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Smerconish

Officer Derek Chauvin Charged with Murder in the Third Degree and Manslaughter Over the Death of George Floyd. The Psychology of Riots. Have Racial Tensions Raised Pressure on Biden to Pick VP of Color? Aired 9-10a ET

Aired May 30, 2020 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(COMMERCIAL BREAK)

MICHAEL SMERCONISH, CNN HOST, SMERCONISH: Murder in the third degree and manslaughter. I'm Michael Smerconish in Philadelphia. The charges were filed yesterday against police officer Derek Chauvin in connection with the death of George Floyd in Minneapolis on Monday. That video that we've all seen seems like the sort of textbook example of criminal conduct that we lawyers studied in law school. If a picture is worth a thousand words, then eight minutes of video must be worth one word -- guilty.

The complaint filed yesterday is as difficult to read as the video is to watch. Quote, "BWC," that's body-worn video camera, "shows Mr. Floyd continue to move and breathe. At 8:24:24, Mr. Floyd stopped moving. At 8:25:31, the video appears to show Mr. Floyd ceasing to breathe or speak. Lane said, 'Want to roll him on his side.' Kueng checked Mr. Floyd's right wrist for a pulse and said, 'I couldn't find one.' None of the officers moved from their positions. At 8:27:24, the defendant removed his knee from Mr. Floyd's neck."

That suggests that Officer Chauvin's knee was left on Floyd's neck long after he had stopped breathing. Quote, "The defendant had his knee on Mr. Floyd's neck for eight minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non- responsive."

The resulting outrage has tested and strained relations and bent the boundaries of lawlessness for the past four nights, but when the smoke clears in Minneapolis, the community will face another potentially more difficult test and that is providing those charged with a fair trial, an opportunity to present their facts while maintaining a presumption of innocence. That's going to be extremely difficult.

It's hard to fathom what that defense might entail. When death occurs from multiple causes, the prosecution must prove beyond a reasonable doubt to all jurors that, but for the criminal act, the death would not have occurred. That can be darn hard in some cases. In this case, preliminary results from an autopsy indicated that Mr. Floyd did not die from suffocation or strangulation, prosecutors wrote, and that, quote, "The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions, any potential intoxicants in his system contributed to his death." The affidavit said that Mr. Floyd began complaining that he could not breathe before he was pinned down. Many in the public, members of the media, some Minnesota public officials have used the word murdered to describe what occurred. At the press conference on Thursday, John Harrington, the Commissioner of the Minnesota Department of Public Safety, said this.

(BEGIN VIDEO CLIP)

JOHN HARRINGTON, MINNESOTA DEPARTMENT OF PUBLIC SAFETY COMMISSIONER: I will tell you that the vast majority of the great people of Minnesota and the great people of Minneapolis who are -- who are still having their guts ripped out about the Lloyd murder -- and we'll call it a murder. That's what it looked like to me. I don't want to prejudice this from a criminal perspective, but I'm just calling it what I see it.

(END VIDEO CLIP)

SMERCONISH: Similarly, the mayor of Atlanta, Keisha Lance Bottoms, last night said this.

(BEGIN VIDEO CLIP)

KEISHA LANCE BOTTOMS, (D) MAYOR OF ATLANTA: I am a mother to four black children in America, one of whom is 18 years old and when I saw the murder of George Floyd, I hurt like a mother would hurt.

(END VIDEO CLIP)

SMERCONISH: They both may be right. It looks the same way to me, but that's not to be decided with finality today. This officer and any others charged are entitled to a fair trial, including their version of the facts and that will be the toughest test of our system. I want to know what you think. Go to my website this hour at Smerconish.com. Answer today's survey question. If you were a juror, would you presume Derek Chauvin to be innocent?

Joining me now to discuss is Charles Ramsey. He co-chaired President Obama's Task Force on 21st century policing and previously was the chief of police here in Philadelphia. And Tom Fuentes who spent 30 years at the FBI, including five as assistant director, was himself a police officer for six years before that. He's now a vice president at Morris and McDaniel, a company that conducts police applicant testing.

Tom, I'll begin with you. They're entitled to their day in court, as I've just explained, but it's hard to envision any exculpatory facts. Do you agree?

[09:05:05] TOM FUENTES, FORMER FBI ASSISTANT DIRECTOR: I completely agree and as I told you yesterday, Michael, on the radio show, I thought this officer should have been arrested the very first day because of the fact that you have a nine minute video of him sitting on his back with one of his knees at his neck. So yes, we can fine- tune the autopsies later and the serology reports will come back and whether or not the officer knew Floyd before this incident. All of that isn't going to be the same as the strength of the evidence for once that we have of a video.

And as I've mentioned before, many of these police altercations that result in the death of a subject we don't know because the subject is running away, the officer fires a gun and shoots them in the back or they're wrestling or the subject is not under control. In this case, he's completely under control and whatever he had done leading to the arrest, the incident should be over. That subject, Floyd should have been transported to the police department immediately.

SMERCONISH: Chief, the facts seem so bad on the surface that not even the usual union support has been a part of this case so far.

CHARLES RAMSEY, FORMER PHILADELPHIA POLICE COMMISSIONER: Yes. I agree. I read a letter earlier from the National FOP again condemning the actions of the officer in the Floyd case. I mean, I'm not a lawyer so the specific charge I can't really comment on, but in my mind, without question, the action of the officers contributed to the death of Mr. Floyd. No question about it in my mind and certainly the one officer with his knee on his neck -- with his knee on his neck, but two other officers were also pinning him down and in most police training, positional asphyxia is something that is covered on a regular basis.

If you have a person in a prone position and you're applying pressure to their chest or other areas of their body where breathing becomes an issue, you cannot do that for an extended period of time. Now we're talking about almost eight minutes or better, including two and a half minutes where the individual had no pulse. I mean, again, I'm not a lawyer, but if that's not murder, I don't know what is.

SMERCONISH: Tom Fuentes, you wonder what changed in the eyes of the prosecution between that presser on Thursday and then the bringing of the charges yesterday.

FUENTES: Right. I don't know because the problem I have with this is by not arresting him the very first day and now following three or four nights of severe rioting, the arrest looks like they might be trying to placate the mob and I hope that doesn't send a signal to others around the country anytime there's an incident involving the police officer, especially a white police officer, have a riot, then you'll get what you want, you'll get the officer arrested and that should be not allowed either. That should not be the precedent that gets set in this case that they only made the arrest now just to stop the rioting.

SMERCONISH: Chief Ramsey, where would we be in the absence of video in either this case or the Ahmaud Arbery case?

RAMSEY: That officer probably would have been relieved of duty in the sense of being given an administrative assignment, still with pay, but he would not been fired, more than likely, without a video because you wouldn't have had he video evidence, internal affairs would be investigating and the odds of that being a sustained case that would lead to termination are, quite frankly, pretty remote. So had it not been for video, and thank God it had video, this would have a different outcome. This would be one where the officer's word against the witnesses there and it probably would have weighed heavily on the side of the officer.

SMERCONISH: Tom Fuentes, state charges were brought yesterday against the one officer. What's the significance now of federal involvement? It used to mean a great deal when the feds rolled into town to conduct their own investigation. I wonder if some of that sting is now missing, but I'd love to hear your perspective.

FUENTES: Well, an example would be back in 1991, March 3rd, Rodney King was beaten by several police officers, Los Angeles police officers. A year later, the state trial occurred and they were all found not guilty. However, a year after that, the federal civil rights, based on the evidence gathered by the FBI, the civil rights trial was done and two of those officers got sent to federal prison.

So there is a likelihood that no matter what happens here, if they get convicted and get sent to prison on the state charges, that's one thing, but the civil rights charges -- and that's not double jeopardy, it's a complete separate charge for violating Mr. Floyd's rights and that could still be an outcome later to have that trial occur and still have the officers go to prison.

[09:10:00] SMERCONISH: And finally, Chief, I'm glad that Tom brings up the Rodney King case because I've reacquainted myself with those facts and I know that many will say, look, in the end, it was a white jury in Simi Valley and they were never going to convict those cops. There were 12 or 13 seconds that we didn't initially see that later the jury got to see. I can't imagine that there's anything more that people will need to know sitting in judgment beyond the nine or so minutes that exists that we've already seen in this case.

RAMSEY: Well, first of all, you never know what a jury's going to do. You know that full well, but even more importantly, one of the points that Tom made, in the Rodney King case, it did result in action from the Civil Rights Division of the Department of Justice, but the view of the Department of Justice today is not the same as it was in the early '90s, quite frankly. You know, in the minds of a lot of people, the J in Department of Justice no longer stands for justice for all.

I mean, just look what's going on in our country right now as it relates to the Department of Justice and so you don't have that mechanism that we had in the '90s and before where people got a sense of calm because they felt like they were going to get a fair shake. My concern is that that no longer applies in the minds' of many people which means that we've got a problem that's going to continue for quite a period of time.

SMERCONISH: Chief Ramsey, Tom Fuentes, thank you both for being here.

FUENTES: Thank you, Michael.

RAMSEY: Thank you.

SMERCONISH: Now, why do protests calling for justice sometimes lead to looting and violence? Joining me now to discuss is Clifford Stott, professor of social psychology at Keele University in the U.K.. He co- authored this piece, "The Psychology of Riots and Why it's Never Just Mindless Violence." Professor, why didn't yesterday's charges against the officer allay last night's violence?

CLIFFORD STOTT, PROFESSOR OF SOCIAL PSYCHOLOGY, KEELE UNIVERSITY: Well, I think that they're not just about the single incident involving one officer. For a start, we know that there was a whole group of officers there and the perception among people of the illegitimacy of that moment isn't just about the action of one individual, but the extent to which that action encapsulates a broader problem of policing in the U.S. across the whole of the USA. So this is, in a sense, symbolic of a wider, more deeply rooted structural problem in how communities in the U.S. are policed on an everyday basis across the whole country.

SMERCONISH: You have written, "When people riot, their collective behavior is never mindless. It may often be criminal, but it's structured and coherent with meaning and conscious intent." It's hard to glean that from what we're seeing on our television screens right now. Wherein lies the structure of that behavior?

STOTT: Well, unfortunately whenever we look at these events in historical analysis, whenever one looks at a riot, one always finds that what people do is very structured and meaningful. The idea of random and chaotic violence just doesn't stack up. However, we try to leverage that perception on top of our TV screens. When we look beyond our TV screens into the detailed reality of what happens on the ground, that analysis just does not make any sense from a scientific point of view.

So within the scientific community, we've had to reject that notion of the crowd and its psychology because it can't explain what people do and why they do it and my mission through the psychology and through the science is to build a better understanding of how we make sense of these crowd events so that we can prevent them. The real mission here is to stop rioting, not to pretend that we are trying to do that through moralizing about it, but getting to grips with the underlying causes of why it happens over and over and over again.

Let's bear in mind this is not the first time in recent history that waves of riots have taken across the -- taken off across the U.S. and indeed we're seeing waves of rioting around the world on a regular basis and we have to start to address the broader issues around which those riots come about and the idea of chaotic and mindless violence will never help us to do that.

SMERCONISH: Professor Stott, if you were to get a telephone call today from an American mayor, an American governor seeking your counsel given your expertise on the psychology of rioting and they were looking for a lesson that they could apply today so as to prevent violence tonight, what would you say to them?

STOTT: Well, the first thing I'd do is to point them in the direction of the chief of police in Atlanta who had the courage to come out and negotiate with people in the crowd and speak to them about their genuine, underlying concerns, to recognize that dialogue is a key component to de-escalation in these circumstances.

[09:15:01] Throwing militarized policing into the mix is really just a recipe for escalation and that the solutions to this are through dialogue and negotiation. We should also recognize that this is not a problem that is simply going to be solved on the ground in the context of a crowd event. This is about a broader, structural problem in relationships of policing communities across the U.S. and it's that that has to be addressed if one wants to move closer to an environment where we're not going to see this kind of violence crop up again.

SMERCONISH: I'm limited on time, but if you could give me the 30- second answer as to why sometimes it leads to looting and sometimes it does not, you'd say what?

STOTT: Looting is an expression of power and if I can draw on the cliched terminology of Martin Luther King, "Riots are the language of the voice of the unheard." We have to recognize that these are expressions of power in a context where people perceive their relationship to the authority has become illegitimate and unsustainable and the reaction to that is the consequences of what we're seeing on the streets of the USA right now.

SMERCONISH: Professor Stott, thank you so much for your time.

STOTT: Thank you.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my website throughout the course of the program. I will read some responses in real time. Catherine, what do you have? I think from Facebook, "We tried peaceful protesting. We took a knee. They didn't like that either." Andrea, it does make you reevaluate, does it not? Colin Kaepernick and what he was trying to say with that protest. I get it.

Here's another one also from Facebook I think, maybe it's from Twitter, "Smerconish, your question is posed wrong as you know, everyone must be presumed innocent until proven guilty. Need to reframe it." I don't know that it's posed wrong, Ron. What I'm trying to ask is whether you, sir, would be viewing this defendant with this universal condemnation and usage of the word "murderer" to describe his actions, put yourself in the jury box being one of the 12 with an obligation to provide him a presumption of innocence.

By the way, don't mistake my legal observation for sympathy for the defendant because it's not that. I'm just now standing back from the sidelines and I'm wondering what's to come in the judicial process and it's going to be a tall order. Make sure you're voting at the website today at Smerconish.com on today's survey question which asks the following, if you were a juror, would you presume Derek Chauvin to be innocent?

Up ahead, with this week's executive order, the president has officially declared war on twitter. Now he's demanding, "Revoke 230." What exactly does that mean? I'll speak to the man who literally wrote a whole book explaining it.

And by promising to pick a woman as his running mate, Joe Biden immediately narrowed the field, but with racial tensions running so high, will he now almost certainly be choosing a woman of color? Here's one of the names in contention.

(BEGIN VIDEO CLIP)

LANCE BOTTOMS: I wear this each and every day and I pray over my children each and every day. So what I see happening on the streets of Atlanta is not Atlanta. This is not a protest. This is not in the spirit of Martin Luther King Jr.. This is chaos.

(END VIDEO CLIP)

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[09:20:00]

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SMERCONISH: Are recent events pushing Joe Biden to select a running mate who is a person of color? You'll recall he previously pledged that he would choose a female running mate and that narrowed the field, but recent events have ratcheted up racial tensions, the killings of Ahmaud Arbery in Georgia, George Floyd in Minnesota, the fraught encounter in New York's Central Park when a white woman called the cops on a black bird watcher and the candidate himself who told a radio host, "If you have a problem figuring out if you're for me or Trump, then you ain't black," and then wound up apologizing.

Does all that plus COVID's disproportionate toll on the African- American community increase the pressure for Joe Biden to choose among those women who are of color?

Joining me now to discuss is Bakari Sellers, former South Carolina State Representative, author of a terrific new memoir called "My Vanishing Country." Bakari, did Amy Klobuchar and Elizabeth Warren stock just take a nosedive?

BAKARI SELLERS, (D) FORMER SOUTH CAROLINA STATE REP./AUTHOR, "MY VANISHING COUNTRY": Well, Amy Klobuchar stock definitely did and it not -- it not only took a nosedive after the incidents that are going on right now in Minnesota, but throughout the primary season. I displayed my outrage at the neglect that Amy Klobuchar played to or paid to people of color in that primary cycle. It's as if she didn't even try and that lack of effort, it's very difficult to make up those relationships in a two to three month period and so yes, she's going to struggle.

I think Elizabeth Warren's struggles are just totally different. I think that you're not going to have a 78-year-old nominee and a 70- year-old vice president also knowing, in the back of your mind, that Charlie Baker is going to be able to replace her probably with himself and so I just think that eliminates Elizabeth Warren and so I truly believe that with everything that you outlined, Michael -- and you forgot the name Breonna Taylor, under no fault of your own.

I mean, we just had so much trauma in terms of people of color over the past few months, past few years, past few decades in this country that we have to recall that I believe it's now time for a female of color to give these individuals who are protesting a voice.

[09:25:01] SMERCONISH: OK. And I didn't mean -- I was using the two of them as an example, but you have answered my question. You think that Joe Biden is now -- what would the word be? Obligated to make it not only a female, but a female of color.

SELLERS: I don't even -- I don't know if the word is obligated. I do know that there would be a sense of letdown if it's not. I mean, look, you know, my mom and her friends they're going to vote for Joe Biden if it's, you know, Amy Klobuchar, if it's whomever, Elizabeth Warren, but they're not going to be activated.

They're not going to stand up in their churches every Sunday encouraging and making sure. They're not going to be filling up the church vans with gas. They're not going to be talking to their big wheels (ph) club and their AKA sorority sisters about making sure that they're coming out, that their nephews are coming out, that they pick up their cousin from the gas station and bring them out.

And so it's one thing to just vote for someone, it's another thing to activate and we have to activate that base and I think that the only way you do that is with a a woman of color. For far too long, you know, the Democratic Party has only said thank you to black women. We've never really empowered black women.

SMERCONISH: When I talked about this with my radio audience this week, the response from many was to say that it all sets a dangerous precedent whether it's saying in advance I'll select a female or I'll select a person of color, that the mission should be one of picking someone who on day one is best equipped to step in, God forbid they need to do that.

SELLERS: I don't think those things are mutually exclusive. I think Susan Rice can step in day one, God forbid they need to do that. I think Kamala Harris can step in, God forbid she needs to do that. What we're saying is that, you know, black people, black females in particular can step in and lead on day one, but there's also something else that we need on this ticket. We need that sense of excitement.

And what we're seeing in the streets is not just some, you know, individuals who are rabid going around protesting and looting. What we're actually seeing is pain and trauma that goes back decades. This is not just about George Floyd. This is not just about Ahmaud Arbery. This is about systemic injustice and racism in this country and now we have to make sure that we have somebody who can funnel that energy to the voting booth.

SMERCONISH: Bakari, it used to be a badge of honor, an attribute when you ran for office, if you had a history in law enforcement. Is it an attribute today that Kamala Harris was a prosecutor? Is it an attribute today that Val Demings was a police chief?

SELLERS: You know, I think that you have to look at their records and not only their records and where they were, but where they are now. You know, you had Kamala Harris, even Amy Klobuchar, even Val Demings who were police chiefs and in law enforcement and prosecutors, in Kamala's case during the time in which you had an era of being tough on crime. Many of those policies are outdated now. Much of that rhetoric is no longer acceptable and thank God because it created a mass prison industrial complex.

And so what we have to do is see people where they were and where they are, the evolution thereof and yes, I think especially talking about Kamala Harris, the folk on Twitter are probably 50/50 on Kamala, but in the streets, the young people who I talk to, the individuals who I go to church with, who I work with, they're ready and excited to possibly vote for Kamala Harris as a vice president. So I don't think that would be a strike against her, but it is something she has to articulate and overcome.

SMERCONISH: Bakari Sellers, thanks. The memoir is great by the way. I know you hired a model for the front jacket of the book, right?

SELLERS: I just wanted -- I wanted to find the most handsome kid I ...

SMERCONISH: Put that -- put that up on the screen, Catherine. Do you have that handy? Hurry up and put up -- put up his book jacket. I know he hired some cute kid to pose on the cover of that book to sell copies. Look at that.

SELLERS: And now I look like a young Marvin Gaye. I know. We've come a long way.

SMERCONISH: What's going on? All right. Let's see what you're all saying on my Smerconish ...

SELLERS: I know. What's going on? (ph)

SMERCONISH: See ya. Smerconish Twitter and Facebook pages. From Twitter, what do we have? "Smerconish, more liberal stupidity. Don't look for qualifications, just focus on gender." Hey, Freedom, I asked the question. I mean, Joe made a decision. He announced it on March 15 that it would be a female.

I think it sets a bad precedent and I've said so because now there's sort of -- it's engrained in the process that it's OK to say to a candidate will you pledge in advance for the Supreme Court, for vice president, for your cabinet. I don't like setting that precedent, but there's a practical question here, right? You'd be ignorant to ignore the context in which I'm asking it, which is lot of stuff going on right now that is ratcheting up the pressure on him to select a person of color.

I want to make sure that you're answering the survey question at Smerconish.com. If you were a juror, would you presume Derek Chauvin to be innocent?

[09:30:00]

Up ahead, the president says that he wants to revoke 230. What exactly is 230? I'm going to chat with the man who literally wrote a book that explains it. And fingers crossed if the weather cooperates today will usher in a new era of space travel perhaps for regular folks. I'll discuss it with a former astronaut.

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SMERCONISH: The day after Memorial Day the president ramped up his war with Twitter. But is a case of be careful what you wish for?

After he tweeted 51,000 times, this week Twitter began fact-checking and hiding some of his tweets. The president began railing on Twitter -- quote -- "REVOKE 230!" He's referring to Section 230 of the 1996 law known as the Communications Decency Act, so what is it?

Well, fortunately, my next guest literally wrote the book on the subject. "The Twenty-Six Words That Created the Internet" is title of his book. Joining me now is its author, Jeff Kosseff. He's an assistant professor of cybersecurity law at the United States Naval Academy but is speaking here on his own behalf and not in any official capacity.

[09:35:04]

Professor, I want to put on the screen, the 26 words, here they are.

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

In lay terms, what does that mean?

JEFF KOSSEFF, AUTHOR, "THE TWENTY-SIX WORDS THAT CREATED THE INTERNET": So, what those words mean is basically that any online platform, whether it's social media or Web site, Wikipedia, Yelp, they are responsible for any content that they create. But unless one of the few limited exceptions applies, they are not responsible for any posts, any video, any images that their users post on the site.

SMERCONISH: If I -- this may be a weak analogy, but I'm going to try. If I defame you via telephone, you don't get to hold the phone company responsible. If I defame you via newspaper, you can hold the newspaper responsible.

In my weak hypothetical or analogy, Twitter is regarded as the phone line at this point. Is that fair?

KOSSEFF: Kind of. It basically created a third kind of hybrid category that goes back to the -- an analogy that's probably better used for bookstores and newsstands that distribute large amounts of third party content to other people and don't necessarily review all of it. So it's kind of somewhere in between there.

But, yes, it basically says that under Section 230, a social media site will not be liable for the content that you provide. But, yes, if you wrote a letter to the editor and that was posted in the print edition of a newspaper then there would be potential liability for the newspaper.

SMERCONISH: What does the future look like without 230? What if 230 is revoked?

KOSSEFF: So, we don't know for sure because Section 230 was passed in 1996 and that was really the beginning of the modern internet.

So there are two primary options. One would be that sites would be much more restrictive as to how much user content they allow. I mean, our current internet is really built on an ecosystem of vast amount of user content. If sites are responsible legally for what their users post there is a chance that they might be more restrictive or just start providing all of their own content that they can control.

The other potential option and this comes from some cases right before 230 was passed is that the sites actually might reduce their moderation because there were some suggestions in case law that if a site actually does more moderation it can actually increase its potential liability. So we don't for sure because we haven't really tested this yet. So there's a lot of uncertainty.

SMERCONISH: In the first of your possible outcomes, though, if you, Professor Jeff Kosseff, were the provider of controversial content and I were the platform allowing you to publicize those views, if you take away my shield, my liability shield I'm not going to be so inclined as to give you platform or promote your work. I'm trying to avoid linking you directly to the issue at hand because I respect your day job. But is this not a case of be careful what you wish for?

KOSSEFF: There definitely is the possibility that not just for controversial posters but for all posters without Section 230 there could actually be fewer avenues to be able to express your views online without first being -- going through some sort of vetting process.

The other possibility is and this just comes from First Amendment case law is that if the platform got some sort of complaint it would end up being on notice of the potential defamation or some other legal concerns. And then they would be more likely to take it down.

So, again, we don't know for sure because this is really uncharted territory. Remember, Section 230 was passed when the dominant platforms were Prodigy and CompuServe which played a much smaller role in --

SMERCONISH: Right.

KOSSEFF: -- society than the social media companies do now.

SMERCONISH: I think I read in the "Times" that Mark Zuckerberg was 11 or 12 when this was passed.

KOSSEFF: Yes.

SMERCONISH: So it was not with Facebook in mind. Professor, thank you so much for your expertise. KOSSEFF: Thanks so much for having me.

SMERCONISH: Speaking of Facebook, this comes from Facebook. What do we have?

"I love watching Conservatives support a President who wants to abridge 1st Amendment rights."

Louis, does he want to abridge First Amendment rights or does he want a more pure form of the First Amendment?

[09:40:03]

What's interesting as I listen to Professor Kosseff is that if 230 were to go away, two potential scenarios emerge. One is a restrictive scenario where Twitter says, we're not going to post the work of Donald Trump because we don't want to get sued. The alternative is that it becomes the Wild West, that they completely step back and don't police any content.

I don't think it's going away, frankly. I don't think -- and by executive order I don't know how something that got into law by Congress could be removed by executive order. But it's an interesting intellectual issue.

Please make sure that you're answering the survey question at Smerconish.com, my Web site. Pretty provocative. We're getting a lot of heat on this.

"If you were a juror, would you presume Derek Chauvin to be innocent?"

Still to come, the last time the U.S. launched its own astronauts into space was almost a decade ago. But today that could change depending on weather. NASA astronauts getting ready to launch from Florida to the International Space Station aboard SpaceX aircraft. My next guest was the first astronaut to tweet in space. What other first might there be on this mission?

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[09:45:19]

SMERCONISH: Once again, SpaceX and NASA gearing up this afternoon to potentially make history. At 3:22 eastern the Falcon 9 rocket and crew Dragon capsule will attempt to send NASA astronauts to the International Space Station. But just like Wednesday's attempted launch whether the rocket will actually take off will most likely come down to the weather forecast. Fifty percent chance today, 40 percent chance tomorrow.

The president and Vice President Pence will once again travel to the Kennedy Space Center for the launch. If the mission is successful it marks the first time a commercial aerospace company has carried humans into Earth's orbit.

Joining me now to discuss is retired astronaut Michael Massimino who will be covering the launch for "Discovery Channel" this afternoon. He's also the author of "Spaceman: An Astronaut's Unlikely Journey to Unlock the Secrets of the Universe."

Mr. Massimino, when I was watching the other day and they were within 16 or 17 minutes of liftoff and then it was called off I thought of Tom Brady getting ready to go out for the Super Bowl, having thrown his warm up passes, and now being told, you can take off your uniform because we're not going today.

How frustration must that have been for these two astronauts?

MICHAEL MASSIMINO, FORMER NASA ASTRONAUT: Michael, thanks for having me.

I'll tell you what, that's a good way to describe it. You're all fired up, you're ready to go, but we know as astronauts that you never know if you'll actually going to go. I used to tell my launch guests when they would to see me launch at the Kennedy Space Center I would say, you're going on a Florida vacation and maybe you'll see a launch because this is the way it goes. So they know it's part of the drill.

SMERCONISH: How did the old guard, if you don't mind me putting you in that category, regard the private nature of this mission? Are you all cool with that?

MASSIMINO: Oh, yes, Michael, I sure am. When they first started talking about this I was still with NASA, 10, 12 years ago, in between my own spaceflights and they started saying what they were going to do with SpaceX and this other commercial companies. And I thought, there's no way they can do this but they have a lot of credibility. They've been flying cargoes to the International Space Station.

Once I saw them return the booster, I don't know if you've seen it, they're at the middle of the -- out in the ocean, they hit a little target barge out there I was like, OK, that's it. These guys can do it.

So I'm a total believer. They have their own launch operations down there. I think it's the only way we're going to go forward if you were looking to -- want to do in space is if these commercial companies are successful --

SMERCONISH: You were the first -- you were the first to tweet from space. Put that tweet, by the way, up on the screen so everybody can see it. What firsts might come from this mission?

MASSIMINO: Well, thank you for mentioning that tweet. I got made fun of it on "Saturday Night Live" for that tweet. But that's another story.

The big first here is that it's the first privatization flight. It's the first time that humans are getting on board a private spaceship. NASA astronauts particularly had a couple of test flights with Virgin Galactic, for example. But this is the first time NASA astronauts are getting on board a private spaceship. And the first time a private spaceship is making its orbit with people and docking with it with the International Space Station.

I think, Michael, we're going to look back on this day. If they launch today or whenever they launch, they'll launch soon enough, whenever they launch, that date is going to mark a line in the sand (ph) in space exploration that I think will be remembered for hundreds of years. Before this point, it's always been governments sending people into orbit. And from now on, it's governments but also private companies and it opens up a vast amount of commercial opportunities. And we'll see what happens. But, I think, this is really an important day for that reason.

SMERCONISH: Mike Massimino, fingers crossed for a safe and successful mission today or whenever it takes place. Thank for being here.

MASSIMINO: My pleasure, Michael. And have a good day. Thanks for having me.

SMERCONISH: You too.

Still to come your best and worst tweets and Facebook comments. And the final results of the survey question from Smerconish.com.

"If you were a juror, would you presume Derek Chauvin to be innocent?"

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[09:54:11]

SMERCONISH: Time to see how you responded to the survey question at Smerconish.com. Thank you to those who voted.

"If you were a juror, would you presume Derek Chauvin to be innocent?"

Survey says, 82 percent -- well, isn't this interesting? Nearly -- well, I'll call it 18,000 and change and 82 percent say no. And therein lies the observation that I was making at the outset of the program, which is to say, you watched that tape, we have all watched that tape. I've gone through the exercise of trying to identify is there anything that could be exculpatory? I can't think of anything. Maybe a causation argument.

The system is going to be really tested in trying to provide this officer, and the others if they're charged, with a trial that provides them with what they're entitled to, which is a presumption of innocence.

[09:55:05]

That is going to be tough. Again, don't mistake it for sympathy it's a legal observation.

What do we have, Catherine? What came in? Ton of stuff I'm told.

Smerconish, terrible survey. Just like killing somebody in Fifth Avenue. Murder in plain sight and you are normalizing it. Juan, I'm not normalizing it. Juan, you clearly couldn't be on this jury. I don't know that I could be on this jury. Somehow we're going to have to find 12 people who can wipe the slate clean but you're clearly not in that category. Nobody is normalizing it.

What else came in?

"Quit calling them protests and call them riots and try some honesty."

Luke, some of the folks are protesters and some among the protesters are rioting. I'm not going to castigate everybody who is out there. Good things have come from protests. Fewer things that can be identified as positive have come from a riot.

Stay safe. Have a nice weekend. See you next week.

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