>> greg: we're out of time thanks toss joe, kat timpf, tyrus, and our studio audience, fox news at night with dreamy trace gallagher is next. i love you america. >> trace: good evening i'm trace gallagher 11:00 p.m. on the east coast, 8:00 here in los angeles, and this is america's late news, fox news at night. and breaking tonight, another california school board meeting got very heated and once again sheriff's deputies were called in to break it up. this time it was all about flags. one school board saying it will only allow schools to fly two flags. matt finn is live with more on the decision and the backlash. matt good evening. >> reporter: good evening trace, the school board voted 2-1 last night to only allow the american and state flag on campuses.

banning the display of any other flags, including the gay pride flag. the topic thrusted the district into the national spotlight, it's been so controversial that last night's school board meeting ended up getting heated. deputies ultimately had to clear the 100 people in attendance out of the room. this all began in june when the superintendent allowed a pride flag to be displayed in front of the district's only school serving about 270 students in k-8. at the time, the superintendent reportedly said it signaled the school was inclusive. the flag was reportedly torn down just two days later. the school then put up another flag but was met with criticism. the school board president proposed a resolution banning any flag aside from the state and us flag and it was passed last night with support and resistance. >> in effect the resolution broadly bands free speech including teachers and their ability to put a pride flag on their desk.

>> it doesn't restrict their free speech. >> it does. >> don't take away their right. >> the school board shouldn't only fly two, the american flag for all americans and the california flag the state we live in. >> are the actions representing the people? have they talked to the people about this? no one ever talked to me about it. >> reporter: now the vice-president of the alameda county school board in which this school sits told our affiliate that she thinks litigation will be filed, trace. >> trace: it might happen. matt finn live for us in la thank you. let's bring in bethany mandel and bridget ziegler director of the leadership institute school board programs. ladies welcome to both of you. what do you think about this bridge it, two flags the american flag and state flag or should they let them all fly. >> first of all our classrooms with not supposed to be anyone's social or political activism centers. when we have proficiency levels declining on reading and math

it's a shame we're having arguments on flags. but we should focus on academics and if we can't agree with things i think the resolution of the united states and the california flag should instant. >> trace: yeah, i mean the whole thing, bethany, you have california schools, this is not the first district to do this. you have california schools flying pride flags, trans flags, blm flags, trump flags, sports teams flags and they all have to go. they're saying listen we're done with all of this stuff. what do you think? >> yeah. i mean i think she's exactly right. this is a distraction from what should be happening in the classroom. what does a flag represent? we should be as a country talking about, you know, education, and basic literacy and basic ability in mathematics. this is a distraction and they want the distraction. they want to distract from the fact that kids can't read, kids can't do math and, you know, it's time to settle this whole thing and move on. >> trace: meantime bethany and

bridget stand by for a moment because in virginia, parents at another very tense school board meeting started to recite the lord's prayer but they were quickly told to stop. here's an update from the chief religious correspondent lauren agreeing. watch. >> our father who art in heaven, haloed be thigh name. >> at this time we're going to go to recess. officers, during recess, can you clear the room? >> the cornerstone prayer of christianity was cited in defiance of a call for police to clear the room at the end of a school board meeting in suffolk county virginia. now, the board chair is under fire as legal teams demand answers in a letter first liberty institute and founding freedoms law center said, the constitution prohibits the government from excluding religious expression from a public forum. we ask that the school board clarify its policy accordingly. the spontaneous prayer began at the tend of a tense school board meeting when local parent angela kilgore wanted to pray for the

students and the school but was shut down. >> to pray for our schools is not permitted. >> that's correct. >> reporter: fox has reached out to the school board chair to comment on the letter and the prayer. he has yet to respond. trace. >> trace: yeah, laura, thank you. bridget, what do you say to this? what would you say to parents who started resighting a prayer at a school board meeting. >> listen i think the right to petition the government is a fundamental right and certainly when people talk about the separation between church and state that means the government imposing any kind of religious beliefs but the right for this individual to come and speak and pray in front of our school board i think should be acceptable. i know there's the challenge when we talk about decorum but we're in a time when we need to rise up faith something very unique about our country with constitution day being on monday, it's a very timely conversation and i would -- i support people expressing their religious expression and freedom. >> trace: bethany, politico writes this about the virginia democratic congressional candidate susan a gibson quoting here, so what if a candidate

live stream sex acts with her husband. while the post story might seem to spell the post rack particularsr political ruin we shouldn't be so hasty to write things off. today people's lives are more and more on line. is she fine to stream sex and then run for office? all good with you? >> so what's funny about this story is that she is accusing governor youngkin of leaking all of these videos that she made publicly available. and i just sort of want to talk to fox news right now and ask them why are they leaking this conversation that we're having right now. this is a horrible invasion of my privacy. this is exactly what she's accusing governor youngkin of. if you're not comfortable with these videos being publicly accessible, don't put them out there. >> trace: she did stream it. i mean, bridget she streamed it. >> yeah. >> trace: and she was getting paid for it and i've got 30 seconds for you to wrap us up here. >> listen, at the end of the day that seat's incredibly important especially when you consider the agenda governor youngkin puts

forward so i hope virginians are paying attention. >> trace: bridget, bethany great to have you on. thank you. >> thank you. >> trace: meantime the white house is either trying to win over the media or influence the media telling news outlets to ramp up the scrutiny on house republicans and the impeachment inquiry into president biden. the senior national correspondent kevin corke is live in dc with more on the effort to apparently control the narrative. kevin, did evening. >> reporter: that is certainly one way to look at it my friend. evening to you the. in sports parlance, trace, you can relate to this as a former college football player, they would probably call this working the refs just a bit. you know, complaining often enough and loudly enough to draw their attention to a slight or an injustice on the field of play perceived or real. only in this case, the white house is hoping to steer the press to do their bidding, to scrutinize and some would even argue to criticize house gop's impeachment inquiry. of course that is targeting the president's alleged corruption. but the white house is pushing

back tonight. quote, it's time for the media to ramp up its scrutiny of house republicans wrote ian sams over at the white house. for opening an impeachment inquiry based on lies. >> the only reason speaker mccarthy is doing this is doing this political stunt and we have seen it you all have reported is because majority marriagery taylor green has said she threatened to shut down the government. can you imagine shutting down the government over a political stunt. >> reporter: a political stunt says the white house but the speaker isn't backing down in fact he told our sean hannity tonight he's doubling down no matter how much the white house begs the press to intervene. >> the bidens have given the marching orders to the media. they know that they do not want to provide the information to the american people. and the american people deserve it. that is exactly why i did impeachment inquiry, to be able to give the answers to all these

questions. >> reporter: and tonight at a fundraiser over in the old dominion, the president apparently accused the gop of wanting to impeach him because they want to shut down the government. that's his story, trace. >> trace: yeah, kevin corke live for us in dc. kevin thank you >> let's bring in the republican governor from new hampshire, chris sununu, governor great to have you on the show. what's your take on this, the white house wanting the media to kind of put some scrutiny on the gop house members, what about scrutiny on the biden family? what do you think? >> yeah, look, there's no doubt about it. one thing i will say about impeachment, it really needs to be a method of last resort right? because it can be so decisive for the country. i think what speaker mccarthy has do is make sure he's super transparent with what this is about so people understand it is not a political stunt it has backing and merit. he's not doing it to apiece an ultra right winger or something like that. i think he has to do a better job frankly and i think that

data is there but he has to be transparent because let's face it most of america has lost faith and trust in what is going on in washington they think everything is a political stunt so it puts the onus on them to go the extra mile. >> trace: fair assessment. i want to go to politics, quinnipiac national poll, support among republican and republican leaning voters, you look at this and you have the former president at 62% and then you go down the line, desantis, ramaswamy, haley, mike pence and tim scott. the second debate two weeks from tonight governor. how do these candidates pick up some ground, stand out, you name it. >> well, look, nikki haley did that really well, i think even mike pence did that really well. they weren't attacking in that first debate they weren't attacking ron desantis, he stood and kind of looked right in the cam remarks explained why he was the second place candidate to former president trump. even vivek need somed name id and got a lot of name id. they all have their interests as they entered the second debate.

they can't just repeat what they did in the first, they have to bring something. and i think you saw the candidates that did the best in that debate wasn't just answering the questions where they are on policy, let's face it a lot of the policies are kind of the same, it's who brings energy, who brings that inspiration, who gets people fired up and charged up and we see that on the ground new hampshire right they're dolling retail politics, certain candidates come with extra something they come charged up and get bigger crowds the next day. at the end of the day anyone who thinks trump is going to run away with it, if seven of the candidates have the discipline to get out trump loses, when you think about it that way the voters job is to find the alternate to trump but the candidates job is to get it out of the race and if you do that and make it a one on one race he loses, he'll hold 40, 42% of the vote but that's enough enough to win especially going into super tuesday. so huge opportunities for these kids to say i'm going to be the alternative and make sure the other candidates ultimately know there's no room for you and there's too much at steak with

the entire republican ticket in '24 just to let everybody on there. >> trace: a lot of the polls would disagree with what you're saying. democrat i believe pollster andrew said to the atlantic it is a sad reality the race could be this close given trump's position but it is and i think it's very clear that trump can win this race if the election was tomorrow. because the polls are neck and neck. >> yeah. so the polls were neck and neck in 2022 and the republicans got their butts kicked. we should have had a huge red wave and we barely got by with a red ripple. we should have had big wins in 2020 and the entire ticket suffered. we should 6dz wins in 2018 and lost the house. the polls always seem to think the republicans are going to win but the reality is we don't. and when you have trump and his message on top of the ticket, we lost in 18, we lost in 20, we lost in 22. why would you think that it's going to be a different result in '24. i don't even think biden -- i think it's actually more likely

at this point that biden isn't on the ticket than trump and if that happens you're going to have a new candidate, a new generational change potentially within the democrat party and we're going to be here, as republicans, re-litigating what happened four years ago. >> trace: we shall see. governor thank you for your time. we appreciate it. >> you bet. >> trace: meantime is scopette press never danelo cavalcante is back in police custody tonight after evading capture for two weeks. ashley strohmier is live with the final moments of the manhunt. ashley, good evening. >> reporter: hi there, trace. convicted murderer danelo cavalcante was taken by surprise shortly after 8:00 a.m. wednesday morning. it was almost two weeks after he crab walked out of the chester county prison. he was located using thermal imaging technology and no shots were fired. >> brought a new level of danger for all of our people out here in the field when we knew that he obtained a firearm. and so, for me, the biggest sense of relief is that no one in the community was harmed, and none law enforcement officer was

harmed either. >> reporter: when teams moved in, cavalcante made a last-ditch effort to evade capture by crawling through some thick brush. that's when authorities released a dog who was able to restrain him. but as you can see here, left cavalcante bloodied when he bit his head. he was later treated for a minor bited wound but officials also say the capture may have happened sooner if it were not for a lightning storm. cavalcante has been transferred to a state prison facility. that's where he is going to serve out a life sentence for stabbing his ex-girlfriend to death in front of her kids. he's also wanted for murder in his native brazil. so we're also learning more tonight about who may have been assisting cavalcante during this great escape. police say they believe cavalcante's sister was among those who tried to help him. she has been arrested by ice agents and is currently in deportation proceedings, trace. >> trace: lot of people will sleep a lot better tonight in that part of the country. ashley, thank you ♪

>> the fox news at night common sense department wonders if anybody remembers the sound that the cartoon character scooby doo would make when he was baffled, sounded something like, huh? common sense made that sound today when it learned democrats until the california senate refused to vote on an amendment to combat the explosion of retail crime in california. the proposal was simple. it said that for serial retail thieves with three or more convictions, their next conviction would be a felony. and they might have to do some jail time. but not only did democrats kill the bill, they refused to even debate it. it was not to be discussed. and as common sense points out, this was only aimed at repeat offenders, and anybody arrested and convicted of retail crime three different times has likely stolen 300, 3,000 times because it's hardly ever enforced. the story gets better. this week, the state of california said it will spend

$267 million to combat retail crime. you know, hire more police, make more arrests, and secure more felony charges. but how do you secure felony theft charges when state lawmakers refuse to make theft a felony? common sense thinks in the end this might lower crime in california because it's really hard to have criminals when crime is legal. see, scooby doo was right. huh? meantime the clothing company american eagle is now taking legal action because of all the crime and deteriorating conditions in san francisco. the company is not suing the city, mind you, it's suing the mall where the store is located. let's bring in reformed california chairman carl demaio and chef and restaurant owner andrew gruel. gentlemen, welcome to you. i want to put in up on the screen. this is from ktvu our fox affiliate in the bay area. the apparel giant american eagle has filed a lawsuit against the former operators of westfield mall in downtown san francisco alleging it breached lease agreement by failing to maintain the property allowing it to

deteriorate into disarray which the retailer said results in the company and its employees being victimized by criminal activity. your thoughts on this, karl. >> i find this fascinating that you have all these big companies, westfield, american eagle, refusing to take on the politicians that are putting them out of business. instead, you've got american eagle saying, well, let's sue another company. oh, that's easy, you know, to do. if they had courage, they'd actually stand up and remove these politicians. they have lobbyists, they have campaign contributions that go to the politicians and keep them in office. these businesses need to put their shareholders, employees and customers first. they need to get involved in removing these political -- the politicians that have created the mess. >> trace: and i'm not doing scooby doo again for you chef but it is baffling when you have these kind of lawsuits filed. >> it really is and i'm not an attorney so i can't get into the specifics. i've signed enough commercial leases also to understand that perhaps there's a liability

there because the landlord is obligated to provide certain habitability and safety. but here's the thing, regardless of all of that and this could open up a whole stream of lawsuits whether they win or lose, we all know what to do to solve this. >> enforce the laws punish the criminals and prevent this from happening maybe provide sdmurt the gap in between. this is simple my 10-year-old could figure this out. >> trace: it really is. california vote to give striking workers unemployment benefits despite them owing like $18 million in covid benefits. they said the following, striking workers have a job they are just choosing not to work in order to create economic pressure and negotiate. that is not the same as having no idea where your next paycheck is coming from. fair point carl. >> ads insult to injury and dangerous. $30 million of fraudulent money was given out by california democrats because they didn't want to say no to even people behind bars saying hey give me these benefits. then they're raising the payroll

tax, the unemployment payroll tax in california to pay for this debt. then they add this new benefit to striking workers who, again, as kyle chamber points out, they willingly walk off the job and now what they want, people who are still working have to pay higher taxes to pay for that. finally, if you thought strikes were bad in france, wait until you see california under this law. there's no reason for people not to strike, and that's exactly how the unions want it. this is nothing but a give away to the labor unions. >> trace: really weaponizing these unions they have all the power in the world now they're getting paid. >> i go back to covid when they shutdown outdoor dining for the second time they said sorry everybody's getting laid off and this is what we need to do for safety. here's the thing when everybody got laid off they had no unemployment benefits to give to restaurant workers who we saw in our case get laid off. they said we'll give them in two or three months because we misappropriated so many funds. we started our own fund, we

raised $500,000 because the state couldn't do it and now they are throwing money out there again. >> trace: this is right in your wheel house chef because they said the fast food industry calls off the fight with workers in exchange for $20 minimum wage a last minute deal could lead to a $20 minimum wage for fast food workers in the coming year and end an upcoming ballot fight between the industry and labor unions. very quickly for both of you your thoughts on this. >> what's buried in this bill besides the minimum wage is they're going to put a nine person counsel over the businesses four people from the business four people from the labor unions and states and one independent breaking. you can't run your own business even though you put all the money in there, you now have a nine person board. >> could kill franchises in california. >> whether it's the franchiser restaurants and their lobbyists or any other industry in california, when are they going to negotiate you can't negotiate with terrorists. you agree to something, it's only half a dose of arsinic.

these business groups need to stand up for their customers, employees and shareholders, and keep politicians out of office. this is going to spread nationwide. these businesses are allowing it to happen here it will happen in every state. >> trace: carl chef thank you both >> coming up president biden loves bidenomics and is about to bet his campaign on it. problem is 7 out of 10 voters think the economy is heading in the wrong direction. we'll see if our political panel can figure out the strategy. and later in the nightcap if fox news at night gave you a time machine you could go back and do your high school years all over again, would you? and if so, what would you change? let us know on social media, x and instagram, at trace gallagher, weigh in we'll show you the results and read the best responses in the nightcap. meantime it's 8:21 here on the west coast and a fox news at night trip across america, first a live look at seattle along the water. and then to green bay wisconsin on the fox river. no relation, by the way.

and finally a live look at some place in massachusetts that starred with an n. anybody know how to say it? tonight on the bay, nehands. if you can't join us live don't forget to set your dvr and watch us anytime but the sooner the better would be much appreciated. we are coming right back. ♪ ♪ when better money habits® content first started coming out, it expanded what i could do for special olympics athletes with developmental needs. thousands of bank of america employees like scott spend countless hours volunteering to teach people how to reach their financial goals. it felt good. it felt like i could take on the whole world. teeth sensitivity is so common. it immediately feels like somebody's poking directly on the nerve. i recommend sensodyne. sensodyne toothpaste goes inside the tooth and calms the nerve down. and my patents say: “you know doc, it really works."

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duckduckgo comes with a built-n engine like google, but it's pi and doesn't spy on your searchs and duckduckgo lets you browse like chrome, but it blocks cooi and creepy ads that follow youa from google and other companie. and there's no catch. it's fre. we make money from ads, but they don't follow you aroud join the millions of people taking back their privacy by downloading duckduckgo on all your devices today. ♪ >> trace: president biden set to deliver what the white house is billing as a major economic address tomorrow in maryland where he is expected to tout his bidenomics plan. back live now to the senior national correspondent kevin corke. kevin, looks like a tough sell with the rising gas prices, inflation, et cetera. >> reporter: yeah, couldn't have said it better myself. a major economic address by the president coming, as you aptly point out, trace, at a time when many, if not most americans are increasingly feeling the squeeze

of high inflation, rising gas prices, soaring food costs, not to mention ballooning housing costs and rising interest rates. ah, but the white house still insists this is really a chance for them to tell a good news story about the economy, about job growth, about positive economic trends and their brand of bidenomics which they believe will boost the american economy before the 2024 election. that's the pitch anyway. how well it's received, of course, is anyone's guess. meantime, a loss for the white house to tell you about tonight. a federal judge in texas once again ruling that daca is illegal. however, it is still intact, at least for now, for the hundreds of thousands of illegal immigrants who arrived in this country as children. i've just got to share this i got this from the white house tonight, a spokeswoman says the administration will continue to defend daca from any and all legal challenges trace. >> trace: kevin thank you you.

let's bring in fox news contributor and syndicated radio talk show hose leslie marshall and retired colonel kurt schlichter. welcome both of you. joe biden loves bidenomics,en 7 out of 10 don't like it that much saying the economy's going in in the wrong direction and vivek ramaswamy says this. watch. >> so everyday americans understand when they go to fill up gas at the pump, buy groceries at the grocery store, there's a reason why they're feeling that pinch. and i think the shear level of dishonesty, the gall of the biden administration to be able to lie with these numbers. >> trace: i talked to people, leslie, who say, you know, it's not going well for me and my family and we're concerned that they think it is. >> i think the gall of vivek ramaswamy who wants to fire 1.5 million federal workers and really mess up our very low unemployment rate right now. but to the president, look, one of the things that we have, whether you're a democrat or republican and voters do this, and this has been a trend for as long as i can remember and been voting since 18 years of age, is when there are policies made

that benefit the american people, voters really don't feel it right away. it takes some time and that's the way it is with the economy. i think it's wise for any candidate to boast, especially economic gains when you have low unemployment, when you have rising wages. i think it's important to talk about their concerns and what you're going to do about that. and i think it's essentially important because he's not going to be talking about his age which every else is. >> trace: people don't have time though, that's the thing curtis, people have credit card debt, rent to pay, paycheck to paycheck they're living, they don't have time for the economy to turn around in their direction. >> you can walk out the door and it's $6 a gallon to fill up with gas. >> trace: yeah. >> that hurts, people are feeling the pain. look, i'm all for joe biden making his economic policies the center piece of his reelection argument because i want him to lose. >> trace: yeah. even the liberal knives are out on this. this is david ignatius in the washington post biden is never good at saying no, he should have resistd the choice of

kamala harris, he should have blocked then house speaker nancy pelosi's visit to taiwan and he certainly should have resisted hunter's attempts to impress clients by getting dad on the phone. biden has another chance to say no to himself this time by withdrawing from the 2024 race. it might not be in character for biden but it would be a wise choice for the country. that's i a big hit. >> it's a big hit based in opinion not in fact. one they said yes to kamala harris and they won, she's vice-president he's president. two, if you look at numbers and that's all elections are, they are a numbers game and the general election is an electoral college game. if the election was held today by electoral forecasters left or right joe biden would walk away with 304 electoral votes, also the incumbent and also going to be supported by democrats just as a republican would be supported by republicans. so david's wrong on this because honestly, if we said to joe biden, don't run and we put somebody up, even gavin newsome, we're going to be at more of a

disadvantage, that's what the numbers show. >> if david had written in her favor she would say david is right, the concept is you have a lot of democrats saying he's wrong on this. really? well. >> i'm so excited to agreeing with so much she leslie's saying tonight. like vivek saying fire 1.5 million, i agree we should fire three million. they're not going to take joe biden off the ticket, they're going to fight until the last stagger of the poor senile old man. and that's great i want him to lose because i love my country. >> trace: you said old man, would you support a national age limb. would you oppose or support. everybody supports an age limit even those 65-plus year olds. i have five seconds for each of you to respond to this. everybody thinks the people are too old. >> i have no problem with an age limit because you have an age limit how young you are to run for president, why not have an age limit but what about the hypocrisy of rand paul who says

two terms for a senator? he's starting term three. >> we do have an age limit, it's what the voters say. let the voters decide. >> trace: very good, kurt, leslie, thank you both. ♪ >> first up in tonight's real news roundup a federal judge has blocked part of an emergency health order by new mexico's governor that was being used to suspend gun rights for citizens in albuquerque. federal judge david your i can't said the governor's order violates the rights of citizens to protect themselves. the injunction is effective immediately and will remain in effect until the next court date on october 3rd. >> the jets quarterback aaron rodgers made his first public comments since being ruled out for the season with an achilles injury. in an instagram post rodgers said he was heart broken and thanked fans for their support adding, quoting here, the night is darkest before the dawn and i shall rise yet again. and coming up, researchers claim to have some out of this world

evidence at a ufo hearing in mexico. and, to be honest, i'm kind of skeptical about this stuff but this one kind of has my attention >> plus a rare and magical moment caught on video off the california coast. and 15 war heroes get a surprise from the students in their home town. the day's best viral videos are next. but first, a live look now at baton rouge, baton rouge louisiana tonight, and the lsu campus. the alma mater of sandra smith, america reports. we are coming right back. ♪ we're not writers, but we help you shape your financial story. ♪ we're not an airline, but our network connects global businesses across nearly 160 markets. ♪ we're not a startup, but our innovation labs use new technologies to help keep your information secure. ♪ we're not architects, but we help build stronger communities.

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>> reporter: former u.s. navy pilot ryan graves believes these remains of alleged non-human beings may be part of the truth that is not just out there but is, in fact, already known by governments, including our own. >> there's a whole fleet of them. >> reporter: the mummified bodies with elongated heads and only three fingers on each hand were discovered in peru in 2017 and presented at a mexican congressional hearing tuesday to discuss a law that, if passed, would make mexico the first country to formally acknowledge that alien life forms have visited earth. >> do you solemnly swear. >> reporter: graves also testified at a us congressional hearing in july investigating what are now termed unexplained anomalous phenomenon or uaps. >> since 2021 all uap are classified top secret or above. this level of secrecy impedes or level of understanding and 'em peed truth. >> reporter: american researcher

told the mexican congressional hearing that scientists have proven that the dna of the mummified beings is not human, and made similar claims about a different mummy discovered in 2015. that turned out to be a human child. but marsand says this is different. >> there is a clear demonstration that we are dealing with non-human specimens. >> reporter: and as robbery grows for more answers and what we really know about alleged visits to earth by aliens, nasa will weigh in tomorrow to discuss its findings from a uap study it commissioned last year. although nasa officials are already warning it is currently, quote, impossible to draw firm, scientific conclusions. trace? >> trace: jonathan thank you. we told you earlier about susan a gibson the virginia democrat running for the house of delegates who previously performed sex acts with her husband in front of an online audience and encouraged viewers to send tip money.

lawyers for gibson argues spreading the videos constitutes a violation of virginia's revenge porn law and that's where we pick up tonight's is i it legal discussion with criminal defense and trial attorney brian claypool and criminal defense tone david katz. welcome both. susan a gibson said quoting here, an illegal invasion of my privacy designed to humiliate me and my family. she said it won't intimidate me and i won't silence me. is it illegal exposing these videos. >> hey trace great to be with you. there is a virginia revenge porn law and that says if somebody distributes pornography maliciously with a to harm somebody that's a misdemeanor. so i'm arguing whoever is threatening to release that is doing so to coerce her to withdraw from the house race in virginia. and that's coercion. >> reporter: david she also

says, my political opponents and their republican allies have proven they're willing to exit a sex crime to attack me and my family because there's no line they won't cross to silence women when they speak up. sex crime? she willingly streamed sex. she had 6,000 followers and she was asking for tip money as it came in. and it was on an online platform where anybody can just sign on and watch and she's thinking she was violated. >> trace, i think as an attorney no one committed a crime against her. i don't think that this revenge porn works. i think if it were a viable violation of her rights, her attorney would have gone to court and asked for a temporary restraining order to ask for relief. this was put out by the washington post. not by fox, it was put out by the washington post on monday. she's had two or three days to go to court and ask for a temporary restraining order and as your question suggests, she has no expectation of privacy because she disseminated it.

it wasn't distributed by someone against her, she and her lawyer husband disseminated according to all the evidence. she had 5700 followers trace and on top of that it was put on publicly available sites. >> trace: you would think brian she would have given up the right to privacy when she went on the streaming line. from the huntingdon post, an attorney for gibson, daniel p watkins suggests publicity amounted to a violation of virginia law which you talked about it which makes it illegal to record a person nude or in a state of undress and to third parties without their knowledge. but though one do this, this was not a sur rip tissues thing, she did it herself. she put it up. >> look, i'm not a member of chatter bait but there is a difference between live streaming, live streaming, what does that mean, you're doing it, people are watching you live time like right now. the difference between that and then somebody surreptitiously taking the clip putting it in a portal where someone else can

look at it or people videotaping it. she didn't sign up for that. by the way i did look on chatter bend and it didn't say anythinging about the fact that she's going to have other people tape what's going on. so debra's between -- >> she can't solicit money. >> no, that's not against the law though. >> no, but saying she couldn't do that. final thoughts david. >> my final thought is if she wants the democrats to win there in virginia, and it's a very close race, it's a toss-up district. she really ought to step a i had situated. senator al franken stepped aside, a lot of women snorns said he should, katie hill stepped a sigh i think for her party and her party trying to get the majority in virginia, she really ought to step aside. better luck next time. >> trace: i think the democrats and a lot of people are saying, you know, she's fund raising off this and the money is coming in faster than it did when she was fund razzing on line in that sir rip tissues video.

brian david thank you both. >> thanks. >> thanks. >> trace: first up in tonight's viral videos a florida deputy had his patients tested by a feisty little goat that would not stop head butting him while he tried to open the gate. the deputy struggled with the animal until he finally got it locked inside the fence. why do these things always seem to happen to florida law enforcement. good question >> stunning and rare footage of dolphins swimming through glowing blue waves beside a boat. it is caused by red tight a bloom of microscopic organisms in the water that admit light when agitated. it is naturally occurring and if you haven't seen it, it is incredible to witness. >> we never got a decent home coming when the war ended. but this is really incredible today. >> we learn about it in classes but just getting to hear some firsthand experiences is definitely very eye opening. >> trace: yeah, 15 vietnam vets who graduated from oak creek high school in wisconsin more than 50 years ago got a big

surprise when more than 2,000 current students gave them a heros sendoff before their honor flight to washington, dc. and from all of us at fox news and at fox news at night, thank you for your service. and if you have a viral video to share, share it with us at trace gallagher or at fox news night on social media. coming up, if fox news at night gave you a time machine and you could do a re-do of your high school years, would you? would you go back? what would you do differently the second time around? still time to weigh in on x and instagram at trace gallagher. the nightcap crew is on deck. ♪ when it comes to your hair, ingredients matter. that's why herbal essences is packed with naturally derived plant ingredients you love, and none of the stuff you don't. our sulfate-free collections smell incredible... ♪ and leave your hair touchably soft and smooth. ♪

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. >> trace: we are back with the nightcap crew, ashley strohmier, kevin corke, matt finn, carl demaio and andrew gruel. tonight's topic high school re-do. if you could go back in time and re-do high school, would you? and if you did, what would you change? kevin corke, this is kind of your question, right? i'm just wondering, would you change anything? what would you do, and would you go back to begin with? >> it is really hard to say yes, i would go back because i really love my life. i've been incredibly blessed, traveled the world, love what i do. but if i could do it all over

again, i just might. i'd probably try to get into the air force academy. >> trace: yeah, i think it's good. listen the caveat and i was telling all the people here is it doesn't change your current life, you can go back and do high school but it doesn't necessarily change what you have now. so you don't have to give it all up, you just have to go and re-do some things and learn some other stuff. ashley strohmier your thoughts on this. >> i'm going to make it easy for you guys so you can keep moving to somebody else. i would not go back. i'm good. >> trace: you loved high school, you were good, you were done, you're moving in. >> not changing a thing. >> trace: i got you. carl demaio? >> i would have said no if the question were if you have to go back to high school today because it's just absolutely crazy and the social agenda and the political agenda would drive me nuts. but since we're going back in time, absolutely. because who i am today is because of great mentors back in my high school years, and i would love to express how much of an impact they've had on my life. and you don't know when you're young what you're getting, but

you are you look back and go wow i was really fortunate. i would like to relive it from that standpoint to say thank you. >> trace: very good point and i have something close to that. chef? >> i would do it again not because i had a delicious mullet growing up in high school. >> trace: which we think he might have. >> but as a father of four right now, i would do it to be able to appreciate my time with i a parents more, right? and to really, really, really saver that and drink it up. >> trace: yeah. it's interesting. matt finn. >> if i were to i would go back and follow some of the rules a little better. >> trace: i would do the same thing the opposite of carl demaio, i have great advice that now i think is just so valuable but back then i didn't listen to for a lot of years, really good advice that i would pass on to others and i really didn't listen to it. i would listen if i had to do it all over again here we go the nightcap poll if you could re-do it would you, x yes 46%, instagram yes 44%. lizzy mathis says, i would change my effort and try a little harder on my studies.

sure. marry, pay closer attention to current events talking 1965-69, what a time to be a teenager cheers. bob i would be more outgoing and tommy high heart cut i look like richard cunningham from happy days >> thank you for joining the nightcap and thank you for watching america's late news fox news at night. i'm trace gallagher in los angeles, we'll see you right back here in new york. i was 5...6 years of age and i knew i was going to be a vet. once alexandra called me to let me know that bank of america had approved my loan... it was important to me. we not only just provide the financing piece, we do everything that we can to surround them with the right people. all you need is a perfect, amazing team that will guide you through the right steps to be successful. and that's what bank of america was for me. >> tech: cracked windshield on your new car? bring it to safelite. my customer was enjoying her new car, when her windshield cracked. [gasp] >> customer: my car!

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♪ ♪ >> dana: hello, everyone. dana perino wanted judge jeanine pirro, chelsea gabbard, jesse watters, greg gutfeld. 5:00 in new york city. this is "the five." ♪ ♪ an escaped killer is finally back behind bars after avoiding capture for two weeks. brand-new images show police bringing danelo cavalcante into custody and authorities just releasing this new mug shot of him that comes as we learn more about how the dramatic