Why Judge Thomas Sided With the Playboy Channel

First Amendment activists and indolent fraternity boys, rejoice: America is once again free to listen in on the grunts and groans of inadequately scrambled adult programming. The Supreme Court on Monday sided with Playboy magazine and its cable-TV arm, voting 5-4 to reject the part of the 1996 Communications Decency Act that forced cable systems to yank pornography if their scrambling technology was not sophisticated enough to protect children from so-called "signal bleed." The legislation dictated that any channel showing indecent material must either provide complete picture and sound blocking for non-subscribers or refrain from showing the channel altogether between 6 a.m. and 10 p.m., when children are most likely happen upon the sounds and images.

That ban, according to the Court's majority opinion, is too broad, stepping squarely on the toes of the First Amendment by committing what a lawyer for Playboy called "regulatory overkill." Justice Clarence Thomas, in a move that will no doubt earn him the undying gratitude of the nation's late-night television joke writers, surprised court observers by breaking from his usual position on the conservative wing of the court to join the majority opinion. Thomas' move to the left, however, was canceled out by another surprise: Normally liberal Justice Stephen Breyer sided with the minority and wrote a stinging dissension.

"The Court is absolutely to be commended for this decision," says TIME television writer James Poniewozik. "They've upheld the principle that we shouldn't restrict a type of programming to the entire population in order to protect a subset of that populace." Despite the huffing and puffing over the case, though, the whole issue is likely to become moot in a few years — industry analysts predict that digital scrambling technology will soon enable cable systems to completely block signals to non-subscribers.