There once was a very annoying man named Walter Chaplinsky. He was a Jehovah’s Witness, but that is not what made him annoying. One spring day in 1940, he stood on a sidewalk in Rochester, New Hampshire, passing out pamphlets and calling other religions “a racket.” That was not what made him annoying either. The problem was that after causing enough of a public scene to block traffic, and incite an onlooker to attempt to impale him with a flagpole, Chaplinsky was brought to police headquarters where he saw the town marshal and allegedly called him “a God damned racketeer” and “a damned Fascist.”

Chaplinsky denied bringing God into the matter, but he stuck to his guns in calling the marshal a Fascist racketeer. He was ultimately convicted for violating a statue against using “any offensive, derisive or annoying word to anyone who is lawfully in any street or public place.” The Supreme Court upheld the arrest in a unanimous decision, with Justice Frank Murphy writing: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

Thus was borne the doctrine of “fighting words,” or speech that is not protected by the First Amendment. But the definition of what constitutes fighting words has shifted many times over the years, mostly at the state level. Texas tried to prosecute flag-burners in the 1980s and St. Paul, Minnesota tried to prosecute cross-burners in the 1990s, but those cases met firm opposition from Supreme Court judges as diverse as William Brennan and Antonin Scalia.

That leaves America without a clear definition of protected speech when the First Amendment is currently on the line in major cases involving the media, academia, immigration, and pretty much of every other area of public life you can think of.

I can imagine conservative readers lamenting the changes since Chaplinsky and wishing that Trump’s former chief of staff John Kelly and the former chairman of the Joint Chiefs of Staff Mark Miley could be prosecuted for calling the current president a fascist. But Trump himself has enjoyed these free speech protections liberally, long before the Supreme Court gave him broad immunity as president. During the 2016 campaign, he urged supporters to “knock the crap out of” protestors “getting ready to throw a tomato” and said he wanted to hit a Michael Bloomberg “so hard his head would spin,” after the more successful businessman dared to criticize Trump at the Democratic Convention.

Most famously, Trump told his supporters on January 6^th: “we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore,” right before they invaded the Capitol and tried to prevent the orderly transition of power to the elected Biden administration.

Trump’s lawyers insisted these explicit orders to fight – with a “peacefully” thrown in – were protected by the First Amendment. The argument became moot when their client was re-elected and the election subversion case brought by Special Counsel Jack Smith was dismissed.

Now, those same First Amendment protections are being shredded by Trump’s administration as he tries to deport Mahmoud Khalil for being a pro-Palestinian activist, sues CBS for alleged deceptive editing of Kamala Harris interview on “60 Minutes,” threatens to declare CNN illegal, and strong-arms what amounts to loyalty oaths out of weak-willed universities and white-shoe laws.

Before we go down the road to yet another super-obvious Trump Hypocrisy screed, let’s stop for a moment and ask what the opposition’s role is here. Because some of the Progressive Left, while not legally attacking the First Amendment to the same degree, had earlier tried to police free speech and failed miserably. I’m not saying Woke and Cancel Culture are the only reasons Donald Trump got re-elected. But these elements picked a fight that they could never hope to win. And I believe that giving up on free speech as an unshakeable core principle is the worst political mistake of my lifetime.

In their excellent book THE CODDLING OF THE AMERICAN MIND, authors Greg Lukianoff and Jonathan Haidt provide a concise history of the evolution of several destructive ideas that began on American college campuses: “What doesn’t kill you makes you weaker; always trust your feelings; and life is a battle between good people and evil people.”

From these half-baked notions came the principle that language is violence and should be policed accordingly. Now let’s pause for a moment and admit there are a lot of racist, sexist bastards out there. In fact, many of them are in charge right now. And part of the reason they got into power is that they claimed they were in favor of speaking plainly and honestly, without, censorship and a lot of voters identified with the way they talked.

Those voters did not identify with the students and faculty who hounded a Claremont McKenna dean into resigning because she told a troubled student she very much wanted to help her even though she did not “fit our mold.” They did not identify with the film executives and film producers who withdrew their support from a documentary called “Jihad Rehab,” because the cultural winds started blowing in the other direction and they suddenly realized the director was a white woman. They did not identify with the New York Times staffers who demanded the resignations of Editorial Page Editor James Bennet for publishing a piece by right-wing Senator Tom Cotton and reporter Donald G. McNeil Jr. for repeating a racial epithet a high school student had used in a personal conversation.

I’m sure many readers can come up with their own personal examples of such professional Jacobinism. The common element is that the fired and ostracized were, very often, allies of those baying for their blood. Their scalps were claimed because they were vulnerable by being in close proximity. Now that Trump and his allies are in control, those mobs have largely fallen silent.

It now seems clear that relatively few people favored this atmosphere of censoriousness. And many who opposed it were cowed into temporary abeyance. It was the wrong fight at the wrong time, and now we’re all paying the price because the true autocrats are in control.

The balance of power won’t be restored until liberals learn to fight back and tell like it is. Almost everyone believes in Free Speech, at least for themselves. The Left used to believe in it as well. Liberals pushed the Supreme Court to expand its protections of speech after the Second World War. The Free Speech Movement started on the campus of the University California, Berkeley, and was an important influence on the civil rights and anti-war movements of the 1960s. Yet the Democratic Party has become a toxic brand and part of the reason is that voters associate it with restricting what you can say (misinformation is a stickier subject, for another discussion).

Lenny Bruce, who knew a thing or two about free speech, once said, “The liberals can understand everything except people who don’t understand them.”

Maybe it’s time they wised up.