PLI: The Supreme Court's decision in Kelo has raised howls of discontent from many corners. Was it really such a radical decision and why?

SCOTT G. BULLOCK: What's so radical about the Kelo decision is the Court said that the current condition of the land [that is the subject of eminent domain] doesn't matter. The land [at issue] was not in a blighted area, there was no certification that it was a blighted area—this was just your typical working class neighborhood that happened to be sought by the city and private developers to do development projects. So that really makes it an extension of eminent domain authority, where eminent domain can really be used anywhere. There's no requirement [as has been the case historically] that an oligopoly of land ownership exist or even that the area is blighted and meets certain criteria under state blight statutes. This can happen anywhere, and that's what I think so many people are concerned about, and rightly so. That this is an extension of eminent domain and it does put home and small business owners in jeopardy because economic development happens all the time in this country, and developers would love to get their property at reduced rates by working with the government via eminent domain.

There are a number of legislative movements afoot now to try to deal with the Kelo case. This has really been something to witness. Americans are outraged by this opinion, and rightly so. People, quite frankly, can't believe that the Supreme Court explicitly approved something like this. And the polling on this, mainly online polls—admittedly unscientific—but when you see numbers that are upwards of 96, 97, 98 percent of people disagreeing with the court's opinion, you know that this is probably the most despised opinion that the Supreme Court has handed down in years. Even some of the most controversial decisions on abortion, religion and other matters—people feel very strongly about them but sometimes the Country is divided 50/50 or 60/40 in the wake of important Supreme Court rulings. I think it's fair to say that people are overwhelmingly opposed to this opinion. I think, and I hope that this will lead to some significant changes in the law of many states.

We've been tracking this very closely in the weeks since the decision came down. And already we've been able to find and track legislation that has either been introduced or promised, because a lot of state legislatures have been out of session, in 25 states already. And, of course, there are a number of bills on Capitol Hill right now that have already enjoyed wide, bipartisan support that would limit or eliminate federal funding for projects that abuse eminent domain, and that could have serious consequences on the ability of governments to use eminent domain for private development projects.

I think one of the good things about this case, as well, is that it does unite people, not just in overwhelming numbers, but unites people that may have very little in common on other issues. After the Kelo decision was handed down, the first person to denounce the decision on the floor of the United State Senate was John Cornyn, a conservative Republican from Texas. The first person to denounce the decision, that I'm aware, on the floor of the House of Representatives was Maxine Waters, a very liberal Democrat representative of inner city Los Angeles. They probably don't agree on much of anything. But they're both outraged by this decision and they both want federal legislation that addresses it. So I think there is a strong likelihood, given the strange bedfellows that this case brought together, for there to be some significant changes in the law.

I think it's clear that Congress does have the power to limit federal spending for this. There haven't been proposals to try and overturn the Supreme Court decision or redefine public use for constitutional purposes. About five years ago in the Religious Freedom Restoration Act case, the Court made it clear that Congress was not allowed to do that, and that the Supreme Court has the final say on the Constitution and that barring the passage of a constitutional amendment, that Congress would have to focus on the spending provisions.

I was debating a professor from Georgetown Law School several weeks ago on the Hill on this, and he was urging Congress not to change the law on this. However, he agreed that it would be constitutional under South Dakota v. Dole, the Spending Clause case, for Congress to limit or prohibit the use of federal funds for projects that use eminent domain for private economic development.

PLI: There is currently a charged atmosphere in broadcasting regarding the FCC's apparent crackdown on indecency over the airwaves. This arguably started with the Bono case. Can you describe that incident and what the FCC decided in the case that seems to have sparked so much concern?

RICHARD E. WILEY: Let me provide some background on the increased attention to the indecency issue in the last year. As you may know, there is a criminal statute, 18 U.S.C. section 1464, that governs this area. It forbids the utterance of profane, indecent and obscene material by means of radio communications, which includes television as well as the radio medium. The prohibition on profanity, until recently, has never really been enforced. Obscenity is hard-core pornography, which is banned at all times, 24 hours a day. So the principal interest and area of controversy has involved indecency.

I was Chairman of the FCC in 1975 when my Commission was confronted with the George Carlin monologue, "The Seven Dirty Words," which was broadcast via a New York public radio station in mid-afternoon. Our Commission found the program to be "indecent"—that is, programming which describes or depicts in a patently offensive manner, as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs. The reasons for the FCC's findings were really two. One was the pervasiveness or immediacy of the broadcast medium into the American home (the audience could receive it by a mere turn of the dial or push of the knob), and second was the presence of children in the listening and viewing audience.

The Court of Appeals for the District of Columbia overruled the Commission's finding of indecency by a 3-0 vote. We took that case to the court en banc and lost again, 5-4. But, in the seminal 1978 Pacifica decision, the Supreme Court upheld the FCC, basically on the grounds the Commission had stated. The Court quoted the Commission's definition of indecency with apparent approval and, in subsequent cases, it has been explicitly upheld.

Over the years, the FCC's rulings in this area have developed to include a broader range of material than simply the seven dirty words, so to speak.

It is fair to say that, since the late '70s, the Commission generally has tread lightly in the enforcement of indecency violations due to the obvious First Amendment concerns involved in broadcast speech or programming. Most of the enforcement actions have involved relatively modest fines meted out by the Commission for, I would suggest, certain over-the-top comments by radio "shock jocks." Thus, ironically, it has been a number of recent television programs that have brought considerably heightened tension and concern to the whole indecency area—among various citizens' groups, the FCC and Congress. Indeed, there have been bipartisan calls in Congress for greatly increased fines for indecency violations—from the current $27,500 for each violation to perhaps ten times that and more, and even the possibility of broadcast license renewal challenges. While these legislative efforts to date have failed to pass, they may well arise again in the future, especially if another well-publicized case like Bono arises.

Bono, decided in March 2004 by the full Commission, involved a live broadcast (of the Golden Globe Awards), during which Bono, the lead singer of the U2 band, received an award and, in response, said, "This is f'ing brilliant." The Commission found that statement to have violated the statutory prohibition on indecency and, interestingly, also on profanity. In doing so, the Commission overruled an earlier decision by its own enforcement bureau, which had determined that the broadcast had not violated the indecency prohibition because Bono's use of the "f" word had been "fleeting and in a non-sexual context." Under established Commission precedent, if a four-letter word (or other indecent speech) was not used in a patently offensive manner, and if it were simply a fleeting use, the agency normally would not take action.

As a result of Bono, it would appear that certain words are now considered to be inherently offensive—for example, the "f" word, which the Commission said "is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language. Its use invariably invokes a coarse, sexual image. The use of the 'f' word here on a nationally televised awards ceremony was shocking and gratuitous." So basically, there would seem to be a flat ban on at least one of the Carlin seven dirty words.

The second lesson that you might draw from the Bono decision is that once may be enough. The Commissioners repudiated an old precedent that had shielded simple, ephemeral uses of vulgar words from sanction, and said, "Any such interpretation is no longer good law." The agency specifically pointed to technological advances and time delaying of live broadcasts that supported the bleeping of the offending material. Thus, I think that live programming is somewhat at risk.

And, third, as indicated, the FCC in Bono also focused on the statutory prohibition against "profanity." The Commission previously had equated profanity with blasphemy and, because of First Amendment concerns, declined to give any legal effect to it. But, in Bono, the FCC interpreted "profane" to cover "vulgar, irreverent or coarse language," generally, at least "when it is so grossly offensive to members of the public who actually hear it, as to amount to a nuisance." Therefore, the agency recognized a new ground in the statute—you might say a lesser-included offense—that it might arguably use in milder cases or where the speaker was not using the term in a sexual or excretory context.

So, again, Bono's offense was held to be both indecent and profane. However, it is still open to question as to whether and how the Commission will pursue profanity in the future. I also hope and believe that the FCC—under new Chairman Martin—will make an effort to identify more clearly what are actionable cases of indecency and what, under the attendant factual circumstances, are not.