It is a testament to an embarrassment of legal talent on the Supreme Court these days that the disagreements between two distinguished jurists reaching the same conclusion can be such a joy to parse. Such is the case in the decision released yesterday in the case of Wisconsin Right to Life v. FEC. Chief Justice Roberts wrote the majority opinion, and Justice Scalia concurred in part — and the differences in their opinions are telling.

Mr. Roberts penned a majority opinion that a Wisconsin anti-abortion group’s ads should not have been censored by the Federal Election Commission, acting under the auspices of the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold. The ads, highlighting Senator Feingold’s opposition to some of President Bush’s judicial appointees, were slated to run in the days leading up to Mr. Feingold facing the voters of his state for reelection.

That, in and of itself, Mr. Roberts said, was not enough to classify them as “sham” issue ads, which is what supporters of speech restrictions call them (or, in the legal parlance, “express advocacy “). Such ads, supporters of speech restrictions reckon, are designed solely with the devious purpose in mind of supporting or opposing candidate’s reelection. Drawing such distinctions is difficult, Mr. Roberts said, and “where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

Yet Mr. Roberts fails to follow his logic to its logical conclusion. Instead of recognizing off the bat that the distinctions the Legislature has asked the Executive and Judicial branches to parse are simply unparseable, he gives the task another go, decreeing that: “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Which, alas, depends on whether one’s definition of reasonable is reasonable.

It takes Mr. Scalia to get to where the Court needs to go in interpreting the position in which McCain-Feingold has placed the court. While deference (Mr. Roberts might call it “judicial modesty”) is always due the Legislature, as the repository of the will of the people in our democratic system, if the court has a role, it is to protect those freedoms set out by the Founders in the Constitution and the Bill of Rights.

Thus, to err on the side of free speech in this case would mean to strike down the ad ban immediately. Mr. Alito’s concurring opinion recognizes that the Roberts test may be insufficient, saying that “If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech … we will presumably be asked in a future case to reconsider.” Mr. Scalia points out, this wait-and-see approach makes little sense. “How will we know that would-be speakers have been chilled and have not spoken?” he asks. “If a tree does not fall in the forest, can we hear the sound it would have made had it fallen?”

The decision in this case itself shows the peril in which the court has left the right to speak. Wisconsin Right to Life wished to speak in a constitutionally protected way, and yet its right to speak was violated by Congress, the FEC, and the courts. Those wondering how many more plaintiffs must come before the Supreme Court before the situation is rectified can hope that Mr. Roberts gets all this and is simply biding his time before making a more decisive move. At the conclusion of his opinion, he touches on language so rarely seen in the court’s First Amendment jurisprudence — the First Amendment itself.

Roberts quotes the mighty First and rejects an absolutist approach. He notes that the court ruled, in a case captioned after Senator McConnell, its plaintiff, that “express advocacy of a candidate or his opponent by a corporation shortly before an election may be prohibited …” He reckons the court has “no occasion to revisit that determination today.”

But then Mr. Roberts goes on to write that “when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban — the issue we do have to decide — we give the benefit of the doubt to speech, not censorship. The First Amendment’s command that ‘Congress shall make no law . . . abridging the freedom of speech’ demands at least that.” We like the phrase “at least.” It suggests that the chief justice of the United States has more up his sleeve and invites the lovers of the First Amendment to continue to press their case as the long battle rages on to regain the right for all persons under the law, individuals and corporations, to contend in the great fray of our democracy.