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.