By chance, the judge was a Nixon appointee, Murray I. Gurfein, who was sitting on the bench for the first day. Judge Gurfein ruled against the government -- and he did so with words of rare forcefulness and eloquence. "The security of the Nation is not at the ramparts alone," Gurfein wrote. "Security also lies in the values of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority to preserve the even greater values of freedom of expression and the right of the people to know."

The government appealed to two circuit courts -- by now the Washington Post had begun publishing summaries of the material, further complicating the case -- one of which ruled against it, one for it. The Supreme Court granted certiorari (i.e., agreed to hear the appeal) on June 25, issuing a temporary stay that halted publication while it heard the case. The case, like Bush vs. Gore, moved with lightning speed: The Court heard arguments the next day and issued its ruling -- New York Times Co. vs. United States -- on June 30. The entire case took only 18 days from first publication to final ruling -- one of the fastest resolutions of a major case in U.S. history. This extraordinary speed bears witness to the seriousness with which the court regards governmental attempts to impose so-called prior restraints on the press, and its awareness that such cases must be resolved quickly.

If the Pentagon Papers were published, White House lawyers warned, America's security would be gravely imperiled, in part because other nations would be reluctant to deal with us if they thought their conversations would be revealed. Against this argument, the Times lawyers invoked constitutional bedrock, one of the principles upon which the United States is founded: Congress shall make no law ... abridging the freedom of speech, or of the press ..."

In one of the most anticipated rulings in court history -- 1,500 people lined up for the court's 174 seats -- the court ruled for the Times and against the government. In his passionate opinion for the majority, rightfully considered one of the great affirmations of the First Amendment in U.S. history, Justice Hugo Black excoriated the administration for bringing the case. "[F]or the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country. In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment ... I can imagine no greater perversion of history."

The elderly justice from Alabama had overcome his youthful Ku Klux Klan membership and earlier legal missteps -- he upheld the incarceration of Japanese-Americans during World War II -- to become a great jurist, an immovable opponent of McCarthyite hysteria and perhaps the most powerful defender of the First Amendment in court history. Black was in poor health, suffering from severe headaches: He died only three months after the case was decided. But at the end of his life, there was still power in the aging lion's legal claws -- and he used them to smite the executive branch that had tried to muzzle the press.

"In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy," Black thundered. "The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government."

And then Black penned a line that has become one of the most famous in Court history -- and echoes powerfully today, as the controversy simmers over Iraq's weapons of mass destruction: "And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell."

In today's climate of acquiescence to the commander in chief, when the establishment and much of the country apparently finds the idea that the president could have lied to the country too frightening or unseemly to entertain, it is difficult to imagine a Supreme Court justice flatly accusing the government of lying about why it sent American troops "off to foreign lands to die of foreign fevers and foreign shot and shell." But Black had actually wanted to use still stronger language. As Roger K. Newman recounts in his biography of the justice, while working on his opinion, Black woke up his wife, Elizabeth, in the middle of the night and asked her: "How would it be if I said that the press should be free to prevent presidents from sending American boys to foreign lands to be murdered?" She wisely told him she thought that would be a bad idea. So instead, in a twist of historic irony, he drew inspiration from one of his favorite songs, a fire-breathing old Southern ditty called "I Am a Good Old Rebel." "Three hundred thousand Yankees lie stiff in Southern dust/ We got three hundred thousand before they conquered us/ They died of Southern fever, Southern steel and shot/ And I wish it was three million instead of what we got." Black had formerly sung the song to friends and family, but stopped when George Wallace started fighting integration. Now he made use of the old Confederate song to defend the right of the press to reveal information about a war he opposed.

Black held no particular affection for the press itself. It was freedom he cherished -- the freedom to speak that he believed the Founding Fathers had granted Americans in perpetuity and virtually without exception, freedom that he wrote was the last best check against governmental tyranny. Which makes his extraordinary tribute to the Times and the Post doubly meaningful: "In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do."

At issue in the decision was prior restraint -- the power of the state to prevent the press from publishing something, as opposed to punishing it after it has published. One of the seminal Supreme Court cases involving prior restraint was a 1931 case, Near vs. Minnesota. Minnesota courts had enjoined a scandal sheet called the Saturday Press from publishing future issues. Chief Justice Hughes reversed, stating that the "chief purpose" of the First Amendment was to prevent prior restraints on publishing and making it clear that after-publication punishment was greatly preferable. This and other legal precedents imposed what the court called a "heavy presumption against [the] constitutional validity" of any governmental attempt at prior restraint and thus a "heavy burden of showing justification for the imposition of such a restraint."

But Near vs. Minnesota also contained a brief passage that included a potential exception, on grounds of national security, to its ruling against prior restraints. Writing that the "protection even as to previous restraint is not absolutely unlimited," the court said that the "government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."

The issue of national security would weigh heavily on the minds of at least five of the justices -- and contribute to deep divisions not only between the six justices who voted with the majority and the three who opposed, but within the majority itself.

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