updated 12/7/2005 10:11:06 AM ET 2005-12-07T15:11:06

Guests: Brad Hamilton, Jack Trimarco, Joe Coffey, Joseph Curran, Jr., Dan Glickman, Shara Frase, Eugene Volokh

DAN ABRAMS, HOST:  Coming up, live from Cleveland, where police are trying to track down a journalist they say who sexually assaulted a woman for 12 hours before he strikes again. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  This bar, the last place Peter Braunstein was spotted after police say he dressed up as a fireman on Halloween, set a fire, and broke into a woman‘s apartment.  Police fear he could be here scouting out another victim. 

And Saddam Hussein lashes out in court again, calling the trial terrorism.  This, only moments after witnesses describe being tortured. 

Plus, a new study says that any movie with smoking should have an R-rating and that the DVD should have antismoking warnings.  Many state attorneys general are jumping on the bandwagon.  Oh, please, what‘s next?  R-ratings for any movie with motorcycle riding, which is dangerous, or even the eating of junk food? 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket, on day two of Saddam Hussein‘s trial, he tells the judges to go to hell and threatens not to return to court.  This, after five witnesses testified about being held prisoner, assaulted and tortured in Iraq in the 1980‘s.  They testified from behind a curtain and threw a voice modulator to conceal their identities. 

Let‘s go right to Baghdad.  NBC‘s Tom Aspell is there.  Tom, what set off Saddam this time? 

TOM ASPELL, NBC NEWS CORRESPONDENT:  Well, it was at the end of the proceedings today, Dan, when the judge was about to adjourn and said that they would reconvene in the court again tomorrow.  Saddam Hussein stood up and he said to the judge, “I might not be here tomorrow.”  He said you know what kind of conditions are these?  We haven‘t been able to change our clothes for two days.  We haven‘t had a bath.  We haven‘t even been able to smoke a cigarette and you can go to hell.  I might not be back here tomorrow.

And of course, the judge just at that point just said well we will reconvene tomorrow and that was the end of the proceedings.  But you know during the day in mark contrast to Monday‘s proceedings, Saddam Hussein was rather quiet throughout today, especially during the rather harrowing testimony from some of the witnesses who described being arrested and even being tortured at the hands of his police and security services. 

It began with a woman testifying from behind a screen.  She was identified as Witness A, and she told a rather compelling tale about being rounded up along with others in the town of Dujail in 1982 after a failed assassination attempt against Saddam Hussein.  She described how she was taken to a jail and then transferred to the notorious prison, Abu Ghraib, on the edge of Baghdad.  She said they were kept in a cell there and at one point she was tortured.

She said she was stripped naked in front of prison guards there.  Her legs were tied up and then she was beaten with electric cables.  She was also threatened with assault by the other guards there.  And then she said she was transferred to another prison near the southern town of Samarra, that‘s south of Baghdad there, and held in a prison there for the next four years.  And she described conditions in the cells and what happened to her fellow inmates, other women in the prison, including one who gave birth standing up, and the child that she gave birth to subsequently died. 

So it was a day, really, of rather harrowing testimony from all of the witnesses.  Again, in mark contrast to yesterday, very few outbursts in the courtroom.  Although of course under Iraqi law, the defendants are allowed to ask the—those giving testimony they can ask them direct questions.  And that happened several times throughout the proceedings today—Dan. 

ABRAMS:  Tom, the big question everyone keeps asking is do any of these witnesses link Saddam Hussein to their torture and their treatment?  Were they able to say I know that Saddam Hussein was behind this? 

ASPELL:  Well, in fact, one woman did—the question put to her was could she identify who did she think gave the orders for the conditions under which she was held or indeed, the treatment she received.  And she replied to that, Saddam Hussein.  He was the only one who could have ordered such treatment. 

But the short answer is no, so far in two days of testimony, none of the witnesses have been able to directly point to Saddam or any of his seven co-defendants and say, yes, I saw him doing this, or I saw him doing that.  It‘s all really that the orders must have come from on high and for that, of course, they blame Saddam directly. 

ABRAMS:  All right.  Tom Aspell, thanks a lot.  Appreciate it. 

Now, to a story that just keeps getting more bizarre.  Peter Braunstein, the only suspect in New York‘s vicious 13-hour Halloween sex assault apparently told a bar owner here in Cleveland, just miles away from where I am right now, that God sent him on a mission to destroy the—quote—“bad people”.  Braunstein apparently spent some time in this area, showing up at strip clubs and bars, assuming different names, weaving webs of lies, then telling some he‘s a movie producer, others, he‘s a retired police officer. 

He allegedly spent days at Cleveland‘s Moriarty‘s Pub and talked openly with the pub‘s owner, Morgan Cavanaugh, allegedly telling him he lives in Hollywood, that his wife died of breast cancer two years ago.  His 19-year-old daughter attends New York University. 

The last known sighting of Braunstein was on November 12 in Columbus, Ohio, though a security guard at a Columbus bus station believes he saw Braunstein getting on a bus headed for Cleveland on November 23.  I‘ve been keeping my eyes peeled while I‘m in town. 

Joining me now “New York Post” reporter Brad Hamilton, Jack Trimarco, former FBI profiler, and Joe Coffey, former NYPD homicide detective.  Thanks to all of you.  Appreciate it. 

All right, Brad, so what‘s the latest you‘re getting from your sources at the NYPD? 

BRAD HAMILTON, “NEW YORK POST” REPORTER:  Well as you said, this is a bizarre story that just keeps getting more and more bizarre. 

Unfortunately, the police really don‘t know where he is.  The information that you were just now talking about, Dan, the bar stuff, these fantasy stories that he‘s been telling people in Cleveland, that information came about a month ago. 

Since then he‘s obviously disappeared.  He did go to Columbus for one day.  The police missed him there, unfortunately.  Now he could really be anywhere.  They‘re looking for him in Cincinnati.  They‘re looking for him in Indianapolis.  You knows, he could have crossed the border into Canada. 

We know he‘s got a gun or he had a gun anyway.  He has a passport, a relatively new passport.  Obviously, he‘s got cash, because he‘s paying cash.  So he‘s a very dangerous man and police are having a hard time finding him. 

ABRAMS:  Let me read—this is according to the “New York Daily News”.  Some of the comments—we went over, actually, to Moriarty‘s Pub today and tried to talk to Morgan Cavanaugh, but you know it‘s a bar.  It doesn‘t open until later in the day.

So here‘s—here are the quotes.  He said God had given him directions that he should do something to people who aren‘t worthy of living.  That he viewed himself as some sort of instrument of God to take care of bad people.  I thought he meant whacking them.

One more.  This is Braunstein telling him that he did cocaine with an intern, part of his lie that he was a movie producer.  He revealed to me that he scored some coke in a bad neighborhood in East Cleveland.  He told me an intern who was with him got him a room, that they got high. 

Jack Trimarco, I mean you know rather than hiding out, this guy‘s going to bars and making up stories. 

JACK TRIMARCO, FORMER FBI PROFILER:  Well, Dan, you‘ve got to compare this fellow to a Roman candle.  He‘s about—his flame is about to go out, and so he‘s going to party.  I can agree with some of my colleagues that this guy is public enemy number one.  I think he realizes that if he commits another atrocious crime it‘s just going to ensure his capture that much more quickly. 

It‘s going to bring more attention to him.  He‘s going to be caught.  U.S. marshals are out there with the FBI.  NYPD is doing a great job back in the city getting more information on this guy.  “America‘s Most Wanted” is on it.  It‘s just a matter of time.  His luck is about to run out. 

ABRAMS:  One more quote from the pub owner from the “Daily News”.  He said he was feeling empty without his wife.  He was playing on my sympathies.  He came across very charming and intelligent.  He was a refined educated dude, sharp and funny.  I thought he was just a Hollywood flake. 

Joe Coffey, I mean again, the fact that this guy is not lying low, that he is going to the bars, in a city that he doesn‘t know that well, and talking up a storm, about being a Hollywood guy, and this and that, what does it tell you?

JOE COFFEY, FORMER NYPD HOMICIDE DETECTIVE:  Well the big word here is if.  I mean how do we know that this bar owner or this bartender whoever he is, is telling the truth?  He might be looking to get his face on television also.  We don‘t know if this has all been verified.  I would suspect that the NYPD has some reservations about these so-called sightings.  Question number two is if he felt it was the guy, why didn‘t he notify the authorities in Cleveland at the time it happened...

ABRAMS:  He didn‘t know at the time. 

COFFEY:  Well, a conversation took a certain period of time to encompass all that this guy purported himself to be. 

ABRAMS:  Wait.  Are your sources in the NYPD telling you they don‘t buy it?  Because what we were hearing - again from the—we had a Cleveland—we had someone from the Cleveland Police Department on the program very recently who said that the NYPD were telling him they viewed these sightings as credible and that they were convinced he had been in Cleveland based on receipts, et cetera.

HAMILTON:  That is true, Dan.  By the way, this is Brad.  That is true.  They definitely are pretty sure that this was in fact an accurate sighting.  I don‘t think there‘s any doubt in their mind they did a lot of work, an enormous amount of work to be able just to get this lead that led them in fact to Cleveland and later to Columbus. 

ABRAMS:  Yes...

(CROSSTALK)

ABRAMS:  Joe, are you hearing differently? 

COFFEY:  Well, what I‘m doing is basing it on my own experience.  You have people all over the lot here, including the people way back about a month ago who said they sighted him in a latte shop in Brooklyn at a delicatessen in Brooklyn.  I mean...

ABRAMS:  Right.  But there‘s a difference...

(CROSSTALK)

ABRAMS:  ... there‘s a difference between a sighting and a sighting where the police come forward and say that they view it as credible. 

COFFEY:  Well then we go to the next step.  Probably they view it as credible because of the fact there‘s a paper trail.  There‘s an old saying in law enforcement.  Good information makes you chant.  If you can track this guy through credit card receipts or cell phone use, more credit to you.  That might be the case here in Cleveland. 

But this guy, as one of your guests has pointed out, it‘s only a matter of time before he‘s captured.  I would venture to say his capture is imminent.  If he is running around shooting his mouth off like this, he‘s certainly going to get caught sooner or later, whether it be in Cleveland or New York or Paris. 

ABRAMS:  All right.  Let me do this.  Let me take a quick break here.  We are, by the way, still trying to get Morgan Cavanaugh on the phone.  As I say, we went by the pub a couple of times today, hadn‘t opened yet, you know there kind of early.  So we haven‘t gotten in touch with them.  They are open now.  We‘re trying to get them on the line.  Everyone is going to stick around. 

Coming up, this is not the first time Braunstein has been in trouble with the law and with women.  He‘s already on probation for stalking his ex-girlfriend.  How might that psychological profile help bring him in? 

And a new study suggests teen smoking in the movies encourages teens to smoke.  So now they want movies with smoking to be rated R.  And many state attorneys general are jumping on the bandwagon as well.  Why is this any different than a lot of other things that are bad for you that are in movies? 

Plus, the Supreme Court takes up the battle over military recruiting on campus.  Many elite schools want them to stay out because the military discriminates against gays.  And so, what, the schools should not have to treat the military like every other recruiter on campus?  That‘s what they say.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)  

ABRAMS:  I‘m here in Cleveland just miles away from a bar that New York‘s Halloween sex assault suspect, Peter Braunstein apparently spent some time at recently, telling the owner he‘s a widowed movie producer from Hollywood with a daughter at New York University.  Of course, we know that‘s a lie.  But let‘s look at what we know to be true about Braunstein‘s less than upstanding past. 

When he was a high school senior he allegedly broke into the home of a girl he had a crush on, was reportedly found by her father going through her underwear drawer.  In 2002, he was fired from “Women‘s Wear Daily” for a pattern of what they called belligerent behavior.

2003, he sent e-mails, menacing ones, to his ex-girlfriend, threatened her family, tied her to a chair and posted naked pictures of her on the Internet.  He‘s currently on probation for stalking an ex-girlfriend.  He has a number apparently of sexual fetishes, belongs to several members only pornographic Web sites. 

You know with that in mind, Joe, what does that tell us?  I mean is there anything that we can learn from knowing all this about his past? 

COFFEY:  Well, what you can learn is that the guy is an obvious psycho.  His history proves that and he‘s not going to stop what he‘s doing.  If he‘s got all these sexual fantasies and all these sexual fetishes, he‘s going to attack again, if he hasn‘t already.  I would venture to say probably before the Halloween attack he did several more.  And a lot of people don‘t come forward when they‘re in a situation like that because of embarrassment.  This guy is a sexual loose cannon, and I think because of his activity he‘s going to be caught very shortly. 

ABRAMS:  But yet Jack Trimarco, the difference is that he knew these other women that he attacked.  Does that matter?  Does that indicate that maybe he won‘t do it again unless he knows someone? 

TRIMARCO:  Well, Dan, what you have to understand is that Peter fantasized about that act probably hundreds of times before he ever acted on it.  When it got boring to him, when he didn‘t get any more excitement out of it, that‘s when he acted out.  That‘s when he bought the disguise and the gas mask and the chloroform. 

Now let‘s—remember this, guy wasn‘t planning on being identified.  He was going to go back to doing what he did every day, and that might be lining up his next victim in the comfort of his surroundings. 

ABRAMS:  Yes.

TRIMARCO:  That didn‘t happen.  He was identified by his ex saying hey he wrote this script.  I think you‘re looking...

ABRAMS:  Yes.

TRIMARCO:  ... for Peter and he went on the run.  So he went on the run and picked up and took off with cash and some things.  But everything is going to run out.  And when those things run out he‘s going to go back to what comfort he‘s had in the past and that‘s going to be probably New York...

(CROSSTALK)  

ABRAMS:  And here‘s an interesting point, is I spoke with his father about this very issue on this program and his father was saying he kind of disappeared after getting into quarrels with him.  Let‘s listen. 

(BEGIN VIDEO CLIP)

ABRAMS:  Any indication to you in recent months that he was deranged? 

ALBERTO BRAUNSTEIN, PETER BRAUNSTEIN‘S FATHER:  No, because I have not seen him in the last two years.  So I really don‘t know what happened those last two years. 

ABRAMS:  Is that because he‘s changed a lot in the last two years and sort of gone off the deep end or is there a reason for that you want to talk about?

BRAUNSTEIN:  Well, no.  I mean it‘s personal.  But on the other hand, now and then we do have quarrels and he doesn‘t react kindly to it.  He—so he disappears for a while and then comes back.

(END VIDEO CLIP)  

ABRAMS:  All right.  We‘ve got to wrap this up.  But we will—I‘ll be keeping my eyes peeled here in Cleveland.  Brad Hamilton will be staying on the story, doing great work for the “New York Post”.  And Jack Trimarco and Joe Coffey, thanks a lot to both of you for coming on the program.  Appreciate it.

COFFEY:  Thank you.

TRIMARCO:  Thank you, Dan. 

ABRAMS:  All right.  Moving on.  Should movies with smoking actors automatically get an R-rating?  A new study in the medical journal “Pediatrics” suggests just that.  It concludes that nearly 400,000 teenagers start smoking each year in part because popular movies portray smoking as glamorous, sexy, rebellious.

All right, and that when teenagers see their favorite stars smoking in PG or PG-13 movies, like Julia Roberts, in “My Best Friend‘s Wedding” they‘re more likely to pick up the habit.  According to the study done by researchers at the University of California, San Francisco, movies like “Titanic,” where Leonardo DiCaprio‘s character Jack smoked cigarettes, even older movies like “Superman II”, character Lois Lane chain-smokes Marlboro Reds, influence adolescents.  Of course, you go back older, there were a lot of movies. 

The authors recommend that the Motion Picture Association of America revamp its movie rating system to rate any movie containing smoking as R.  They say that will reduce adolescents exposure to smoking and 31 of this nation‘s state attorneys general have asked them to make sure that DVDs and home videos depicting actors smoking include antismoking messages on their label. 

Today, a response, the MPAA president, Dan Glickman, issued a formal response to state A.G.‘s claiming they would—quote—“consider placing antismoking messages in DVDs but that it was ultimately up to the distributors.”

“My Take”—look I know it‘s P.C. to ostracize smokers these days, and I should say I hate smoking.  But what‘s next?  I would assume sad movies can be psychologically damaging to kids.  Bambi and the “Wizard of Oz” have forever scarred me.  Does that mean that we need a warning or R-rating on those types of movies as well? 

And I keep hearing that overeating is a greater danger than smoking to kids.  So are we going to put on warnings when people are eating potato chips in movies?  What about characters who ride motorcycles?  Talk about dangerous. 

Joining me now is Maryland‘s attorney general, Joseph Curran, Jr., who is leading the state A.G.‘s efforts to get movie studios to cut down on exposing teenagers to smoking.  All right, Joe, what am I getting wrong here? 

JOSEPH CURRAN, JR., MARYLAND ATTORNEY GENERAL:  Well, I‘m not sure you have anything wrong.  We obviously, you and I both are concerned about the same issues.  But from the standpoint of the attorney generals, we‘ve been involved in the litigation with the tobacco company since 1996 and the 1998 settlement sent out certain parameters.

What we‘re trying to do by the letter I wrote to the studio executives several weeks ago is simply saying would you consider when there is smoking depicted in a movie, having a PSA that we will prepare at our cost and you can include in your DVDs that are sent for home distribution.  And the reason we‘re doing that is quite frankly we know that no adult really starts to smoke. 

We know from our data that the people who smoke today started when they were teenagers.  So the optimal time to discourage people or to not encourage them is when they‘re teenagers. 

ABRAMS:  But why...

(CROSSTALK)

ABRAMS:  Why is that any different, though, than, I would assume, motorcycle riding and overeating?  I mean are you going to—are you now going to send a request to the movie distributors and the companies, et cetera to say hey you know what, if you‘ve got anyone riding a motorcycle and you‘re making it seem sexy or glamorous, well we‘d like a warning on that.  And if people are eating too many potato chips in a movie, we‘d like a warning on that as well.

CURRAN:  Well no, no, we‘re not.  But I will point out that the studios do in fact, in response to concerns about animals, will say in a picture that depicts a lot of animals, that no animal was hurt in this movie, which is, you know that‘s laudable.  But we‘re not—we didn‘t ask for that, I might add.  But we‘re concerned with the issue of 400,000 Americans dying every year from a preventable disease.  We know that... 

ABRAMS:  But what about overeating? 

(CROSSTALK)

ABRAMS:  We know overeating leads to the same sort of problems.  And we keep hearing again and again that obesity is a greater problem amongst children than almost anything else in our society. 

CURRAN:  Well, smoking is a preventable—stopping to smoke prevents illness and disease.  And we do know that smoking, when used—cigarettes, when used as it‘s intended, causes illness.  It‘s that simple.  I mean I‘m not trying to shove off obesity or alcoholism or other issues.  They‘re of concern to us and I might add we deal with them, too, but...

ABRAMS:  Right.

CURRAN:  ... from the attorney general standpoint, we‘re dealing with an issue that we know can work.  We‘ve joined with the American Medical Association, the World Health Organization in saying, listen, movies set trends and that‘s good because I like to go to the movies, too.  But would they please use the PSAs when they show smoking.  It‘s not glamorous.  Smoking causes illness.  People die from smoking. 

ABRAMS:  Yes, but I just...

(CROSSTALK)

ABRAMS:  ... I guess I don‘t understand—I understand, but I don‘t understand why it‘s the movie company‘s responsibility to be putting in these PSAs.  I mean it seems to me this is the P.C. bandwagon.  Again, as I said before, I can‘t stand it when people smoke in a room with me.  I don‘t like it.  I don‘t let people smoke in my house. 

I‘m not—this is not a defense of smoking.  To me this is an issue of picking and choosing what issues.  And it seems to me that these days everyone is on the anti-smoking bandwagon.  And we know that there‘s no real lobby out there that‘s going to fight hard back.  There are a few...

(CROSSTALK)

ABRAMS:  ... smoking groups, but they‘ve got no power.

CURRAN:  It would have been very good if the people who are on the bandwagon today had been on the bandwagon, say, in the 1940‘s.  Far many more Americans would be alive today had we been doing that.  We just know that it‘s the smoking issue that‘s been of a concern to us. 

We want to stop kids from starting to smoke.  And one way to do that is the settlement we had which discourages advertisement.  An it‘s a cooperative effort.  We‘re just asking the studio executives to consider that.  They have kids. 

ABRAMS:  Yes.

CURRAN:  They have grandchildren.  They‘re as concerned as I am...

(CROSSTALK)

ABRAMS:  What do you think...

(CROSSTALK)

ABRAMS:  What do you think about the R-rating for any movie that depicts smoking?  That‘s kind of ridiculous, right? 

CURRAN:  That is something that‘s advocated by the AMA and the World Health Organization.  Pretty reliable people, people who we trust.  We all trust our doctors and our doctors are saying this is a good idea. 

ABRAMS:  Yes, so our doctors start to get this—to decide how to rate movies and then again, the next thing we‘re going to see is too many potato chips in a movie, R-rating. 

CURRAN:  No, but it‘s their doctors who have to preside at the time of 400,000 Americans who die as a result of what they know is a preventable disease.  So why don‘t we take the lead from the medical people who are telling us that there‘s certain things we can do to live better and live longer.  And one thing we do know this—don‘t invite kids to start smoking. 

ABRAMS:  Yes.

CURRAN:  You don‘t like people to smoke.  Don‘t let our teenagers start the downhill. 

ABRAMS:  Yes. 

(CROSSTALK)

ABRAMS:  And I...

(CROSSTALK)

ABRAMS:  Look...

(CROSSTALK)

ABRAMS:  Yes, don‘t get me wrong here, Mr.  Attorney General.  I‘m in no way questioning your motives here.  I think you know that you guys are doing—trying to do the right thing here.  But I just wonder whether this is just going to turn into this silly monitoring of and censorship of movies.  But look, I understand your point...

(CROSSTALK)

ABRAMS:  Final word, go ahead. 

CURRAN:  The other point is that the tobacco case really started from another standpoint.  We, in Maryland, were spending about $100 million of taxpayer dollars, Maryland taxpayer dollars, spending on the treating of illnesses caused by smoke.  And that‘s a lot of money that we‘re spending that we didn‘t have to spend. 

So the case started originally to recover Medicaid funds that Maryland and California...

ABRAMS:  Yes.

CURRAN:  ... and New York were spending, and we think we‘ve got a handle on that now with the settlement, but the next thing we did is say why can‘t we prevent this from happening down the road.  Let‘s start now. 

ABRAMS:  Yes.  Yes...

CURRAN:  I wish they had started years ago. 

ABRAMS:  Yes, I understand.  I understand.  But you know look, there are warnings on cigarette labels and there‘s parental issues.  There‘s a lot of issues here, but look, I get why you‘re doing this...

(CROSSTALK)

ABRAMS:  I know.  I appreciate you coming on the program and as I said before...

CURRAN:  Well, help us out...

(CROSSTALK)

ABRAMS:  I‘m not...

CURRAN:  Help us out...

ABRAMS:  I can‘t help you on this one.  I‘m just not going to agree that somehow the focus should be on movies.  I agree with you.  I‘m all for the PSAs.  I support PSAs that encourage kids not to smoke.  But the notion that because a movie has someone smoking in it that somehow there should be an obligation.  I understand you‘re just asking voluntarily, which I have no problem with...

(CROSSTALK)

CURRAN:  This is simply a voluntary effort...

ABRAMS:  I understand...

CURRAN:  ... and we‘ve had dialogue.  We‘ve met with Mr. Valenti. 

We‘ve met with producers...

ABRAMS:  Yes.

CURRAN:  We‘ve met with directors...

ABRAMS:  You know what...

CURRAN:  ... been very good. 

ABRAMS:  The voluntary part I have no problem with.  The problem I have is with this notion of the R-rating for the movies.  So I guess I do, in a way, support the voluntary request to movie companies to put in PSAs, but I don‘t think they should have to. 

(CROSSTALK)

ABRAMS:  We get it...

CURRAN:  Thank you very much.

ABRAMS:  Attorney General Curran, thanks a lot.  Appreciate it. 

CURRAN:  OK.  Thank you. 

ABRAMS:  Coming up, the other side.  Dan Glickman, president of the Motion Picture Association of America that rates movies is here.

And our continuing series, “Manhunt: Sex Offenders on the Loose”, our effort to find missing sex offenders before they strike.  Our search this week is in Illinois. 

Please help authorities locate Roosevelt Moore.  He‘s 53, 5‘9”, 170, convicted of rape, has failed to report his address.  If you have any information on his whereabouts, please contact the Illinois Sex Offender Registry team, 888-414-7678.

Be right back. 

(COMMERCIAL BREAK)

ABRAMS:  Coming up, more on that new study that suggests teenagers start smoking because they see it in the movies.  The authors of the study say movies with smoking in it, ought to be rated R.  Up next, we‘ve got the movie industry with us, first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE:  Sit down, Benjamin. 

UNIDENTIFIED MALE:  Mrs. Robinson, if you don‘t mind my saying so, this conversation is getting a little strange.  Now, I‘m sure that Mr.  Robinson will be here any minute now. 

UNIDENTIFIED FEMALE:  No. 

UNIDENTIFIED MALE:  What? 

UNIDENTIFIED FEMALE:  My husband will be back quite late. 

(END VIDEO CLIP)

ABRAMS:  Imagine Mrs. Robinson and “The Graduate” without a cigarette in her hand.  Hard to do, right?  According to a new study out this month in the medical journal “Pediatrics”, characters like Mrs. Robinson who smoke in movies rated PG or PG-13 are helping to cause nearly 400,000 adolescents to start smoking each year.  The authors of the study want R-ratings attached to movies where actors smoke and 31 of this country‘s state attorneys general want movie studios to attach antismoking warnings to DVDs and home videos where they‘re smoking.

I said what‘s next?  Make them warn them about overeating and motorcycle riding as well.  Joining me now Dan Glickman, president of the Motion Picture Association of America.  Mr. Glickman, thanks for coming on the program. 

You‘ve been listening our discussion.  What do you make of the suggestion that you know—look, there is no question that smoking is bad for kids.  That the goal of the ratings system is to keep kids from being impacted by sex or violence.  And they say, well, why not help them avoid smoking as well? 

DAN GLICKMAN, PRES., MOTION PICTURE ASSN. OF AMERICA:  Well first place, this is a difficult subject, because smoking is harmful to the public health.  Both of my parents had lung cancer.  I do not smoke and I do not think we ought to be encouraging or glamorizing smoking in any way whatsoever.  So we are working with the attorneys general and the creative community, the directors, the producers, screen writers, to try to reduce the amount of smoking in movies. 

But should a movie automatically be rated R because it has any kind of smoking in it?  I don‘t think so.  I think that there—if you have a World War II movie and you‘re in the foxhole, I mean it‘s natural to assume that there probably is going to be smoking going on if there are bombs flying overhead. 

And you shouldn‘t automatically rate a movie R and make it harder for kids to go see that kind of a movie.  So we ought to be working voluntarily to reduce smoking, but an automatic R just doesn‘t seem to make a lot of sense. 

ABRAMS:  What about if there‘s a lot of smoking in the movie?  How about that?

GLICKMAN:  Well, I mean smoking may be a factor in a movie‘s rating...

ABRAMS:  Really?  Is that right? 

GLICKMAN:  Well...

(CROSSTALK)

GLICKMAN:  ... it can be, particularly underage smoking, or when young people are shown to be smoking, yes...

ABRAMS:  I didn‘t know that.

GLICKMAN:  ... it can be a factor. 

ABRAMS:  OK.

GLICKMAN:  And you know we also, in our ratings, sometimes we will have descriptors with our ratings, which it may in some cases be appropriate.  We‘re looking at this issue to try to perhaps expand the kinds of issues in which you disclose what‘s in a movie so that a parent will know whether there, in some cases, might be smoking going on.  But to automatically rate a movie R because it has any kind of smoking, that‘s just...

ABRAMS:  But the problem...

GLICKMAN:  ... really not very sensible. 

ABRAMS:  The problem is once you go down that road, don‘t you have to start putting warnings or include it in the ratings systems if there are people riding motorcycles, which is very dangerous...

(CROSSTALK)

ABRAMS:  ... or as I said before, people overeating like kids eating too much potato chips or something like that?

GLICKMAN:  Well you know before I had this job I used to be secretary of agriculture and I was very much involved in the whole nutrition food guide pyramid, dietary guideline situation.  And I think you can make an argument that any kind of behavior which causes some sort of personal harm is something people ought to be warned about. 

But I think the trick here is to make sure that the warnings that parents have are reasonable ones and ones that can sensibly discourage behavior kind of like smoking.  And what we‘re trying to do is to ensure that smoking is not used in a glamorized way and not in a way that makes it cool. 

And—but at the same time, you know, creators who are writing and directing and coming up with these new ideas deserve the creative freedom to put things in that movie or in that play that have context to them.  So it‘s a balancing act...

(CROSSTALK)

GLICKMAN:  ... but should we be encouraging smoking?  The answer to that is no. 

ABRAMS:  Yes.  All right.  Look, Dan Glickman, I think I agree with you on most of these issues.  Thanks a lot for coming on the program...

GLICKMAN:  Thank you very much. 

ABRAMS:  We appreciate it.

Coming up, the Supreme Court takes up the battle over military recruiting on campus.  Get this—many elite law schools want the military recruiters out.  Why?  Because the military discriminates against gays.  And so what, the schools shouldn‘t have to treat the military like every other recruiter on campus?  Well that‘s what they say. 

And another court forces a man to pay something—I don‘t know what it is.  I‘ll tell you—all right, I‘ll tell you later when I figure it out. 

Your e-mails abramsreport@msnbc.com.  Please include your name and where you‘re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, big argument at the U.S. Supreme Court today.  The question, whether the military can recruit on campus.  Many elite law schools say not like everyone else.  That the Pentagon discriminates against gays.  So why do the schools still want to take the government money? 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

HAROLD KOH, YALE LAW SCHOOL DEAN:  Can we be forced to aid and abet discrimination against our own students?  That‘s a message that we teach the opposite of in the classroom.  And the question is as the price of this federal money, can we be forced to deliver the opposite message? 

(END VIDEO CLIP)

ABRAMS:  The dean of Yale Law School, Harold Koh, speaking outside the U.S. Supreme Court.  Inside the court heard arguments on that point.  If a law school refuses to provide the military with the same recruiting opportunities as other recruiters, can federal funds be withheld from universities?  A group of university law schools say the military‘s don‘t ask, don‘t tell policy on gays is discrimination and that justifies treating the military differently as a group that discriminates. 

And a lower court agreed with the law schools.  Now the wire services say a majority of the court seemed to be backing the government over the law schools today.  But who knows?  “My Take”—why shouldn‘t the government be allowed to say no to funding for schools who exclude the same federal government providing the funds?  The lower court ruled the schools should be able to make a statement that they don‘t want to associate with organizations that discriminate on their campus. 

And so the solution is to prevent recruiters from speaking on campus?  And this is not just any organization, it‘s an organization whose money they want.  I love the irony.  The solution to their First Amendment problem is to prevent students from hearing what the military has to say.  The recruiters want a room, not a soapbox. 

Anyone can protest outside.  The military just wants to be treated like every other employer and a federal law says they should get it.  To give them equal access doesn‘t mean the law school is endorsing them.  Look, the military‘s don‘t ask, don‘t tell policy doesn‘t make any sense to me.  But that shouldn‘t give law schools an excuse to circumvent this federal law. 

Shara Frase is an attorney with the firm Heller Ehrman that worked with Josh Rosencrantz, who argued for the schools in the high court today.  Eugene Volokh is a constitutional law professor at UCLA.  Thanks to both of you for coming on the program.

All right, Shara, what am I getting wrong here? 

SHARA FRASE, HELPED PREPARE LAW SCHOOL‘S CASE:  Well the—today‘s soapbox is the interview room.  That‘s where the military says to the law school students we want you, Uncle Sam wants you, but not if you‘re gay.  And that‘s the kind of discrimination that‘s happening on our client‘s campuses, that they just don‘t want to aid and abet.  And the law schools feel that by assisting the government and the military to recruit on campus, they are helping the military discriminate against their own students. 

ABRAMS:  Is there any difference between the military, meaning the U.S. government who‘s providing funds to the schools, and any other organization, meaning—you‘re saying, well, look, we don‘t allow any organizations that discriminate.  Fine.  And the military is saying, fine, don‘t let us on campus.  Just don‘t ask for federal funds then. 

FRASE:  Well you know Congress can attach all sorts of strings to money.  They have for a long time and there‘s no problem with that.  But they still have to abide by the Constitution and the Bill of Rights.  And the First Amendment says you know you can‘t restrict a group‘s effort to assist causes that they want to assist or don‘t assist causes that they don‘t want to assist.  And by attaching strings to money to force that kind of result, it‘s the same thing as the bully in the schoolyard you know saying we‘ll take your lunch money if you don‘t do this.  It‘s not really a real choice when it‘s the federal government holding that over your head.

ABRAMS:  All right.  Professor Volokh, let me read to you from what the law schools say in their brief.

As much as the government tries to portray its position as a plea for equal treatment, it‘s nothing of the sort.  It‘s a demand for exceptional treatment, a demand to be the only discriminatory employer that a law school will assist even as the recruiters discriminate against the school‘s own students.

What do you make of that? 

EUGENE VOLOKH, UCLA LAW PROFESSOR:  Well, actually, on that point I think the law schools are right, that this law does give the military favored treatment.  They get essentially an exemption from the anti-discrimination rules that all of the law schools impose, assuming that many law schools impose on all other employers.  They‘re asking for special treatment, for better treatment because of the military. 

It‘s just that under the First Amendment government is entitled to do this, because the government is essentially renting a room.  It‘s renting access.  It‘s saying, look, we‘re going to pay you a lot of money both directly and through various subsidies to your students, and in exchange for paying you a tremendous amount of money, we want to rent a room.  We want a place where we can actually take some—derive some advantage from this education that is being provided in large part through with federal money. 

And that kind of rental is a kind of string that‘s attached to conditions that‘s perfectly permissible.  The government can say look, we‘re going to rent it on a one-time basis.  We‘re going to offer you $20,000 to rent a room.  If you don‘t like it, fine, but we won‘t pay you the 20,000.  Or they can do it on a more massive base and say look, we‘re going to offer you tens of millions of dollars, and in exchange, one of the things that we‘d like from you is access to your property.

That‘s a normal kind of commercial transaction that is quite permissible.  And if the school wants to disassociate itself from the government, it‘s perfectly free...

ABRAMS:  Yes.

VOLOKH:  ... to put up signs saying we don‘t approve of this, even don‘t go there.  Don‘t...

(CROSSTALK)

FRASE:  ... under that theory we all associate with the government.  I mean you know they could say that about anyone who takes money from the government.

(CROSSTALK)

FRASE:  Just because they‘re funding...

(CROSSTALK)

FRASE:  ... on the other side of campus doesn‘t mean they have a right to squelch protest that‘s coming from another corner of the campus.

VOLOKH:  But they‘re not squelching protest.  The school is perfectly free to protest.  It‘s perfectly free to organize demonstrations.  It‘s perfectly free to put up signs saying...

FRASE:  Actually...

VOLOKH:  ... we don‘t want you...

FRASE:  ... that‘s not true.  Hey actually...

(CROSSTALK)

FRASE:  ... the government—the military doesn‘t like protests if it...

(CROSSTALK)

VOLOKH:  Well, nobody likes...

ABRAMS:  Wait.  Wait...

(CROSSTALK)

VOLOKH:  The federal government specifically said that it‘s free to...

ABRAMS:  Right.  Whether they like protests or they don‘t like protests doesn‘t go to the issue that the Supreme Court was hearing today.  I mean...

FRASE:  Actually, it goes right to the issue. 

(CROSSTALK)

FRASE:  The Supreme Court is asking can the law schools engage in the kind of speech that they want to engage in, which is not anti-military, but anti-discrimination...

ABRAMS:  Right.

FRASE:  It might be putting up a poster...

(CROSSTALK)

ABRAMS:  All right.

(CROSSTALK)

ABRAMS:  But that‘s sort of one of...

(CROSSTALK)

ABRAMS:  Right.  I mean that‘s sort one of these—in effect, a protest argument.  What we‘re saying is, and you don‘t dispute this, is the idea that if people want to protest outside, particularly at these elite law schools, I promise you no one is going to stop them.  The question is whether they can get a room, a room, right?  I mean...

FRASE:  Well, law schools have nondiscrimination as a core moral value.  And if offering a room means the military can come into their private community and use that room as an opportunity to discriminate against their students, that‘s the same thing as, you know, engaging in the very act...

ABRAMS:  So are you saying that they can‘t...

FRASE:  ... of discrimination against their own students. 

ABRAMS:  So they can‘t—wait, wait.  So they can‘t have any requirements—the U.S. government can never say anything, have any say, have any input into how the money is used when they are giving away money. 

FRASE:  No, they can and...

ABRAMS:  Oh they can?

FRASE:  ... the spending clause allows the government to attach strings to money. 

ABRAMS:  Exactly.

FRASE:  You can‘t force someone to speak a message they don‘t want to speak.

ABRAMS:  They‘re not speaking anything. 

FRASE:  Or to support the military‘s message, which is once again Uncle Sam wants you, but not if you‘re gay.  That message is...

ABRAMS:  Well...

FRASE:  ... offensive to the very core of what law schools are about.  They‘re not—they don‘t edit employers in a lot of different ways, but they do limit it on this one metric, which is we will not help you discriminate against our own students.  We will not help anyone discriminate against our own students, no exceptions.  They‘ve drawn that line and offering physical space in a private campus is the same thing as someone coming into your home and saying, listen, I need five minutes...

ABRAMS:  Except...

FRASE:  ... in your living room...

ABRAMS:  ... I‘m not asking when they come into my home...

FRASE:  ... to talk to your neighbors about discrimination. 

ABRAMS:  I‘m not asking for federal—wait, I‘m not asking for federal funds when I invite them into my home.  Go ahead Professor...

FRASE:  You‘re not?  What are Social Security benefits?  What are tax breaks...

ABRAMS:  That‘s right.  And the bottom line is that the notion that the government is going to be coming into my home to be recruiting is very different from a public ground, which is a university...

FRASE:  Oh no, no, no...

(CROSSTALK)

FRASE:  ... our clients include private, private freestanding educational institutions...

(CROSSTALK)

FRASE:  ... that have just as much as a right as the Boy Scouts did...

VOLOKH:  ... universities that are getting government money...

ABRAMS:  Wait.  Wait...

(CROSSTALK)

ABRAMS:  Professor...

(CROSSTALK)

ABRAMS:  I got to let - Professor Volokh, go ahead.  Last word on this. 

VOLOKH:  Yes, so the universities are being told, look, you‘re free to say whatever you want to say.  But if you want the money we‘re paying for you, essentially to you—essentially as rent, then you‘ve got to give us the space that we want.  Now, it‘s true that the schools would like to exclude this, would like to send a message by excluding the recruiters. 

But lots of schools and people want to send a message by not paying their taxes.  They may want to send a message by violating all sorts of laws.  They may want to send a message by killing a member of an endangered species. 

ABRAMS:  Yes.

VOLOKH:  The First Amendment doesn‘t give us the right to just send a message by violating general laws...

ABRAMS:  All right, I‘ve got to go...

VOLOKH:  ... or in this kind of situation send a message by refusing to do what the government is paying us to do. 

ABRAMS:  I‘ve got to go.  It‘s a dumb policy, this don‘t ask, don‘t tell, but I don‘t think...

FRASE:  Amen.

ABRAMS:  All right, Shara Frase, Eugene Volokh, thanks a lot.

FRASE:  Thank you.

ABRAMS:  Coming up...

VOLOKH:  Thank you.

ABRAMS:  ... former U.S. Attorney General Ramsey Clark representing Saddam Hussein in court.  Question—should a former top American official be representing Saddam?  Your e-mails about it are up next. 

(COMMERCIAL BREAK)

ABRAMS:  I‘ve had my say, now it‘s time for “Your Rebuttal”.  Yesterday, we asked whether former U.S. Attorney General Ramsey Clark should be defending Saddam Hussein, whether a former attorney general should have an additional obligation to his country or maybe could his defending Saddam add credibility to the proceeding?

Alice Vantrease, “Ramsey Clark is more to be pitied than to be censured.  His current behavior will negate any legacy he may have earned as a former U.S. attorney general.”

Pat from Florida, “I believe it‘s a disgrace to our country to have its former attorney general help defend Hussein.  It doesn‘t add legitimacy to his case.  He will turn it around when he gets convicted and blame the American government for placing him there to gain conviction.”

And on Friday in my “Closing Argument” I said the death penalty should be the punishment of last resort, that I support it, that the prosecutors use it too often and that DNA has proved that a good number of people on death row are innocent.

A frequent guest on this program, D.A. Joshua Marquis from Oregon writes, “There are very few innocent people on death row.  Judge Red Rackoff who declared the federal death penalty unconstitutional because of what he called the risk of executing innocents has conceding that number is not 130, but 25.  There is extensive academic as well as anecdotal evidence that using capital punishment actually deters and prevents 17 murders per execution.”   

Joshua, I don‘t care if it‘s 25 or 130.  It‘s still a lot of innocent people and while I support the death penalty, you will never convince me that it is an effective deterrent.  The notion that many killers are going to think twice about a crime because they may get the death penalty, 17 of them for every one, instead of life in prison?  Come on. 

Steven Leslie in Florida doesn‘t like the debate we had over whether a jury should have to be unanimous when recommending death. 

“Having a point counterpoint on this subject shows a lack of sensitivity and respect for all mothers who‘ve had children raped, tortured or murdered.”  Please, come on Steven.  We can‘t even discuss or debate a crucial issue in our society?  Come on. 

Your e-mails abramsreport—one word -- @msnbc.com.  We go through them at the end of the show.  Be right back. 

(COMMERCIAL BREAK)

ABRAMS:  That does it for us tonight live from Cleveland, Ohio. 

Coming up next, “HARDBALL” with Chris Matthews.  See you tomorrow.

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