In 2006, Christopher Hitchens was invited by the University of Toronto's Hart House Debating Club to voice his opinion on the subject of the evening's debate: Be it resolved: Freedom of speech includes the freedom to hate.
The entire debate can be found here https://tvo.org/video/archive/big-ide...
In 2006, Christopher Hitchens was invited by the University of Toronto's Hart House Debating Club to voice his opinion on the subject of the evening's debate: Be it resolved: Freedom of speech includes the freedom to hate.
The entire debate can be found here https://tvo.org/video/archive/big-ide...
The "crowded theater" phrase and the original "clear and present danger" test were developed by Holmes in Schenck v. U.S. (1918). That case did not involve the Yiddish-speaking socialists that Hitchens references, but rather the Philadelphia Socialist Party that had distributed 15k flyers encouraging men not to comply with the WWI draft. Holmes delivered the opinion for a unanimous court upholding the convictions with the CPD test. The decision is a mess, and Hitchens is right to point out its pathetic reasoning.
The case of Yiddish-speaking socialists is a subsequent one, Abrams v. U.S. (1919). That case upheld the convictions of Russian immigrants who opposed Wilson's meddling with the Russian Revolution on the side of the Russian government. Hitchens is definitely correct that they were the ones identifying a "fire" in a "crowded theater" (i.e., speaking about Wilson's authoritarian foreign policy), especially as insular minorities who had already lived under a draconian regime. But it should be noted that Holmes dissented in that case, arguing that the CPD test had not been met - the speech was too tenuous with any probable harm. So, Hitchens might be overshooting a little.
That said, his overarching point that Holmes' test was on the wrong footing is absolutely correct. And the upshot is the same: who decides on "harmful" speech is the right question to ask in all of these cases.