FED. APPELLATE COURT ALLOWS EXPLETIVE SLIPS

I sat down to write this *#@! post but spilled my @*#!* coffee on the keyboard so I had to postpone the whole @!&$ing thing.

A Federal Appellate Court Panel in New York stunned the Bush Administration and the FCC by ruling that it’s OK for broadcasters to allow “fleeting expletives” to air with impunity. The decision could possibly gut the ability of the FCC to regulate any speech on radio or TV.

The decision was a victory for Fox, CBS, NBC and ABC, who filed suit against the high FCC fines against them for broadcasting expletives.

THE NEW YORK TIMES reports if President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts. So says the court.

Kevin J. Martin, the chairman of the F.C.C., said that the agency was now considering whether to seek an appeal before all the judges of the appeals court or to take the matter directly to the Supreme Court.

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.”

Mr. Martin, the chairman of the commission, attacked the panel’s reasoning.

“I completely disagree with the court’s ruling and am disappointed for American families,” he said. “The court says the commission is ‘divorced from reality.’ It is the New York court, not the commission, that is divorced from reality.”

He said that if the agency was unable to prohibit some vulgarities during prime time, “Hollywood will be able to say anything they want, whenever they want.”

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. That includes vulgar language blurted out on live shows like the Golden Globes or scripted shows like “NYPD Blue,” which was cited in the case.

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.”

Two years ago, Congress increased the potential maximum penalty for each indecency infraction to $325,000, from $32,500. Producers and writers have complained that the prospect of stiff fines had begun to chill their creative efforts.

Nothing is more creative than a line about excretory organs.