Vulgarity and Nudity on Over-the-Air Radio and TV Broadcasting

The Supreme Court has just agreed to hear the latest incarnation of FCC v. Fox Broadcasting (cert petition here), which asks whether the FCC’s current anti-indecency enforcement regime violates the freedom of speech or of the press, and is unconstitutionally vague. Justice Sotomayor is apparently recused. This could be an opportunity for the Court to revisit FCC v. Pacifica Foundation (1978) and Red Lion Broadcasting v. FCC (1969), which held that the government has more power to control radio and television content than it has for newspapers (or, as cases since then have held, than it has for the Internet or cable television). In an earlier opinion in the same litigation, Justice Thomas stated his view that those cases should indeed be overruled on that point. (Of course, it’s possible that the Court could decide this case without revisiting those earlier precedents.)