absolutely free. and my book "we the people" make as great gift for the political junkie, history lover in your life. that's it for us. i'm in for bill o'reilly. please remember the spin stops g out for you.ç breaking tonight, new video of that disturbing incident involving president-elect donald trump's daughter ivanka being berated by an angry passenger on a plane. even worse her three young children were traveling with her. i'm sandra smith if for megyn kelly tonight. ivanka trump was traveling with her three children and husband. when another passenger noticed her and went off. the man reportedly screaming at her, jeering at our children and much more. getting himself eventually kicked off of the plane.

his partner posting this photo on twitter showing ivanka visibly upset. and just moments ago, a tmz camera crew caught up to the couple to ask them about the confrontation. >> can i just ask if you regretted? it was it a bad idea to do it in front of everyone's kids? >> the incident raising serious safety concerns about the new first family. in moments a kelly file exclusive, sean çspicer, the newly named press secretary will be here to respond. peter doocy is live in palm beach florida with more on this bizarre incident involving the future first family. what are we learning now. >> reporter: even though ivanka trump was sitting with her children and the holidays are here, this agitated air travels laid into her because he was upset that he had to share the coach cabin of an airliner with

her. some of the lines that this man directed at ms. trump included quote, your father is ruining the country. why is she on our flight she should be flying private. but given the chance to share his frustrations with the world, that flyer froze up. >> can i just give you a chance to tell your side of the story, man? can i just can you, man, an hour before takeoff were you planning on harassing her? >> tmz also reports the passenger who couldn't keep it together was holding a small child of his own but still didn't sensor himself. didn't think that was a spur of the moment emotionalç outbirs before boarding the man's husband geeted ivanka and jared at jfk flying commercial. that twitter account describing

the disrupter's demeanor as calm has been taken down and the traveling party that was removed from the plane was delayed getting from new york to san francisco. but they were still allowed to fly today because jetblue booted them from that jet and rebooked them on a later flight explaining that flight attendants were following flight protocol. the customer will be asked to deplane especially if the crew feels the situation runs the risk of escalation throughout the flight. nothing got physical on the flight and by all accounts ivanka and jarod kushner took the high road, they didn't yell anything back. >> peter doocy, thank you. we need to discuss. joining us now, david wool and nomiki konst. what do you make of this entire situation. i mean everybody kind of looked at this incident like what

happen. it did appear that there wasç premedication by the tweet sent out by the man's partner saying he spotted ivanka trump open ran after her. >> that creates a security risk in and of itself. let's not kid ourselves. if that they had done this to barack obama's children they would not have been put on another flight. they would have been put on the no-fly list. this is the type of juvenile behavior that's exploded on the left since mr. trump's huge victory. if you have a problem with mr. trump, tweet him, send him an e-mail, do not attack his family because you'll end up paying the price. i think this is going to go further than being booted off of the flight. this is really bad news. >> if you're like me, you were saying, where is the security. first of all, everybody was shocked she was on a commercial airliner sitting coach with her

family. where is the skburt ecurity in this. secret service was present. but they did say ivanka trump has full secret service protection as the daughter of the president-elect. but still for this man to berate her, a mother in front of her three young children. >> listen, i commendç ivanka trump and jarod kushner for living a civilian lifestyle, trying to live a normal life amidst the chaos. but she's not a simple civilian. she's not just the daughter of the president. this is somebody who is trying to be a va vilian who claims she's just the daughter of donald trump but also shows up to high level meetings with d dignitaries around the world. >> she duds not have any official role -- >> so that justifies her being attacked on the airplane with her husband and children. and when this clown has his

child with him, he attacks as well. nothing justifies this. >> your same sentiment was echoed in a piece in "vogue" today. they said this is just the latest in backlash against ivanka who has repeatedly declared herself as just a daughter, sitting in on her father's meetings and phone calls. meeting with foreign leaders. so that gives this guy the right to berate her in front of her family while she's trying to go on a vacation? is that what they should expect and are you okay with that? >> i'm okay with anybody being disrespectful of our ç presidency, no matter who that president is and i say that as a democrat. i think people need to be careful and cautious with how they articulate their feeling. this person was not violent. they were liker other new yorker who screams at people on the streets. president bush had a shoe thrown at him. this is very normal. let's not blow this out of proportion. does it mean it's right?

no. >> i give jarod tremendous props for being restrained and holding himself back. had that been my wife i don't think i would have done that. you're on a cylinder going 7 miles into the air and who knows what's going to happen if those clowns are allowed to stay on the plane but when they were removed. >> i don't condone it. >> we've got that. >> let's not blow it out of proportion. he yelled at her. >> an eyewitness who said he was sitting 15 inches from ivanka spoke to nbc earlier and he said he completely agreed with getting this man thrown off of the plane. he wasn't shouting but he was physically shaking when he approached her. and he said that she handled the situation calmly, with class. it was security that ultimately made the call to remove him. he even claimed that his -- >> classicç trump derangement syndrome. it's spreading and it needs to be handled. >> i think you're blowing it out

of proportion. this is going to happen with any president. let's be clear. you're pitting one side against the other. >> if you have a problem with the president, e-mail him or tweet him. he loves twitter. do not attack his daughter. >> he loves encouraging extremism on twitter. we all know that. >> thank you for sharing your thoughts. also breaking, president-elect trump announcing his pick for white house press secretary. it was long awaited and now rnc chief strategist and trump transition team member sean spicer has been chosen and he's talking first to "the kelly file" about his new position in the trump administration. sean spicer joins me now for a kelly file exclusive. how did you find out about the gig? >> mr. trump called, said congratulations. i told him i was honored. it's an unbelievably humbling moment to think of some of the people that are held this position and what it does. it's an opportunity to speak on

behalf of this country, on behalf of the next president of the united states and deliver them the messages and news of wzere this country is going and what it's doing. it is humbling to say the least, to realize some of the folks who have had this job and the footsteps that i'm going to walk in. >> considering donald trump ran anything but a conventional campaign, everyone is wondering what is your job as press secretary going to look like, considering all of the criticism we've seen from donald trump of the media, various outlets, individual reporters tweeting at them. what does your job look like. >> i think there's a difference between calling people out and understanding the role that the press plays in a free society. the press has a right to go out and write stories. and communicate things. but i think similarly to what donald trump has proven both as a candidate and now as a president-elect, when people are wrong he's going to hold them accountable and he's going to correct the record. it's going to be -- he's used twitter more effectively and

social media between twitter, facebook and instagram. >> do you like that? will he continue that? >> it's not a question of like. it's unique. he has a direct pipeline to the american people to talk to nem them in a way no one has done before. it's absolutely fascinating and it makes every day, every hour just unbelievable because you know thatç you're having that conversation with the american people and they can have it back with him. and he's not having to put everything through the filter of the mainstream media. >> you don't have to look far to see your name in headlines all over the place. washington post, trump chooses sean spicer fer press secretary. when you dig into the article, it says filling what is likely to be a challenging position given trump's sometimes hostile relationship with the media and his propensity to bypass staff to communicate directly on twitter. that is some of the criticism -- >> i don't know if it's

critici criticism. he's the bth president of the ud states. he doesn't answer to us. we has a direct pipeline and if he wants to use twitter to speak to the american people directly. that's what he should do. he's the president. it's not our job to tell him what to do. it's to serve him. >> let's talk about how you role might look different than previous press secretariesecret. one of them works right here at fox news, dana perino. you hinted with megyn kelly last week maybe daily press briefings are not needed. are you goingç to do away with those in. >> can we do things better? can we put the american people first in some of these. so maybe it's -- you saw how effective they used facebook live. are there things we can do -- it's not a question of getting rid of certain things. maybe we add certain things.

we want to be inveinovativinnov entrepreneurial as we look at all of the government agencies. >> will there be daily press briefings? >> i believe we'll have daily briefings. maybe everything is not on camera. maybe more people come into the group. he mentioned kalely anne conway. >> what will her role be, the highest ranking woman in trump's white house. >> she was also the first female ever to win a presidential election. kelly anne is one that shatters the glass ceiling. she will continue to play the senior role of counseling him, giving him ideas, talking about how to shape an agenda. >> let me talk to you about a couple of things in the news right now. ivanka trump and this jet blue plane incident. >> clearly there was somebody trying toç act out of line and think jet blue acting accordingly. they went on twitter and made it

clear that their intention was to harass her and her family. that's inappropriate. to do that to a woman was on there with her children, i don't care what your political background is or what you thoughts are, that's not the way that we as americans need to act. >> drain the swamp. newt gingrich hinted that maybe that messagining was going away >> i think the president made it clear on twitter it's going to keep going. >> everybody the wondering where the former speaker was coming with those words but he's since retracted that. >> one of the things people have to understand is that donald trump is the ultimate decider and he will tell you what believes and how something is going to get done. other people don't tell him what he needs to do. i think we've seen that time and time again. when you look at the lockheed, the boeing story with air force one. he isn't even president. he's gotten results on carrier, brought costs down on government

programs. he is going to get things done in way that people have never seen. the change that's going to come to washington is going to send shock waves through the system. >> seems like every pick that donald trumpç has made his critics have dug up something on them. are they going to find anything on sean spice center. >> i hope no. i hope that every day i serve in this job i make mr. trump proud, reince priebus proud were governor pence and the american people. he's asked us to make this country proud of us and make the country great again. >> thanks for being here. congratulations. >> thank you. new reports, eric trump is responding to criticism. and the controversy that plagued the colinton foundation. trump transition team insider anthony scaramucci is here on that. we've got stunning new video on the berlin terror attack.

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generosity is its oyou can handle being a mom for half an hour. i'm in all the way. is that understood? i don't know what she's up to, but it's not good. can't the world be my noodles and butter? get your mind out of the gutter. mornings are for coffee and contemplation. that was a really profound observation. you got a mean case of the detox blues. don't start a war you know you're going to lose. finally you can now find all of netflix in the same place as all your other entertainment. on xfinity x1. narrator: developing tonight, amid allegations of pay for play, eric trump will stop fund rating for his own foundation. the move is being applauded by white house ethics lawyers but questioned by supporters who want to see the charity work continue. in moments, trump transition team insider anthony scaramucci

will be here on that. first were james rosen has the latest on eric trump's decision. >> good evening. apparently it goes farther than published çreports, the charitable foundation bearing his name -- he personally will will stop soliciting contributions. the foundation has raised $8 million to help the children at st. jude's research hospital. that step in turn followed the cancellation of an online auction to benefit st. jude in which bidders have reached $72,000 to have coffee with ivanka trump. the family withdrew his name from a fun raising deal promising million dollar donors that they could go on a hunting trip. kellyanne conway bristled when a

cnn anchor likened the children's charity to the clinton foundation. >> you're saying the same thing. >> i am not. >> paying a lot of money to hang out with the president is okay rnls when you let me know that eric trump's foundation took $100 million or so from saudi arabia which doesn't treat women and girls the way we treat them here, then we'll talk. >> a december 15th press conference in which the t%presi his efforts to separate the white house from his family's business empire and charities was abruptly postponed. hisdy ves chur plans will be in place and made public before he is sworn in. >> joining me you, anthony scaramucci, an executive of the trump transition team. what is going on here. eric trump had a charity in his name. he's going to stop raising funds for that charity or the charity

is going to shut down all together? >> the charity is going to shut down all together so it's a sad day for st. jude medical center, a sad day for charitable giving in that way. unfortunately what's happening in our society is we're polarized. eric is getting ahead of this thing proak tuffly before his father becomes president. >> some people are going to say he's not getting ahead of it, there may actually have been something more there. >> i really don't think there's anything more there. what happened is pre-presidency, come on a bear hunt with me and my brother, pre-presidency, have coffee with my sister. >> that's really whatç raised e scrutiny of all of this. >> all of that stuff was happening, donald j. trump as a business person. but now that he's in the american presidency, the legal team is come in in there and and

has to shut down the efforts. so for me and you and i have known each other a long time. it is a sad day because eric trump has been at the bedside of children who have died from childhood cancer. he's also participated in the miracles that we've seen where children have survived at st. jude because of the money that's been put there to help those children. now it's going to stop and it's going to stop for those children because of the poll tie zags or hoffer you want to say it of the system. it's a sad day. >> we have heard from his friends, people close to him saying it patienyne pains him h >> he's a phenomenal guy. i told my own children may they have the arrogance of the trump children, which is zero arrogance. it's unfair. i don't want to channel kellyanne conway but you have to think about the clinton foundation, 94% of it raised, didn't go anywhere, 6% of it

went out. he did a 98.2% drive throughç the st. jude medical center. >> we're talking about the eric trump foundation. what about the trump foundation itself. where does that stand? >> you know, i don't know super amounts about the trump foundation but my guess is knowing don mcgann as well as i do and knowing the president-elect as well as i do, they want to give the appearance of no impropriety whatsoever. so when that press release comes out and mr. trump is standing at the podium answering these questions from the mainstream media, you're going to get all of those answers. people are going to be happy with this family. >> the president-elect has been tweeting away and he just tweeted this a few moments ago, the so-called i-list celebrities are all wanting tix to the inauguration, he says. but look what they did for hillary. nothing. i want the people. that just happened. >> you know what's great about these tweets? you know when it's really him

tweeting versus some communications effort by our communications team. my guess is he really tweeted that. >> i talked to sean spicer and yes, he does most of the tweeting. >> i think it's one of the most effective tools ever l ever. he's coming over the top of the mainstream media directly to the american people. and the american people knowç when he's tweaking the media. and i've said this before, he says things symbolically that really the supporters love and the mainstream media takes literally and they go crazy. >> i'm trying to figure out who that might be? >> there's a big backlash, i think that the message for everybody is unification. he's goings to be our president and he's doing a phenomenal job of trying to bring the country together. he's enjoy one of the greatest celebrations for the united states. a peaceful transfer of power of the most powerful position in the nation.

how about that. >> merry merry, happy, happy. president obama with some words of advice to the flect regarding executive power. and brand-new video of the terror attack in berlin. the suspect in this week's terror attack in berlin was known to authorities in two europe nations and the u.s. europe nations and the u.s. former why are you checking your credit score? you don't want to ride the 13l forever, do you?

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breaking tonight, stunning new video of the apparent terror attack in germany this week showing the very first moments of the horrifying scene. you can see a truck on the left of your screen barrelling through the entrance of a christmas market.

before some clearly terrified shoppers start run in the opposite direction just a faux secon few section later. investigators believe anis amri was the perpetrator of the attack. he was no training to authorities abroad. and even in the united states senior foreign correspondent az more from berlin. >> reporter: we are at the christmas market in berlin that was the scene monday night of that terrible truck attack which left 12 dead and 50 injured, this as the investigation into the attack goes into high gear. and that means the search for 24-year-old tunisian man anis amri. angela merkel saying that officials think they're close to nabbing him. they found his fingerprints on the cab of the truck p. reports also say that that suspect was very much on the

german terror radar the past several months, arrested or detained a few times, monitored offering to commit attack in germany. and reportedly he was on the u.s. radar too, said to be on the no-fly terror list that officials said to have monitored him talking to islamists figures as well as checking out terror websites. now it is dark here now. in fact this market is closed. but earlier today we took a look at the market and talked to some people. here is what we saw. here is what we heard. >> it was here monday night that a place of joy was turned into a scene of terror. a truck weighingç 25 tons came barrelling into this christmas market here in berlin, smashing into people, killing and injuring, hitting stalls, decorations, ending up there about 250 feet down the way. now three days later this market is open again, a sign of courage, a sign of defines.

>> having it open right now, not just having feelings but for me it's a strong signal, a sign. >> a sign of what? >> that we are back on the road. >> terrorists that we stay strong. >> reporter: the u.s. embassy tells fox news that two americans were hurt in the attack. one one has been released from the hospital another is still in. we are told that there are 12 in hospitals right now and all of them are in serious condition. that's the latest from berlin. back to you, sandra. >> thanks so much. tonight's headlines are causing critic to bounce on the president-elect's proposed ban on immigration after he suggested yesterday that the situation in berlin proves that he is quote 100% correct on the issue. >> has it caused you to rethink reevaluate your plans? >> you know my plans allç alon.

100% correct. what's happening is disgraceful. >> pete hoekstra is a former house intelligence chairman and former trump campaign national security adviser, buck sexton, a former cia officer and host of "the buck saxton" show. this attack exposed problems with germany's immigration system. what have we learned? >> what we've seen is there are a number of points at which this individual should have been detained and sent out of the country. the fact that you would have someone who is known to fraternize with jihadists, who has been caught on surveillance tapes talking about procuring weapons, was clearly a security risk, known to be a security risk but they couldn't deport him from the country because he lacked a passport from his country of origin just goes to show how inept the germ man

immigration law is. i know they're overrun right now in germany in part because of to merkel policy to open doors to much of the refugee population come in from syria e" other places in the muslim world. because of that they're completely inundated with surveillance needs for known extremists all across the country. this is a security burden they can't really handle but in this case we're talking about somebody who made a lot of mistakes, who popped up on the radar. they should have detained him or kicked him out of the country or found a way to keep him in prison. they dropped the ball on security. >> when you look at this attack and the details coming it of it about him, about where he came from, what he's done, what we knew about this man and how he slipped through the cracks and how he was able to carry out such a horrible attack. >> what it really does is it highlights how ineffective the west, the europeans and the united states have been in fighting this threat from

radical islam over the last number of years. we've got five failed states in the middle east. what does that mean? it means that terrorists have enough of an influence to make sure that the central government doesn't control much of the nation. they incleed libya, iraq, syria and yemen. we have displaced people in that part of the world. 1 mill of them have gone into europe, many into germany. they haven't had the çvetting. this is why donald trump's proposals make so much sense. what is he proposing? we're going to have secure borders. we're going to make sure that we control who comes into the country. and for people who come from terrorists regions where the governments have failed, where we don't have proper documentation, yes we are going to have extreme vetting. hopefully we don't have what they saw in germany, an individual who they can't send back to their home country because he got into germany and didn't even have a passport. it shows you how hollow the

national security has been. >> as we approach new year's and inauguration day, we wonder if what we saw there, if it's coming here or more of it based on recent attacks that we have seen. it makes you wonder what the terror threat is today in the united states. >> they're responding specifically here at the berlin attack and others that it should be pointed out that have been thwarted by german authorities, but this is what the islamic state wants. they want individuals who have radicalized on their own to use everyday items, knives, trucks, whatever they can do cause mass casualtyç attacks in the west, against perceived enemies of islam in america and around the world. this is going to continue on. it's difficult to stop these kinds of attacks which is why isis is pushing for them. and we're in a heightened threat season because they've been

saying they want to hit us during the holidays. so an enormous burden on security services in germany, in europe and here in this country. we have to hope that we get it right every time or else there are going to be more like that. >> thanks for joining us tonight. coming up, breaking new developments on what's being called a turning point on the humanitarian crisis in syria. plus, if president obama having a change of heart on some of his most controversial decisions in the white house? wait until you hear his unusual advice to donald trump. then we'll discuss it with marc thiessen.

breaking to night, new development tons heartbreaking humanitarian crisis in syria. after four long years a major turning point as the government regains control of war torn aleppo. john hutty has the latest from our bureau. >> reporter: sandra, serious military said that its victory in aleppo is a quote strategic transformation and a turning point in the warç on terrorism. now the syrian government announced earlier this evening it had retaken full control of aleppo after the remaining rebel fighters and their family left the city.

heavy knew hampered the evacuation effort. a massive undertaking after syria launched the initiative to retake the city in november backed by russian air strikes. and since then we've seen the haunting images of the dead, men, women and children and the stories of survival. syrian president bashar al assad said that the victory in aleppo is not only for syria but for all countries fighting terrorism, especially russia and iran. russian, iranian and tur kirk officials plan on continuing talkings to end the civil war. but russian officials say that removal of bashar al assad from power will not be part of the discussion. hence the u.s. officials, including johnñgíqá ( while the battle for aleppo is over, it does not mark the end of syrian civil war as the rebel

commanders vow to continue fightingç bashar al assad's regime. developing tonight, president obama raising eyebrows for some edd ed advice he has president-elect trump on the use of executive power. watch this. >> should president-elect trump once she's inaugurated use his executive powers in the same way that you have? >> i think that he is entirely within his lawful power to do so. keep in mind, though, that my strong preference has always been to legislate when i can get legislation done. so my suggestion to the president-elect is going through the legislative process is always better in part because it's harder to undo. >> as you might imagine, many

critics are crying foul as mr. obama has made it no secret of his love for his pen and phone. listen to this. >> i've told my administration to keep looking every single day for actions we can take without congress. i've got a pen and i've got a phone and i can use that pen to signç executive orders and tak executive action administrative actions that move the ball forward. i've got a pen to talk executive actions where congress won't. where congress isn't acting i'll act on my own. i have gots a pen and a phone. that's all i need. >> marc thiessen is a fox contributor. you've got a big smile on your face. a beautiful montage put together by the production staff of this show. i mean he said it and then look what he did. >> it's quite remarkable to say what he said in that interview. the thing about his pen and his phone, he's still using it.

the day before he gave that advice to donald trump in that interview, he used hi pen and phone, took executive a to permanently ban off-shore drilling in hundreds of millions of acres of the arctic ocean in the atlantic coast. he took a law written 75 years ago to expressly overturn the intent of congress and the american people. he'll telling donald trump not to use his pen and his phone? donald trump is going to use his pen and his phone to undo all of the things that barack obama used his pen and phone to impose against the will of the american people. >> it is hardç to imagine that president obama has a leg to stand on offering this type of advice to the president-elect. >> well, i actually disagree. i think he has every leg to stand on because what he's saying is like do as i say, not as i did, which is actually very good advice in this situation, particularly given the fact that donald trump is starting with the majority in the house and the senate which is also how

president obama started. and then things fell apart and he lost that. not only did he lose it, but congress worked actively against every single measure that he had. and every single measure that he put forward. and donald trump right now is starting with not only what president obama felt that he had in both 2008 and 2012 which is a mandate in tfrom the people. president-elect trump feels the same way, that he has a mandate from the people that he's going forward to execute that, he has the majority in the senate and the house and now is the time to work on that. what the president is saying don't lose that without specifically saying, you know, make sure you hold on to your majority and get the legislation done aend try to do as much as you can. otherwise that's what we'll end up seeing from donald trump is having to do the same actions over and over if things fall apart for çhim. >> marc, you make an interesting point it makes it a lot easier to undo a lot of the things that he did do with his pen and phone when you do go around congress.

>> absolutely. and look, right now as we speak, obama administrations officials are burning the midnight oil tonight and every night going forward between now and january 20th to impose as many regulations and executive actions as they can to tie the hands of donald trump. he's going to use his pen and phone to do his best to untangle the mess they've tried to wrap him in. one of obama's signature legislative achieve khievment is obamacare. that's going to get repealed as well. he went through congress to pass that but he had the house and the senate. so he went through and he imposed that over the objections of the republicans. if you want to be successful and if you want your legacy to last, you have to reach out to the other party and bring them in so that they don't come in and undo your work. >> it does make you wonder when we saw the sitting president offer that interview and offer that advice to the

president-elect, it makes you wonder the next few years how much is the president-elect goingç to hear from president obama? will he be pretty vocal about his actions? >> i can't really speculate on that. but i will say, you know, president-elect trump has said repeatedly that president obama has really been very open and helpful to him and been wonderful during the transition. i think that will continue. i have absolutely no idea what president obama will do going forward or what his role will be on a national or an international level on a local level. i really can't speculate to that. but i think marc makes an amazing point which i agree with completely. whatever it is, whether it be obamacare, i think that is actually how everything sort of fell apart for obama, whether he'll say it or not. he ended up losing control of the house and the senate and that's what leads to having that -- where you have to do

executive orders to get what you feel the people elected you to do done. donald trump is not starting in that position. he's starting with the position where he's got what he feels is his mandate from the people who voted for him. >> okay. >> he has the house and the senate. he has the opportunity to have an incredible beginning of the next several years. >> jessica, marc, thank you. newç video of one woman's angry tirade going viral as soso i really did save hundreds of dollars on my car insurance with geico. i should take a closer look at geico... geico has a long history of great savings and great service. over seventy-five years. wait. seventy-five years? that is great. speaking of great, check out these hot riffs. you like smash mouth? uh, yeah i have an early day tomorrow so... wait. almost there. goodnight, bruce. gotta tune the "a." (humming) take a closer look at geico. great savings. and a whole lot more.

developing tonight, a vile and racist attack a vial and racist attack caught on film in a kentucky shopping mall. >> go back to wherever the blauç

you come from. hey, tell 'em toe bag where they belong. they can't aktd like -- they come here to live, they act like everybody else does. get in the back of the line and be somebody. that's the way i look at it. you're a nobody. just because you come from another country, it don't make you nobody. nobody as far as i'm concerned. probably on welfare. the taxpayers probably paid for all that stuff. i'm sorry, but that's the way i feel. that's okay, speak english. you're in america. if you don't know it, learn it. >> now, some are calling for that angry woman to face charges, but a local attorney says no one has come forward to make a complaint. here now marc eiglarsh is a criminal defense attorney and eric guster is an attorney and municipal judge who sees these type of criminal case also all the time. eric, you may not see this one because nobody came forward. >> in a case like this you have to have a complainant, someone

to sign a warrant to say i want to bring charges against a person, because any type of harassment charge such as this case would be a personal charge where the victim has to complain. it is a lot different than a murder charge or something elsewhere the state can bring a charge, so we're notç going to see this one unless a victim comes forward. >> mark, what did you make when you saw this? happening in a jc penny start. it was a white woman, two hispanic women. someone cut in line. it happens during these times, people are tired and upset, but inst an angry tirade. >> yeah, i found his speech as gross as what i've allowed to grow on my face, but as outrageous and offensive as we all find it to be, let's make one thing clear, i disagree with what was just said. it is not a criminal case. it is constitutionally protected speech, as outrageous and offensive as it is. the first amendment affords us

wide latitude to spew that kind of ugliness and hatred, believe it or not. >> okay. what rights though, eric, does the mall have in all of this? because they have responded, jc penny has responded. they said they would love to find the victims of the tirade, reimburse them for their purchase and apologize for their experience. >> that would be good. >> as far as the mall is concerned, once they identify the person they will be banned from the mall. do they have the right to do that? >> the mall has the right to do that. but first mark is incorrect. harassment is aç criminal char. that's abusive language, which this is two or three minutes of abusive language. secondly, as reference to the mall, the mall is a public place but it is privately owned. the mall has a right to ban anyone for any type of abuse, any type of offensive language, and it is actually in their code of conduct that the posted throughout the mall. >> sandra -- >> they will tell this lady she cannot enter the mall ever again. >> mark. >> he is right about the mall part, it is a private place. they can keep her out, issue a trespass warning. he is right on that.

he's dead wrong on whether this is a criminal charge. merely because people are offended -- >> mark. >> -- the supreme court has made it very clear, skokie versus illinois, the list of cases go on and on, we learned them in law school. you can be outrageous and offensive. i wouldn't mind if she goes to jail but i would defend her. >> you cannot use abusive language. >> eric, if someone present during that confrontation, what do you do if you see something like this? >> number one, it is great someone videoed it. secondly, you have to let the d.a. know you are a potential witness because this person may need extra witnesses to talk about the situation, to give the scope of it in case it goes to trial. >> eric. >> you cannot verbally harassç anyone without expectation goes of arrest. >> five seconds left. >> flag stick not a criminal offense. legally, unfortunately, it is permissible. it is morally wrong. >> we are to leave it right there.

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