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As Joe Biden Takes Major Lead In Polling, Is Election Already Over?; What Happens If Supreme Court Vacancy Occurs In Election Year?; Congressman And Civil Rights Icon John Lewis Dies At 80; Interview With Comedian And Author D.L. Hughley; Asheville Approves Reparations For Black Residents; College Admissions Revoked Over Racist Social Media Posts. Aired 9-10a ET

Aired July 18, 2020 - 09:00   ET




MICHAEL SMERCONISH, CNN ANCHOR: Civil rights icon John Lewis has passed away after his last battle with pancreatic cancer. I'm Michael Smerconish in Philadelphia. The longtime U.S. congressman from Georgia called the "Conscience of the Congress" was one of the 13 Freedom Riders to challenge segregated interstate travel and was the last surviving speaker from the 1963 march on Washington.

On March 7, 1965, he led one of the most famous marches in American history across the Edmund Pettus Bridge in Selma, Alabama, was brutally beaten by a trooper with billy club. His words and life's work resonated this summer during the protests in the wake of the killing of George Floyd. Congressman John Lewis was 80. We'll have more on his passing later in the program.

Turning now to the state of the presidential race, landslide coming or another Dewey defeats Truman? If the election were held today, it would end in a blowout, right? Joe Biden, as he claims, would beat Donald Trump like a drum. That is what the data suggests. No matter what the Trump campaign might argue, the demotion of manager Brad Parscale seems confirmation enough. You don't yank a healthy quarterback with a hot hand.

More than anything else, the president is upside down because of his handling of coronavirus where he wore a mask only once and under duress, downplays the death toll and is now publicly feuding with his scientific right-hand man. It's no wonder that 64 percent of Americans told an "ABC News Washington Post" poll that they distrust what the president says about the virus.

The combination of the pandemic, nationwide protests calling for racial justice, underwhelming attendance at that Tulsa rally and the president's continued laser focus on his base would all seem to suggest that he can no longer shoot someone in the middle of Fifth Avenue and get away with it.

This week, there was a plethora of national polling information, all released supporting the same narrative. Former Vice President Joe Biden holds an 11-point lead in an "NBC Wall Street Journal" poll, a whopping 15-point lead in a Quinnipiac University poll and in an "Ipsos Reuters" national poll, it's Biden by 10.

And these are not outliers. The "RealClearPolitics" average shows Biden beating Trump by 8.6 percent. Media headlines reflect the mismatch and they're not just from liberal outlets. Quote, "Trump's drop in polls has confident Democrats sensing a tsunami coming in November," reads one at "The Washington Post."

Now, does this all sound familiar? It should. Here's a June 2016 headline from the same newspaper, "In new poll, support for Trump has plunged, giving Clinton a double-digit lead." Four years ago at this time nationally, an "NBC Wall Street Journal" poll showed Hillary Clinton edging out Donald Trump by five. She was up by four in an "ABC Washington Post" poll. She was up seven in a "CNN ORC" poll.

The final national polling from 2016 actually wasn't so far off the mark. In the end, they had Clinton up by about 3 percent. She won the popular vote by 2.1 percent, but of course we don't elect presidents by national polling or the popular vote for that matter. If we did, President Hillary Clinton would now be running for re-election.

While they nailed the outcome in most states, the pollsters were wrong where it mattered most -- in the battleground states, largely in the Upper Midwest. So let's compare what polls are saying now versus what they predicted four years ago where it matters most.

Today, polls show that Trump is losing in Michigan, Pennsylvania and Wisconsin. Biden is sitting with a comfortable 8 percent lead in Wisconsin according to a Marquette Law School poll from June. That same exact Marquette poll showed Hillary with a 9 percent lead in the summer of 2016. In the end, Trump won the state by 0.8 percent.

A Monmouth University survey of Pennsylvania voters released this week has Biden up 13. Four years ago, a poll at this time by "NBC" and "The Wall Street Journal" showed Hillary Clinton winning Pennsylvania by 8. In the end, it was Trump by 0.7 percent. And in Michigan, a recent survey showed Biden leading by 11 percent. Four years ago, it was Clinton who was already ahead by 9. In the end, Trump won the state by a razor-thin margin of just 0.2 percent.

As "USA Today" pointed out this week, of the 104 published polls that surveyed voters in those three states from August through the election, 101 of them had Clinton winning, two were tied, one in Pennsylvania showed Trump with a slight lead, many fell within the margin of error, but 15 had Clinton up by double digits at some point.


So what does it all mean? No doubt that you'd rather be Joe Biden than Donald Trump right now, but it also means that there's time on the clock for anything to happen and no matter what the polling shows for the next 108 days until the election, the upset of 2016 will give the Trump campaign fodder to hold out hope no matter what the data says.

In that Monmouth survey of Pennsylvania that was released on Wednesday, the one where Biden is up by 13, many respondents said they think they live amidst secret Trump voters who could ultimately swing the November election. Fifty-seven percent said they believe their communities are populated by people who support Trump but haven't told anyone. The president had better hope that's the case.

I want to know what you think. Go to my website at this hour. Answer the survey question. Very simple. Is the election over?

Jason Miller joins me now. He's a senior adviser on President Trump's re-election campaign. Hey, Jason, I have worked in the past on some campaigns where there was a hidden vote for my candidate. I get it. I wouldn't be surprised if there's a 2 to 3 percent bump for President Trump, but 8, 10 percent, I don't see it and what I most wanted to ask you is this.

I understand how in a head-to-head there could be some perceived pressure brought on respondents, but you've got to be troubled most by the internals. For example, where two-thirds roughly say, hey, we just don't trust anything that he says about the virus. That's one of the surveys that I was quoting. Your thoughts are what?

JASON MILLER, TRUMP 2020 SENIOR ADVISER: Well, Michael, good to be with you this morning. Good to be back on CNN and first, my condolences to the family of John Lewis. A real civil rights hero and an icon, but let's --


MILLER: -- go into the politics here. Some real, right off the top, big things we got to point out. First of all, these surveys you talked about that are coming out this week, whether it be the Quinnipiac, which only surveyed 24 percent Republicans, would it be the "ABC Washington Post" poll that had 24 percent or even the "NBC Wall Street Journal" that had 26 percent, these are either 9 or 7 points off of what the exits showed in both 2018 and 2016.

And as we talk about the exits, even CNN's exit polling in 2018 -- and look, 2018 was a bad year for Republicans had at (ph) 33. So you're talking about a 27 percent under-representation of Republican voters. The fact of the matter is is when you look at polls that are being done that have actual likely voters, not registered voters, so the "Rasmussen" poll is a good indicator, we do our polling much in the same method, this race is either a tie or a toss-up no matter how you look at it.

President Trump, in our eyes, is well positioned to win this race. He's either leading or tied within a margin of error for every state we need to win to get to 270. And Michael, I'd just say there are a couple other trends that we're noticing in the polling right now. First and foremost, Joe Biden has some real problems with African American voters. That's why he's up running TV ads all over the country and radio ads in urban markets.

The fact of the matter is President Trump is getting 14 percent with African Americans according to "Zogby," he's getting 20 percent according to "Rasmussen." There's a massive enthusiasm gap. Recent "CNN" polling showed that President Trump, 70 percent of his supporters are supporting him because they like him. Only 37 percent of Biden supporters are backing him because they actually like him. Nobody wanted Joe Biden to run.

SMERCONISH: Jason, you haven't said this, but I'll just state for the audience. There's been no cherry-picking here. We worked awfully hard in the last 48 hours to make sure that we could present a nice cross- section of all of the data. There's nothing out there that says that the president is on the right track. If it were, Brad Parscale wouldn't have been demoted, right?

MILLER: Well, no, I'll push back on that. I think this is putting the key players on our team in a position to win. So for example, putting Brad at the position where he's running the digital and data and Bill Stepien, who's a world-class campaign manager, into that spot, I think puts them both in the spot where they can help the president going into this fall. It's like moving our point guard to center and our center to point guard. So we've streamlined the team and I think we're in a good spot.

Brad's still a very important part of the team, but our polling, we think we're in really good shape here and this is -- especially to go through all the battlegrounds. There's a reason why Joe Biden is hiring up staff in Minnesota and Maine.

There's a reason why Joe Biden is having to run advertisements -- that's really unprecedented, by the way, Michael, for a Democratic candidate in the general election to have to run advertisements reaching out to African-American voters because Joe Biden is anemic at best.

One other buried lead here, Michael, want to make sure that we don't miss. In addition to these numbers that we're seeing -- and again, these public polls which go by registered voters and not likelies, so you have about a 2 or 3 percent variance even just from that. What we're seeing on the trendline is Joe Biden moving further and further to the left.

This isn't making the big headlines. I think this becomes a suppression poll in many ways when you see the 72-point fought (ph) from "The Washington Post" saying Trump way behind and all that nonsense, but the fact of the matter is Biden's moving further left and I've never seen this in the general election --


SMERCONISH: I know -- I know that's -- I know that's the way he's --

MILLER: -- ever before, but he's on the defense --

SMERCONISH: I know that's the way that you're trying -- yes. I know that's the way you're trying to portray him, but we've all seen by now the Chris Wallace clip where the president can't substantiate the charge that Joe Biden is for defunding the police. I have to ask you about another subject. The economy has been the president's saving grace. The other thing that I found significant as I -- as I burrowed into all these numbers this week is that that seems to have flipped and that now, on the question of who's best protecting your pocketbook, and we could put it up on the screen, it's Joe Biden by 10 or if you ask people about the middle class and who is best equipped to help the middle class, I mean, that has to trouble you the most is my point. You can respond.

MILLER: So the specific numbers you're putting up right now I'm not able to see, but all of our internal numbers and other public polling that I've seen says that voters still trust President Trump on the economy. He built the greatest economy in the history of the world and he's doing it again. That's in stark contrast to Joe Biden who wants to take a U-turn and go a different direction.

I'd make one point here, Michael, and that's the fact that even though we've seen the right track, wrong truck numbers nationally be upside down, this is not a change election and that's because Americans want the economy that we had before COVID.

President Trump is best prepared to bring that back. He has the plan, he has the leadership to do it. That's why Joe Biden is running on corny slogans like, "Build Back Better." He's not running as a change candidate because Americans want the economy we had before COVID.

SMERCONISH: Here's what we can agree on -- there's a lot of time on the clock and if it were a ball, it bounces like a football and you just don't know in which direction it's headed next. Jason, thanks for being here.

MILLER: Thank you, Michael.

SMERCONISH: What are your thoughts? Tweet me @Smerconish or go to my Facebook page. I'll read some throughout the course of the program. From Facebook this comes, "Cancel culture has silenced Trump supporters. The only place they can truly express how they feel is the ballot box. They're accused of being racist, et cetera when in reality, they value, hard work, faith and family."

Ann, I get it and I get that that's the complaint and all this polling information must be mistaken. What I was trying to say to Jason is when you go beyond the question of who are you for -- Biden or Trump? I'll give you the argument that there's a hidden Trump vote there.

Not eight or 10 points, but it's the further, as we say, internals in the poll that ought to be most problematic for the Trump campaign because people on the economy have shifted, on going back to school they've shifted. It's the data that is not at the top line I think that really tells the complete story. That's what I'm trying to say.

Remember to go to my website at and answer the survey question this hour. I love the simplicity of it. Is the election over?

Up ahead, in a year full of earth-shattering events that have changed the political landscape, I have to wonder what would happen if the Supreme Court had another vacancy between now and the November election? I will ask Nina Totenberg, a Supreme Court expert, about that hypothetical.

And the beautiful mountain town of Asheville, North Carolina approved a long debated American idea -- reparations for slavery and discrimination. I'll talk to comedian and author D.L. Hughley about that.

Plus, what the late John Lewis meant to America's racial reckoning in the 1960s and beyond.



SMERCONISH: What if there were to be a Supreme Court vacancy between now and the election? Would the President and GOP Senate seek to confirm a successor notwithstanding what occurred just four years ago? The answer seems to be a certain yes. Now, remember that chronology.

Justice Scalia passed in February of 2016. The election was then nine months away. In March, President Obama nominated Merrick Garland, the chief judge of the D.C. Circuit Court of Appeals. That's a prestigious bench that has often served as a Supreme Court farm team.

Garland had previously been confirmed to his then position in a 76 to 23 vote of the U.S. Senate and had earned the praise of Republicans, including Senator Orrin Hatch of Utah. Immediately after Scalia's passing, Senate Majority Leader Mitch McConnell served notice that there'd be no action taken on any pick by President Obama. His rationale that with the election upcoming the American people, quote, "Should have a say in the court's direction."

And McConnell wasn't alone. The 11 Republican members of the Senate Judiciary Committee signed a letter saying they had no intention of consenting to any nominee from President Obama. Garland never had a hearing. Again, Scalia passed nine months before Election Day. We're now less than four months from the election. Supreme Court picks are often contentious during the confirmation process, but this was different. McConnell was ignoring a nominee, treating the situation as if no vacancy existed.

Beyond citing the upcoming election, Republicans also noted that no Democratic president had made an appointment while Republicans held the Senate since 1895 and McConnell argued that Democrats had also hinted at the same approach.

In 1992, then-senator Joe Biden had raised the possibility of withholding any Supreme Court nominee from Republican President George Herbert Walker Bush in, quote, "political season." Note that there was no vacancy then and it did not happen, still Republicans have tried to tag Biden with setting the standard.

In 2016, the prospect of President Trump instead of Hillary Clinton appointing Justice Scalia's successor, that was a huge motivator for conservative voters. Where just fewer than 80,000 votes in three states decided the election, you could make a credible case that the Supreme Court issue won the race for Trump. [09:20:00]

When he won, he named Neil Gorsuch to the Court. So what would happen in the unfortunate situation where a vacancy were to occur now? The answer seems pretty clear. In February, McConnell reiterated his position that the Republican-controlled Senate would confirm a nominee this year despite the events of 2016.


MITCH MCCONNELL, (R) SENATE MAJORITY LEADING: Let me remind you what I said in 2016. I said you'd have to go back to the 1880s to find the last time a vacancy on the Supreme Court occurring during a presidential election year was confirmed by a Senate of a different party than the president. That was the situation in 2016. That would not be the situation in 2020.


SMERCONISH: This week, CNN's Manu Raju tweeted that when asked about this same hypothetical, White House Chief of Staff Mark Meadows said he would expect a quick confirmation. Joining me now to discuss is Nina Totenberg. She's the legal affairs correspondent for "NPR." Nina, let me say at the outset that I've been planning this discussion for weeks. I don't offer it with any particularity to any member of the Court. I wish them all to live long and healthy lives.

You know that both sides seek to distinguish what happened four years ago. From your perspective, how unique was the treatment of Merrick Garland?

NINA TOTENBERG, LEGAL AFFAIRS CORRESPONDENT, NPR: It was completely -- it was a one-of-a-kind. It was unique. It had never happened before and there were moments during that episode where some of McConnell's own troops were so, I think, embarrassed by it that they started to flake off occasionally and would say something about, well, he deserves a hearing and McConnell, in one case that I know of, told the senator, you keep this up and I will run a primary opponent against you. So there was no opposition within the ranks.

SMERCONISH: Do you think that it's a -- this is all hypothetical. Do you think that it's a certainty that Republicans would remain lockstep this time around and if not, who might be the likely defectors in the scenario we're discussing?

TOTENBERG: Well, it depends whether it happens before the election or after the election. If it's before the election, there are a lot of senators who are going to have tough races and they may not want to look like hypocrites because they, last time, blocked somebody from consideration and this time would be voting to confirm.

I mean, somebody like Susan Collins, for example, or Cory Gardner in Colorado, it could really be a big election issue that works not in their favor. Whereas I think in the national election, what we've seen fairly consistently, increasingly over the years is that the Supreme Court as an issue favors conservatives because they vote on that issue and it's their prime -- often their primary motivation for voting and that is not true for liberals. They always think it's going to work out OK for them until it doesn't.

SMERCONISH: One wonders where is the line? If Justice Scalia passed nine months before an election and Senator McConnell at the time said, well, the American people need to have a say through the election, you know, now we're less than four months away from the election. I guess it's situational and it depends who has the power.

TOTENBERG: It depends who has the power, but, you know, the senators who face tough Senate elections, and there are now probably a half dozen of them, and the Democrats have a real possibility of controlling the Senate for the first time in a long time, but the Republicans are going to be between a rock and a hard place because they need McConnell's help financially, et cetera to win reelection, but this kind of a vote could doom their reelection.

So it's really -- I think he would absolutely try to push somebody through as soon as he was sure he had the votes and that would be the question. Did he have the votes? But I think they've made very clear their intention. They intend to try to do that and I think they've made clear their intention that they would try to do it potentially even after the election if Trump lost.

SMERCONISH: Let's hope everybody lives to be 100 and serves until their last breath. Nina Totenberg, thank you so much.

TOTENBERG: You're welcome.

SMERCONISH: Checking in on your tweets and your Facebook comments. This is from Facebook I think, "McConnell would be wise to be consistent and get people to the polls to decide the next SCOTUS member. Doug I -- Doug Ebersole, I would -- I would simply say this.


I think this was -- you know, as an attorney, I think I'll say it this way. Every four years, I find myself on radio primarily saying it's the Court, the Court, the Court. It's the single greatest power possessed by a president beyond the war powers, you know, the ability to populate the federal bench which are lifetime appointments and frankly, nobody seems to hear me.

But in the last cycle when you had a vacancy and the choice became one of would you like Hillary Clinton to fill it or would you like Donald Trump to fill it, I think it was an enormous rallying cry for conservatives. I want to remind you to answer the survey question at this hour. It's a real simple question and yet it's a bit complicated, isn't it? Is the election over?

Still to come, colleges around the country are rescinding admissions to incoming freshmen after the exposure of racist or otherwise offensive social media posts. Is this the right lesson about speech?

And John Lewis, the son of sharecroppers who became a civil rights leader and U.S. congressman, has passed at the age of 80, the very same week that the City Council of Asheville, North Carolina passed groundbreaking economic reparations for slavery. D.L. Hughley is here to discuss the state of race relations today and his hit new book.



SMERCONISH: Civil rights icon and congressman John Lewis has died at the age of 80 from pancreatic cancer. The son of sharecroppers in Troy, Alabama because a civil rights activist who by his count was arrested more than 40 times while demonstrating against racial and social injustice.

He was just 23 years old when he spoke on the 1963 March alongside the Reverend Martin Luther King. Two years later he marched across the Edmund Pettus Bridge in Selma, Alabama, was brutally beaten by a trooper with a billy club.

For more than three decades he served as the U.S. representative for Georgia's Fifth District, was widely seen as the House's moral conscience. He lived to see this summer's massive Black Lives Matter marches in the wake of the killing of George Floyd by police.

In a statement, President Barack Obama said this, not many of us get to live to see our own legacy play out in such a meaningful, remarkable way. John Lewis did. And thanks to him, we now have all of our marching orders to keep believing in the possibility of remaking this country that we love until it lives up to its full promise.

Joining me now to discuss is comedian D.L. Hughley whose new and timely book is titled "Surrender, White People: Our Unconditional Terms for Peace." D.L., I thought the book was great. I didn't know whether to laugh or to cry. But I'm thinking about how, you know, 50- plus years ago, he was beaten with a baton, trying to get voting rights for folks of color. And, you know, 50 years thereafter, you go to sell your house in L.A., and the appraiser has some interesting advice. What's that story?


Well, he asked me to take down -- it was such a nice house, he asked me to take down my personal family pictures because he believed it would in some way devalue the house or devalue the appraisal. And, of course, I was like, I'm not taking my pictures down, and sure enough the appraisal came in so low, they thought that the house would had to be in some form of disrepair. So, we called the bank. And they sent another appraiser out and they gave us a fair market value, what were the costs at that time and he was terminated. And they asked him why he did it. And he said because I could.

And I think when you look at the passing of John Lewis he helped us navigate some of the most turbulent times in our history. And he was there in a beacon time, during that time. And he got to see the next turbulent time in our history. But it also tells you -- I think it tells you how far we've come and so polarized when there used to be a time when a national figure, regardless of what party he was from, everybody, particularly the leader of the country came out immediately and said something about it.

And, you know, just kind of a noteworthy person has passed. And that's a time to put all of the criticism aside and all of the past war aside just to kind of give somebody condolences, and we can't even do that now. So, I think John Lewis typifies where we are and where we are going. And I think that it is -- like Moses didn't get to go to the promised land and I think he didn't either, but he was pivotal in leading us there.

SMERCONISH: And your book "Surrender, White People" partly tongue-in- cheek with the title --


SMERCONISH: -- lets us know there's a lot of work to be done. Here's part of what you write. So, here we are. Nobody's winning, everybody's losing. We're all angry. We've been at it so long it feels like we'll always have racial conflict and like we'll never figure out how to live together in peace and harmony. Whatever happened to ebony and ivory living side by side on my keyboard? Explain.

HUGHLEY: I think that ultimately one of the things that we have to deal with in America is there are a lot of people who refuse to accept the fact that there is white supremacy. There's pervasive bias. Even -- if you look at what happened a couple of days ago with Tucker Carlson, he once said that he never even met a white supremacist. That white supremacy is not a problem. He never met one and he has to fire his white writer who in turn a white supremacist.

And so, the notion that there are people in loud voices who probably gave this notion that it doesn't exist, it doesn't play any part in it is one of the things that -- listen, all of us have felt entitled to privilege. All of us, for whatever reason. But we have a nation that's built on a particular group, their right to privilege.


And if we're all going to share this American experience, this great American experience, that has to be admitted and rectified and mitigate it in some way. And I think that is the way we kind of move forward.

SMERCONISH: In Asheville, North Carolina this week there was a move in support of reparations, is that the answer? Is that where you're headed?

HUGHLEY: I think, you know, if you look at what's happening, there are several Ivy League colleges, there are several schools who have decided that reparations were -- I think that, obviously, and it's a misnomer to believe that there were no reparations paid. Slave owners were paid reparations.

In the 1982 -- in the Reagan administration Italian immigrants were paid reparations. That was 100 years ago because some of them have been lent. The Japanese have paid reparations so this notion that we've never done it is a misnomer. And now to look at it, if we had this conversation six months ago it would have been dismissed out of hand. And now, people are actually starting to have conversations about what it would look like. And what it would entail and what would happen. And that's how it starts because if you look at what happened with the LGBTQ movement, that wasn't marching, that wasn't fighting, that was Glee and Ellen and watching them be us.

The marijuana movement, watching that and find out they were strange people. They were us. And I think for the first time, whether America wants to admit it or not, they've really started to -- I don't know, maybe it's because we were on lockdown or the world is on lockdown, and certainly, the George Floyd video played a part, but they're starting to really see us -- this is us, and we have to do something about us.

And I think that these conversations are going to be turbulent and they're going to fraught with all kind of disagreements. But the fact that people are moving forward with the notion that things that were wrong need to be made right. We can build statues to our divisions. W e can do something that builds our divisions, that starts to erase them. And I think reparation is one of those things.

SMERCONISH: And you propose a statute of limitations for statues. By the way, the book is just loaded with classic D.L. humor. And yet, makes a lot of serious points. Thanks for being here to discuss it.

HUGHLEY: Thank you, man. Thank you, man. You take care.

SMERCONISH: That's D.L. Hughley.

I want to remind you to answer this week's survey question at Simple and yet complicated, "Is the election over?"

Still to come, should an offensive social media post from your teenage age years haunt the rest of your life? Across the country colleges have been revoking the admissions of incoming students who have been outed online for expressing racist and/or homophobic views. Is that the right outcome?



SMERCONISH: In the national reckoning over race, after the killing of George Floyd, several colleges have been rescinding the admissions of students who've been exposed on social media for past perceived racial posts. For example, on May 30 somebody outed a 17-year-old female lacrosse player accepted at Marquette University for posting this on her Snapchat.

Quote -- "Some people think it's OK to f'ing kneel during the national anthem so it's OK to kneel on someone's head." Just a day later, Marquette tweeted that it had rescinded her acceptance and athletic scholarship, saying -- quote -- "We are called to build a nurturing inclusive community where all people feel safe, supported, welcomed and celebrated."

In another case, the 17-year-old valedictorian of her high school in Cape Coral, Florida was planning to attend the University of Florida but actress and YouTuber Skai Jackson tweeted a request for people to identify racist posts and which school students were attending.

Somebody flagged this old post in which the valedictorian wrote, that she tries hard not to be racist but definitely is calling two black students in one of her classes -- quote -- "retarded" and -- quote -- "crack whores." After death threats and despite her apology saying she was angry at the time because she was being bullied, she's no longer going to be attending the University of Florida.

Then there's this Snapchat video of a male student who was headed to Cornell to play football. The video shot by a high school buddy was supposed to be documenting their friend's first time smoking a cigarette but it included multiple uses of the n-word.


NATE PANZA, STUDENT: (EXPLETIVE DELETED). Oh wait, you can't put that on. You can't post that.


UNIDENTIFIED MALE: You can't save that. You can't post that.



SMERCONISH: Although the student gave an lengthy apology to the student newspaper taking responsibility for his actions not only was he kicked off the football team and then uninvited from the college all together, but the person who shot the video, who repeated the n- word also had his admission rescinded by the University of Richmond.

I get the impulse but I question is this the best approach to fix the problem? Joining me now is Clay Calvert, director of Marion B. Brechner First Amendment Project in the University of Florida's College of Journalism and Communications. Clay, we often toss around loosely. First Amendment, First Amendment, are these cases literally First Amendment cases?

CLAY CALVERT, PROFESSOR OF LAW, UNIVERSITY OF FLORIDA/COLLEGE OF JOURNALISM AND COMMUNICATIONS: Well, the initial issue here is, is it a private university or a public university? The First Amendment only protects us from government censorship. So, the First Amendment would only come into a play when a public university rescinds an offer of admission.

So, you mentioned Marquette and University of Richmond, those are private institutions. There really would be no First Amendment issue there. But when it comes to a public university, there is an issue.

SMERCONISH: OK. In those instances where the First Amendment does apply, there are exceptions to the First Amendment. Defamation, fighting words, obscenity.


Where would this fall? How would this be protected or not protected by the First Amendment?

CALVERT: Sure. Well, generally, the First Amendment does protect a lot of offensive speech. One of the things that does protect generally is actually what many people would consider to be hate speech. But it doesn't protect true threats of violence. It doesn't protect what we would consider to be fighting words or incitement to violence.

So, I think one of the things we have to think about here is a public university is going to have a much more difficult time, I would say, expelling or suspending a student who is currently enrolled in classes than it is going to be rescinding an offer to admission to student who is not yet fully engage in classes at that university. So, I think that's a dichotomy. Are they actually taking classes or they're simply been offered admission?

SMERCONISH: In other words, there's more latitude for the school in these scenarios for he or she who has not yet matriculated as compared to somebody who's already on campus and part of student body?

CALVERT: Yes, and that's because of a concept that we call Institutional Academic Freedom. So, Institutional Academic Freedom here would be a competing interest with the First Amendment right of free speech. So, one of the core pillars of what we would consider to be Institutional Academic Freedom is the ability of a university to choose the students that it wishes to teach.

And so in a holistic admissions process and by that I mean not just SAT scores or GPA but extracurricular activities. And also things outside of the school, you know, is somebody involved in -- heavily involved in community service. And so that's where a public university would have the ability to consider the student as a whole and I think that's important to take into account here.

SMERCONISH: I know that you're paying close attention to these cases. The ones that we referenced and many, many more. What is happening to these students? In other words, if they're punted by one institution, one university, are there usually schools out there giving them a second chance?

CALVERT: I think there will be schools giving some of them a second chance but clearly the danger is that someone else will flag their attention if they realize they're applying to another institution so there definitely is some permanent stigma attached to this, their past actions. And that clearly is a lesson, I think, for anybody here on social media that what you say can have ramifications down the road. And maybe one thing that universities might consider is how old was the person when they made these comments.


CALVERT: You know, should they be forgiven after a while, if you were 11 years ago old and you said something and now you're 17 or 18? You know, and you wrote a sincere essay and actually did an in person or Skype or Zoom interview today, you know, with somebody in admissions and it was clear that you apologized for that, maybe that should be factored into the equation.

SMERCONISH: That makes great sense to me. Clay Calvert, thanks so much. That was interesting.

CALVERT: Thank you very much for having me.

SMERCONISH: Checking in now on tweets and Facebook comments. I think this is comes from Facebook. What do we have?

Teens are brainless to start with. It is college's job to finish forming them.

Joe, I agree with a large part of what you just said. Many, many times I regret not having grown up in a digital age because I wish that I had more photos and videos and remembrances and so forth. On the other hand, it's kind of a blessing, not with any regard with racist or homophobic statements but just the foolishness in which I was engaged and so too so many of our friends. You kind of yearn for the days that the biggest trouble you could get in was the Xerox machine, right?

Still to come, more of your best and worst tweets and Facebook comments. And this is going to be interesting, the final results of today's survey question. I gave you a ton of data at the outset of the program and compared where we are to 2016. And then asked, is this election over?



SMERCONISH: Time to see how you responded to the survey question this hour at "Is the election over?" Survey says -- 79 percent of more than 16,000 who voted say no, it is not.

By the way, if you tuned in late, first of all, where were you? But, secondly, you're wondering what precipitated that question? There was a ton of data that came out this week, a whole variety of polling sources. And the numbers have a consistent theme and conclusion, which is that right now at this moment in time Joe Biden is winning handily in the national surveys and in those battleground states as well.

And then I placed on the screen all the data from 2016 at exactly this time when the same thing could have been said about Hillary. She was up with a commanding lead and we know how that turned out. But that's why I wanted to ask whether the election is over. And what I said is that what's different this time is this time we're in the midst of the pandemic.

Is there a hidden Trump vote out there? I believe that there probably is but not enough for the margin by which he's trailing Joe Biden. And his handling of the pandemic, I think, is not a question on which people lie to the pollster because of the panache in being associated with the D instead of the R.

OK. What else came in during the course of this hour?


There is this -- the election is not over. Get back to me in October with poll numbers after there has been a debate or two. After 2016 the public will not trust the polls again.

Well, Anthony, I did make that observation as well, that the Trump campaign has a built-in argument to say, as Jason Miller did here today, well, come on, 2016 they said the same thing about Hillary. But I think that the proof in the pudding lies in the fact that Brad Parscale, who was the Trump campaign manager, has just been demoted and put back in the role for being responsible for all of the technical and social media sides of the campaign. My point is this, they wouldn't have changed courses if they thought they were really doing well.

Thanks for watching. I'll see you next week.