Authored By: Pretty Nomfundo Mhlakwana
Pretty Nomfundo Mhlakwana
Abstract
Freedom of expression forms part of the foundational constitutional rights that creates democratic societies. However, the exercise of this right may result in conflicts with other fundamental rights such as equality and human dignity. This article will critically conduct a comparative legal analysis of the justifiable restrictions placed on freedom of expression against the South African right-balancing approach and the United States content-neutral models. The Constitution of the Republic of South Africa, 1996 formed in response of the former apartheid system, includes an explicit internal limitation (section 16(2)), which is designed to proactively prohibit hate speech and protect equality as underscored in the Qwelane judgment. Moreover, analyse how Jimmy Kimmel controversy surrounding his political commentary demonstrates that restrictions on hate speech depends on a nation’s commitment to equality and history.
The Limitations of Free Speech: South African and International Studies I Introduction
Freedom of expression is recognised universally as the bedrock or foundation of democratic governance and optimal human functioning or self-actualisation. Its implementation must be constantly balanced against other rights such as equality and dignity. Owing to various injustices and prejudices many countries have faced, the right of freedom of expression plays a crucial role. This right is not really a leeway or latitude for people to speak without consequence. Rather, it is a qualified constitutional guarantee fundamental for the functioning of an open and democratic society. Not only does this right plays a vital role domestically (South Africa), but it importance is even recognised worldwide. Globally, the significance of this right is enshrined in Article 19 of the Universal Declaration of Human Rights1and Article 10 of the European Convention on Human Rights (ECHR).2 Owing to the infamous apartheid regime that took place in South Africa, upholding this right is important as it carries the immense weight by signifying a clear and decisive departure from the oppressive censorship that defined the former apartheid system. The Constitution of the Republic of South Africa, 1996 contributed to this transformation. Hence, the right of freedom of expression is enshrined on section 16(1), where this liberty is broadly guaranteed as it includes artistic expression, freedom of the press and the right to both share and receive information.3
However, this constitutional promise or right is not absolute and not without any exceptions.4 Section 2 of the Constitution, clearly states that it is the supreme law of the country and any law or conduct that is inconsistent with is will be declared invalid.5 Consequently, this provision ensures that other important rights especially for those that had been victims of injustices and discrimination are safeguarded from being directly and indirectly infringed upon by others.6 These rights include equality, human dignity, and the advancement of non-racial, non-sexist society.7 The parameters of permissible expression rests precisely at the point of contention between the principles or values of collective equality and individual liberty. The hardship experienced in modern constitutional legal system regarding to implementation of this right does not lie in affirming it. However, it lies where the unlimited exercise of this right threatens or infringes upon the democratic values is supposed to uphold. This is highlighted in the S v Mamabolo case, where the Constitutional Court held that freedom of expression is of utmost importance, however expression that is excessively abusive or inflammatory can be limited in some instances.8 Therefore, this article will critically examine the importance of freedom of expression, but also demonstrating that no right is absolute as even the highly valued rights carry internal limitations that are defined by the necessity to protect other important constitutional values.
II How South African Legal System Balances Free Speech and Equality
The South African legal framework for limiting freedom of expression is distinguished by its pre-emptive and direct approach towards harmful speech, embodying an explicit internal limitation within the right itself.9 This contradicts laws that rely solely on the general limitations clause.10 As stated above, section 16(1) of the Constitution explicitly provides for the right that can be broadly interpreted.11 Whereas section 16(2) of the Constitution sets forth three different specific categories of expression to be entirely unprotected by the Constitution. This includes incitement of imminent violence, propaganda for war, and most importantly the advocacy of hatred that is based on ethnicity, race, gender, or religion, and that involves incitement to cause harm. It is important distinguish between the fact that section 36 of the Constitution sets forth the standard upon which the rights that are enshrined in the Bill of Rights can be legally limited. However, section 16(2) provides for exclusions that are not grounds for limitation as provided by section 36, they are forms of expressions that completely and wholly fall outside of the constitutional right.12 They are not considered in the Constitution because of their harmful nature in creating a democratic society.13 Section 16(2)(c) of the Constitution clearly prohibits hate speech, because its primary purpose is to redress or try to rectify the harm and unfairness of the former apartheid regime and create a country where everyone is treated equally and with respect.14
Moreover, the intersection of section 16(2) of the Constitution and section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) served as true limits of speech as they regulate hate speech civilly.15 The landmark case where this intersection was clarified and assessed is the Qwelane v South African Human Rights Commission and Another, which was adjudicated in the Constitutional Court. The case surrounded the profoundly derogatory and homophobic language written against the LGBTQI+ community by the journalist Jon Qwelane which was on the 2008 newspaper column comparing same- sex relationships to bestiality.16 The South African Human Rights Commission regarded this as hate speech under section 10(1) of PEPUDA. In return Qwelane contested the constitutionality of this provision on the grounds that its prohibition unjustifiably limited his right of freedom of expression under section 16 of the Constitution. The Constitutional Court had to balance the right of freedom of expression against the right to equality and dignity.17
The Constitutional Court delivered International Covenant on Civil and Political Rights (ICCPR) (999) UNTS 171 a unanimous judgement and held the existing laws regulating hate speech are too broad and lacked specificity because it prohibited or restricted speech merely for being “hurtful” or causing subjective offence. This was found to be unjustifiable infringement on free speech.18 This finding of the Court confirmed that even in a country that is dignity-focused, the threshold for limiting or restricting freedom of expression must be high and defined with precision.19 On the other hand, the Court upheld and reaffirmed the core of the prohibition and held that he article indeed constituted illegal hate speech under the remaining law as the statements explicitly demonstrated intention to propagate hatred and cause harm. It did this by reading down the legislation, aligning, and balancing the internal limitation in section 16(2)(c) of the Constitution with the statutory definition of hate speech.20 The Qwelane judgment explicitly demonstrated that the expression may lose its constitutional protection when it surpasses the line from a mere insult or offence into the domain of inciting harm based on prohibited characteristics or grounds and promoting hatred.21 This legal analysis firmly establishes the supremacy and importance of the constitutional rights to equality and human dignity over the right to expression they are in direct conflict with one another.
All the forms of expressions that are protected under section 16(1) and not considered under the internal exclusions of section 16(2), such as speech inciting public disorder, or defamation the general limitation clause under section 36 would apply. This limitation clause firmly requires that any law limiting a right has to be reasonable and justifiable in an open and democratic society based on equality, human dignity, and freedom.22 This is a strict or rigid proportionality assessment, which requires a balance of core factors, including the nature and importance of the right being limited, and whether less restrictive means are available to achieve the same purpose.23 The case of Print Media South Africa and Another v Minister of Home Affairs and Another, reinforced this framework powerfully as the Court invalidated provisions of the Films and Publications Act that authorised pre-publication administrative approval for certain materials.24 The Court held that censorship before publishing is excessively damaging to democracy and free media, therefore it should only be allowed under the most extreme or rare circumstances in order to uphold the significant role of the media as the essential safeguard or bulwark of democracy.25
III The United States Perspectives: Strong Protection for Free Speech
The South African model restricts harmful speech proactively before it spreads.26 Whereas the approach used in the United States prioritises the freedom of the speaker almost absolutely.27 The First Amendment to the United States Constitution simply states that Congress shall not make any law limiting the freedom of speech or of the press.28 This interpretation provides speech or expression the maximal protection possible rooted in the philosophy of completely restricting the state for regulating it.29 Under this rule the government must shield all speech even if the content is hateful, distasteful, or offensive it does not matter.30
In the United States there is clear line separating unprotected speech from protected speech and this is set incredibly high. The Brandenburg v Ohio case firmly established the definitive standard for restricting advocacy or political speech which is the imminent lawless action test.31 The test sets forth two instances where speech can be prohibited. Firstly, speech can only be prohibited of it is directed to producing or inciting imminent lawless action.32 Secondly, is speech being likely to produce or incite such action stated in the first leg of the test. However, in order for the test to be applicable there is high degree of temporal proximity and a clear chain of causation.33 This means that there is no protection provided to restrict hate speech unless the Brandenburg standard is satisfied or constitutes narrow and traditional exceptions such as true threats or fighting words.34 As a result of the United State only banning speech that incites immediate lawless action, a statement such as that made in the Qwelane case which in South Africa was found to constitute hate speech would nearly always be protected as political expression under the United States First Amendment, considering it does not incite immediate lawless violence.
IV The Jimmy Kimmel Controversy Relating to Free Speech
The recent controversy surrounding the American talk show host and comedian Jimmy Kimmel demonstrates how free speech is limited in the United States. In 2025, Kimmel faced intense political and public backlash that that led to his suspension following the controversial monologue addressing the assassination of the conservative activist Charlie Kirk. His comments which criticised political opponents for trying to weaponise the tragedy for political gain, received threats of regulatory action from Brendan Carr who is the Chairman of the Federal Communications Commission (FCC). Brendan Carr provided that the ABC/Disney as a private agency had a legal right to suspend Kimmel’s show demonstrating government pressure on a broadcaster. Despite Kimmel’s speech being protected under the First Amendment, it did not meet the Bandenburg test or threshold. Therefore, the threat led to private censorship, and this is why it was ABC/Disney that suspended him and not the government. This is because the First Amendment only applies to limiting state action and does not restrict companies from making editorial or employment decisions. Consequently, this displays how the United States free speech while broad in theory can be limited in practice because of corporate interests responding to financial or political pressure.35
V Legislations Regulating Hate Speech
The difference between the South African and United States approach is most evident when considering the intention of legislation in regulating hate speech. South Africa has expanded beyond civil remedies found under PEPUDA by enacting the Prevention and Combating of Hate Crimes and Hate Speech Act to criminalise hate speech.36 This Act further maintains South Africa’s dedication to human dignity by making it a criminal offence to propagate, publish, or advocate anything with the intention to promote hatred or incite harm, with penalties including up to three- or five-years imprisonment.
The criminalisation of hate speech stems from the belief that is widely held in Europe and reflected in the ECHR’s law, providing that certain categories of speech are so significantly destructive to the rights of vulnerable group of people and democratic value, and they must be entirely prohibited. The European Court of Human Rights permits restrictions on expression that violates either the rights of others or reputation. In return it applies the proportionality test that enable the member states a wide discretion (margin of appreciation) to restrict speech such as Holocaust denial and religious vilification, which is legally enforced in nations such as France and Germany.37 In contrast to the United States standard known as the Brandenburg test, the European approach focuses on keeping or maintaining public order and respecting the rights of the minority groups. It does this by allowing the government to regulate speech where there is a clear and explicit social need which is easier to meet and justify.
VI Recommendations
It is undisputed and universally acknowledged that freedom of expression serves as one of the crucial cornerstone or bedrock of democratic societies and as a precondition for the exercise of various other rights. However, the scope and limitation of this right should remain as a subject of an ongoing debate across national and international legal systems. It is evident that the United States remains as a leading example of a country that provides one of the rigorous protections under it First Amendment of its Constitution. This is because, there is minimal state intervention even in cases when there are controversial forms of speech.
Despite the nuanced approach and with reference to the stated examples above, it has been apparent that this right may lead to a plethora of issues despite promoting individual liberty and public forum where diverse ideas can be shared and received. The implementation of this right potentially exposes challenges especially within a society marked by a track-record of inequality, political polarisation, and digital transformation. The best way to tackle this issue is for South Africa to continue refining its policy and legal frameworks to ensure that freedom of expression contributes adequately to democratic participation while mitigating harm. This goal can be advanced through the development of clearer statutory guidelines on misinformation and on hate speech, education programmes and strengthening of independent regulatory institutions that foster responsible public dialogue.
Globally, treaties such as Article 19 of the UDHR and the International Covenant on Civil and Political Rights (ICCPR) acknowledges freedom of expression as an important universal human right.38 However, they also allow certain limitations that are required for the protection of the reputation or rights of others, public order, and national security. While both international law and South African law upholds the importance of freedom of expression, the exercise and the implementation must always be balanced against other various democratic imperatives such as social harmony and human dignity. Therefore, it is the responsibility of legal systems to adopt a proportional and contextual approach that recognises that unlimited speech can sometimes results to perpetuating harm. However, they must keep in mind that excessive limitations can undermine democracy. A proper structured policy and legal response, founded in constitutional values and international human rights standards remains indispensable to guarantee that freedom of expression continues to strengthen rather than divide democratic societies.
VII Conclusion
A comparative analysis of free speech limits demonstrates how different countries tackle the issue based on their history. Freedom of expression is crucial to a democratic system, permitting citizens of society to seek and share information and providing a strong institutional check against government. However, as highlighted above the necessary boundary of freedom of expression is determined by the need to safeguard competing fundamental constitutional rights such as reputation, dignity, and national security. In South Africa, the Constitution place equality and dignity above unlimited free speech. This stems from the history of past unfair discrimination under the apartheid system, which is why the country has powerful laws against hate speech, such as section 16(2), fortified by the new enacted criminal laws and the Qwelane judgement. These demonstrates how South Africa is committed to social change and creating an equal society where everyone is equally respected. In contrast, the United States highly values free speech because of its history of resisting government control. However, this leads to people having to tolerate hateful or offensive speech. Europe takes a middle path approach by using a balanced approach that allows limits in speech when necessary to protect society. At the core, how a country sets the restriction of free speech reflects its foundational values.
Bibliography
Constitution:
Constitution of the Republic of South Africa, 1996.
Journal Articles:
Du Plessis P, ‘Freedom of Speech – Should Speech that Causes Harm be Free? An International and South African Perspective’ (2014) 5(23) Med J of Soc Scie 1363.
Treaty:
European Convention on Human Rights (ECHR) (1950) 213 UNTS 222
International Covenant on Civil and Political Rights (ICCPR) (999) UNTS 171 Universal Declaration of Human Rights GA Res 217 A (III), UN Doc A/810 (1948)
Cases:
Brandenburg v Ohio [1969] US 444
Handyside v United Kingdom [1976] Series A no 24, 1 EHRR 737
Print Media South Africa and Another v Minister of Home Affairs and Another [2012] ZACC 22
Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, 2021 (6) SA 579 (CC), 2022 (2) BCLR 129 (CC)
The State v Mamabolo [2001] ZACC 17, 2001 (3) SA 409 (CC), 2001 (5) BCLR 449 (CC) Internet Source:
Wheeler T, ‘Beyond Kimmel, the FCC Controversy Exposes a Larger Struggle over Free Speech’ (Brookings Institution, 23 September 2025) https://www.brookings.edu/articles/beyond-kimmel-the-fcc-controversy-exposes-a-larger struggle-over-free-speech/
Legislations:
Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023 Prevention of Unfair Discrimination Act 4 of 2000
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2 European Convention on Human Rights (ECHR) (1950) 213 UNTS 222, art 10.
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36 Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023.
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38 International Covenant on Civil and Political Rights (ICCPR) (999) UNTS 171
