Is Scalia’s “F-Word” Opinion Good News for Obama?

While the headlines focus on the subject matter of today’s 5-4 Supreme Court ruling rejecting the broadcaster’s challenge to the FCC’s decision to sanction the broadcast of “fleeting expletives,” the real significance of FCC v. Fox Television Stations could be the decision’s impact on administrative law. As Eugene notes below, the Court avoided the underlying First Amendment question. As a consequence, the decision turned on whether the FCC’s adoption of a more restrictive policy with regard to expletives during prime time telecasts was “arbitrary and capricious.”

In upholding the FCC’s decision, the Court appeared to reject the principle that the burden on a federal agency to justify its policy choice is greater when the agency is altering a prior policy. One effect of this decision could be that it will be easier for the Obama Administration to reverse Bush Administration policies and revise regulations adopted in the past eight years. As Dan Farber explains:

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