Let the "fleeting expletives" fly -- says Second Circuit.

The NYT reports:

The decision, by a divided panel of the United States Court of Appeals for the Second Circuit in New York, was a sharp rebuke for the F.C.C. and for the Bush administration. For the four television networks that filed the lawsuit — Fox, CBS, NBC and ABC — it was a major victory in a legal and cultural battle that they are waging with the commission and its supporters.

Under President Bush, the F.C.C. has expanded its indecency rules, taking a much harder line on obscenities uttered on broadcast television and radio. While the judges sent the case back to the commission to rewrite its indecency policy, it said that it was “doubtful” that the agency would be able to “adequately respond to the constitutional and statutory challenges raised by the networks.”

It all started with Bono:

Beginning with the F.C.C.’s indecency finding in a case against NBC for a vulgarity uttered by the U2 singer Bono during the Golden Globes awards ceremony in 2003, President Bush’s Republican and Democratic appointees to the commission have imposed a tougher policy by punishing any station that broadcast a fleeting expletive....

Reversing decades of a more lenient policy, the commission had found that the mere utterance of certain words implied that sexual or excretory acts were carried out and therefore violated the indecency rules.

But the judges said vulgar words are just as often used out of frustration or excitement, and not to convey any broader obscene meaning. “In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities.”

Adopting an argument made by lawyers for NBC, the judges then cited examples in which Mr. Bush and Mr. Cheney had used the same language that would be penalized under the policy. Mr. Bush was caught on videotape last July using a common vulgarity that the commission finds objectionable in a conversation with Prime Minister Tony Blair of Britain. Three years ago, Mr. Cheney was widely reported to have muttered an angry obscene version of “get lost” to Senator Patrick Leahy on the floor of the United States Senate.

Yeah, stick it to Bush and Cheney.

I love the way the NYT seems enthused about this new liberation in media but still can't print "Go f*ck yourself." (Me neither, but I'm only using the asterisk out of fear of what filters might do to me.)

“We find that the F.C.C.’s new policy regarding ‘fleeting expletives’ fails to provide a reasoned analysis justifying its departure from the agency’s established practice,” said the panel.

So this is not a First Amendment decision, though the majority does say “We question whether the F.C.C.’s indecency test can survive First Amendment scrutiny.” The court is finding fault with the process of developing the new policy. In dissent, Judge Pierre Leval stressed the "the deference courts must give to the reasoning of a duly authorized administrative agency": "The commission’s position is not irrational; it is not arbitrary and capricious.”

The case involved findings that the networks had violated the indecency rules for comments by Cher and Nicole Richie on the Billboard Music Awards, the use of expletives by the character Andy Sipowicz on “NYPD Blue” and a comment on “The Early Show” by a contestant from CBS’s reality show “Survivor.”

So Bono opened the door and now every nitwit celebrity and reality show half-celebrity will be saying "f*ck" on the slightest provocation. The networks say it's up to you to decide what shows to watch, so... good luck figuring out what to let your kids watch.