San Diego International Law Journal


David G. Barnum

Document Type



This Article will examine the role that the danger test has played in the decisions of American courts and, more recently, in the decisions of British courts and the enforcement organs of the European Convention. Part I will briefly trace the immediate Anglo-American constitutional background from which the danger test emerged. It particular, it will examine the way in which the common law offense of seditious libel was defined by British judges and judicial commentators in the late nineteenth century. Part II will focus on the evolution in American law of judicial attempts to articulate both a "content-based" and an "effects-based" approach to imposing restrictions on the government's power to punish antigovernment speech. A common theme of content-based approaches has been an insistence that government cannot punish speech unless it consists of "direct incitement" to unlawful action. The dominant but not exclusive effects-based approach to protecting speech has been the application of the "clear and present danger" test. Part III will explore the use by British and European judges of content-based and effects-based approaches to protecting speech. From its inception, the danger test has had a complex and uneasy relationship with judicial approaches to protecting speech that focus on the content of speech rather than its consequences or effects. As the test begins to find occasional adherents among non-American courts and judges, that relationship is once again attracting attention and generating controversy.