For the first time since Thomas Jefferson, Speaker Nancy Pelosi invited nonsensical and irrelevant ad hominem attacks to be both spoken on the floor of the House and to be entered into the permanent congressional record. Sadly, her invitation was eagerly accepted. Freshman Rep. Cori Bush, D-Mo., called President Trump “a white supremacist president,” and “white supremacist-in-chief,” while Rep. Rashida Tlaib, D-Mich., called him “racist-in-chief.” //

“Fighting words” are ad hominem. They attack the person without addressing the argument. //

Oral arguments began on Feb. 22, 1971, with Chief Justice Warren Burger instructing Cohen’s lawyer, Melville Nimmer, that the offensive word in question need not be uttered in the hallowed halls of the Supreme Court. Seconds later, in his opening argument, Nimmer said, “What this young man did was to walk through a courthouse corridor wearing a jacket on which were inscribed the words, ‘F— the Draft.’” Presumably, this was the first time in history that such a vile word was uttered in that setting.

For his open defiance of the chief justice, Nimmer was not cited for contempt of court. Rather, he walked away with a 5-4 ruling that overturned 180 years of First Amendment jurisprudence. As Justice John Harlan famously wrote for the majority: “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” //

Were this the only sad consequence of Cohen v. California, it would be bad enough. But things have devolved further still. In 1977, Cohen was cited as a reason to permit Nazis to chant Jewish insults and carry the swastika through Skokie, Illinois — a community of Holocaust survivors.

In 1978, the Federal Communications Commission lost its ability to keep obscenities off the air; and in 1986 public schools lost their authority to prevent students from screaming “F— you,” in the halls of education. In 1992 the court unanimously struck down long-standing prohibitions against the Ku Klux Klan’s cross-burning threats.

Beginning in the mid-’90s, the advent of so-called “hate speech laws” closed the circle. Now certain ideas cannot be expressed without public penalty. Florists, bakers, clerks, and printers have been devastated by lost business, government fines, and legal costs just for expressing the idea that the words “male” and “female” are not interchangeable. Meanwhile, the law permits them to be assailed with nonsensical words like, “hater,” “bigot,” and “Nazi.”

Such words do not serve as a “step to the truth.” Rather, they are meant to insult and incite economic and social violence against their targets.

It’s been a half-century since the Warren court poisoned popular discourse, there yet remain public places that prohibit the ad hominem and the obscene. For instance, rules in the U.S. House of Representatives dating back to Thomas Jefferson require members to “Avoid characterizing another Member’s personal intent or motives and discussing personalities,” and to “Refrain from speaking disrespectfully of the Speaker, other Members, the President or Vice President.” //

Unfortunately, however, those very rules are now under assault. The House Committee on Rules met on Jan. 12, 2021, and adopted an ad hoc rule change providing “that the prohibition against personality in debate with respect to references to the President shall not apply during consideration of H. Res. 21 or any special order of business providing for the consideration of H. Res. 24.”

Thus, rules against ad hominem attacks on President Donald J. Trump were suspended during floor debates on Vice President Pence’s invocation of the 25 Amendment (H. Res. 21), and the motion to impeach President Trump (H. Res. 24).

Thanks to Pelosi, the language of the school-yard bully has now entered our highest deliberative body. As Cohen led to the cancel culture in the public square, so name-calling on the House floor led immediately to the suppression of unfavored ideas in Congress. Within hours, eight senators and 139 representatives who had followed congressional decorum in calling for an investigation of election fraud suddenly found themselves threatened with censure and expulsion merely for expressing the idea.

In 1942, Justice Murphy asserted, as a matter of timeless common sense, that the First Amendment protects the expression and defense of every idea as a valuable step towards discovering the truth. Now, only 80 years later, the case is reversed. Nonsensical, vile, and intentionally injurious words are fully protected speech while the expression of certain ideas — even in the kindest possible terms — is strictly forbidden. Instead of protecting true free speech, we’ve crushed the speech that matters most: the articulation and testing of the truth.