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.

That, in essence, was the decision on Monday, when a federal appeals panel struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language.

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.

“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.

“We are skeptical that the commission can provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,” said the panel in an opinion written by Judge Rosemary S. Pooler and joined by Judge Peter W. Hall. “We question whether the F.C.C.’s indecency test can survive First Amendment scrutiny.”

…[T]op officials at the Federal Communications Commission said the opinion could gut the ability of the commission to regulate any speech on television or radio.
[..]
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.”