be. it is out there and now number three in the.>> what are the se?

>> we were losing the war and we were going to get killed. he set up a spy ring. he set up six citizen spies and never got a lot of acclaim. in the end it took in 1930 now through washington's letters we could piece together what they did rvetion basically up either the -- unearthed and have the british battle plan ahead of time to washington and in route there. we were able to get a lot of information and worked on it a longtime. >> i don't like how you say we were losing the war. >> i don't even like the idea we were losing. >> my fault. >> who were the secret six? >> a bartender which can relate to, expwroa anne, a farmer, a just list who owns a print shop in manhattan. vai leb brewster.

and then you have on top of that you have 355 who is a socialite and got into the social scene and got everyone comfortable and she was able to get back to the intelligence. >> who wrote this book? >> i don't think that was a good idea. what made you want to write this book? >> because it is a subject -- honestly i never heard of it before you wrote the book. >> i found out living on long island it existed by a guy painting a side of the road in 1989. i said i never see him do it with a guide and a hand. 24 is the route washington went to thank his spies. my follow-up question was what spies? 20 years later i had a book. >> that's unbelievable. we have to go. check out his book.

special thanks to remi spencer and sam morrell and joanne nosuchunsky. i'm andy levy and maybe i will see you next time and maybe i won't be around. who knows? no. what is your wish? no...ok...a million bucks! oh no... geico. fifteen minutes could save you fifteen percent or more on car insurance.

much of the business world. i'm dana, along with kimberly, bob, and greg. this is "the five." after last night's senate sweep and historic wins by republicans, this afternoon, finally, the moment we have all been waiting for, the president's reaction. >> obviously, republicans had a good night. and they deserve credit for running good campaigns, every elect shung is a moment for reflection and i think that everybody in this white house is going to look and say, all right, what do we need to do differently? but the princip