Six justices -- Black, Douglas, Brennan, Marshall, Stewart and White -- found that the United States had not met the heavy burden required to impose prior restraint. But the number is misleading: In fact, the consensus was extremely fragile. This is reflected in the fact that the ruling itself was extremely brief, said almost nothing substantive and was handed down per curiam, or "by the court," rather than as an opinion written by a justice speaking for the rest of the majority. The fact that the ruling was issued per curiam reflected the fact that although the majority agreed that the government had not met the burden of justifying prior restraint, no five justices could agree on why it had not. As for the ruling itself, it was remarkably terse: It merely recited the precedential boilerplate that prior restraints come with a heavy presumption against their constitutional validity, and then added, "We agree." As First Amendment expert Rodney A. Smolla points out in an illuminating study of the case in his excellent book "Free Speech in an Open Society," "It is difficult to imagine an opinion of the Supreme Court in a landmark case saying less."

The court's inability to say anything substantive -- an inability that severely limited the case from serving as a precedent in future decisions -- clearly proceeded from the deep split within the majority. Only two justices, Black and Douglas -- the two most noted First Amendment "absolutists" in court history -- took the position that prior restraints could never be justified. A third justice, Brennan, allowed that there might in extremely rare circumstances be a national security exception, but he made it clear that the executive branch would have to come up with hard proof of immediate harm, not vague assertions. Justice Marshall steered a middle course.

The "absolutists," Black and Douglas, argued that the court should not even have heard oral arguments in the case -- it should have simply entered a summary judgment against the government. As Black wrote, "I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment."

On the opposite side of the spectrum, three justices -- Chief Justice Burger, Harlan and Blackmun -- dissented, arguing that the First Amendment's protection of speech was limited by another equally compelling interest, what Burger called "the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances -- a view I respect, but reject -- can find such cases as these to be simple or easy." The dissenting justices argued that the court had heard the case in "irresponsibly feverish" haste, making it impossible to determine whether the documents would actually harm national security. And in the dissenters' view, the executive branch's right to conduct foreign policy carried far more weight than the majority allowed.

Just as Black had issued a remarkable, personal rebuke of the executive branch, so Chief Justice Burger singled out the New York Times for harsh moral criticism. "To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought -- perhaps naively -- was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times." In sharp distinction to Black, who stated that the press's role was to "censure" the government, Burger argued that the Times, rather than disgracing itself by receiving stolen goods, should have played ball with the president -- what Smolla calls a "we're all in this together" position. In Burger's view, the press should work together with the executive branch -- which Burger implicitly argued could be trusted to behave honorably and honestly -- to determine whether national security was in danger.

That today Burger's position is more accepted and observed by the press itself than by the court is a development that does not bode well for those who share the Founders' views that a fair but independent and even adversarial press is the best bulwark against governmental abuse.

The dissenters took very seriously the government's claim that national security could be compromised. Ominously, Justice Blackmun closed his dissent by writing, "I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom 'the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,' to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests."

But it is the opinions written by the two justices who voted with the majority, but disagreed with their four brethren about the reasons, that truly reveal the fragility of the ruling. Justices White and Stewart both wrote that if Congress had passed specific and limited legislation upholding the government's right to prior restraint in such cases, they might have upheld the lower court's injunction. White wrote, "I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations. Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result."

White was wrong. The real-world consequences of the publication of the Pentagon Papers (not just the Times and Post but other publications also ran excerpts or synopses) vindicated the court's decision and undermined the arguments of those who said that publication of the papers would damage the public interest. The near-consensus among scholars and analysts is that the publication of the Pentagon Papers only embarrassed the government -- it did not damage America's security. Like the boy who cried wolf, the Nixon administration's heavy-handed invocation of national security only succeeded in raising skepticism about this all-too-convenient recourse of the executive branch -- and at least for a time, perhaps, tilted public, legislative and ultimately judicial opinion away from deference to such claims.

But the fault lines running beneath the court's murky decision remain, and could crack open at any time.

In one sense, that is as it should be. There is not, nor should there be, an unlimited right to free speech. As Justice Blackmun noted in his dissent, "First Amendment absolutism has never commanded a majority of this Court." The notorious case cited by Justice Oliver Wendell Holmes of someone falsely shouting "fire" in a crowded theater is the most obvious type of unprotected speech. Others include obscenity, false commercial speech, incitement to unlawful behavior, and defamation of a private person. But of all these exceptions to First Amendment protection, executive-branch claims of national security are perhaps the most difficult to evaluate, and thus reveal the most about justices' attitudes toward free speech and the state -- not just its right to suppress speech but its trustworthiness. Such claims pose a difficult question: Do the press's right to publish, and the public's inherent right to know, as a matter of principle outweigh generally untestable governmental claims that publication will harm national security?

For conservative jurists, this question throws into sharp relief the same tension or ambiguity that besets conservative politicians: the schism between a libertarian ideology rooted in Jefferson, Adam Smith and John Stuart Mill and an authoritarian ideology rooted in Christianity, nationalism and patriarchy. Whenever a judge is torn in two directions, the decisive factor is often his or her attitude to the parties or concepts involved in the dispute -- whether a given administration, a war, or the notion of free speech.

(The case of Justice Scalia vividly illustrates this point. Scalia bitterly opposed the court's landmark decision last week striking down Texas's sodomy statute, arguing that the majority overreached the law in their desire to accommodate the "so-called homosexual agenda." But Scalia himself has not been averse to bending the rules in a far more troubling way -- and departing from his entire previous judicial philosophy -- to accommodate the more immediate agenda of putting a fellow right-winger in the White House. Just as Scalia's lofty arguments about judicial restraint proved dispensable when Gore was threatening to become president, so his rage at the Texas ruling proceeds more from his deeply rooted belief that gays do not deserve the transcendental, historic rights the court saw fit to give them, than any grand principle.)

The Pentagon Papers case did create a precedent in support of free speech. But it is a murky and shaky precedent, subject to the vicissitudes of history, the willingness of future justices to defer to the executive branch, and the tough-mindedness of journalists. (That governments will continue to use national security to attempt to restrict civil liberties is a foregone conclusion.) And optimism is not warranted.

Justice Black's argument that the public has the right to all information, because only the marketplace of ideas assures the security of the nation -- a notion that ultimately goes back to John Stuart Mill's "On Liberty" -- may have resonated for the Founders, but it is increasingly out of step with our security-obsessed age. Today, when the president's spokesman tells us we should "all watch what we say," John Ashcroft is in charge of law enforcement and the PATRIOT Act in force, Black's statement that "the guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic" sounds positively radical.

History shows that governmental claims that unfettered press freedom will harm national interests are unfounded. Transparency is a virtue the civilized world rightfully insists is a prerequisite for good governance. The United States has long been the world leader in free speech. Even now, during the endless "war on terrorism" -- especially during that war -- it must continue to practice what it preaches.

The moral of the Pentagon Papers case is that constant vigilance in defense of the First Amendment is necessary -- all the more so, as Chief Justice Hughes wrote many years ago, in time of war. The six justices who stood up to a sitting administration during wartime were the last line of defense against the unwarranted use of governmental power. There were powerful forces pulling at them: the siren songs of flag and war, the power of the presidency. But, though divided, they did not abandon their posts. And by so doing, they provided a signpost and a beacon for all Americans, who, in an age of fear, need to be reminded that presidents come and go, wars come and go, but the right of the press to publish, and the people to know, must not be allowed to perish.

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