If President Bush can say "shit" on TV and Dick Cheney can say "fuck yourself" on the floor of the United States Senate, well, why can't Bono say "fuck?"

Fuck if the courts know.

Subtract the expletives and that's more or less the conclusion of the Second Circuit Court of Appeals in today's Fox Television Stations v. FCC decision.

"We find that the FCC's new policy regarding 'fleeting expletives' represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry," the Second Circuit majority writes. "We further find that the FCC has failed to articulate a reasoned basis for this change in policy."

The departure in question refers to fallout from the Federal Communications Commission's 2004 Golden Globes ruling, which scolded NBC for indecency after the rock star Bono famously declared that "this is really fucking brilliant" upon receiving a televised Golden Globes award.

With this decision, the Commission abandoned its policy of "restrained enforcement" of its indecency thou-shalt-nots, declared constitutional by the Supreme Court in its famous 1978 judgment, Pacifica vs. FCC.

Prior to Golden Globes the agency adhered to a strict policy: the expletivist in question had to have laid it on thick, like George Carlin in his famous "seven dirty words" monologue. He or she had to have intended to shock his or her audience to provoke an FCC spanking for the broadcaster. Quick, impassioned, aka "fleeting" cusswords didn't count.

But no more in the case of Bono.

"While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the 'F-Word' such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law," the FCC opined.

"Good law" now meant that "the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent."

That's what Fox television found out late last year when the FCC declared indecent comments made by Nicole Richie and Cher at the 2002 and 2003 Billboard Music Awards, despite their off the cuff quality.

"People have been telling me I'm on the way out every year, right? So fuck 'em," Cher declared in 2002.

"Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple," Richie added a year later.

The Commission ruled that in both these instances it is fucking simple, actually. The word "'fuck' . . . inherently has a sexual connotation and thus falls within the scope of our indecency definition," the agency wrote on November 6th. And that went for the word for Number Two too.

But today the Second Circuit Court of Appeals noted that, in light of recent televised public declarations by our highest officers, the FCC's recent indecency decisions appear arbitrary and capricious.

"In recent times," the court observed, "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'," as the FCC has delicately put it.

The Second cited two examples: President Bush's inadvertently televised remark to British Prime Minister Tony Blair that the United Nations needed to "get Hezbollah to stop doing this shit" and Vice President Dick Cheney's "widely-reported 'Fuck yourself' comment to Senator Patrick Leahy on the floor of the U.S. Senate."

The court also found "divorced from reality" the FCC's claim that if it allowed fleeting expletives a free ride, they would proliferate, "because the Commission itself recognizes that broadcasters have never barraged the airwaves with expletives even prior to Golden Globes."

With today's judicial beating, Fox TV's punishments for Richie and Cher's remarks are remanded back to the FCC, "for further proceedings consistent with this opinion."

It is unlikely that the FCC will appeal this decision to the Supreme Court, predicts Andrew Schwartzman of the Media Access Project, given the court's narrow reading of the law.

"Score one for the First Amendment," Schwartzman told reporters today. "It's a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy."

Bush's Hezbollah remarks