the cases holding that broadcast (non-cable) television and radio are less protected by the First Amendment than newspapers and other media. (Red Lion upheld the Fairness Doctrine and the Personal Attack Rule, which would be unconstitutional as to newspapers, and Pacifica upheld a restriction on using the "Seven Dirty Words" on radio and television.)

This came in Justice Thomas's concurrence in FCC v. Fox Television, which reversed the Second Circuit's decision that set aside a fine for the use of vulgarity on a television program. But the Court's decision explicitly rested only the administrative law question — whether the FCC's judgment was within its statutory authority, especially given earlier FCC decisions to the contrary — and left the constitutional question for the Second Circuit to consider, perhaps to be reviewed later by the Supreme Court. It's thus possible that Fox will ultimately win, and get the entire scheme of restricting vulgarity on radio and television set aside, assuming of course four other Justices share Justice Thomas's view. (Recall that Justice Stevens, who voted for Fox on the administrative law question here, was the author of the Pacifica plurality, and continues to think that Pacifica was correctly decided; on the other hand, he would read it considerably more narrowly than the FCC does, and may well conclude that Fox should win on its First Amendment claim on the facts of this case.)

I might blog more when I read the case in detail later today, but for now I thought I'd note this.

UPDATE: I've changed the parenthetical about Justice Stevens; when I originally wrote the post, I hadn't read the case in detail (as the preceding paragraph notes), and hadn't noticed Justice Stevens' footnote 5. Thanks to commenter Jacob Berlove for first pointing this out to me.