Authored By: Busisiwe Nhlapo
University of South Africa
Introduction
Freedom of expression is often seen as a core feature of constitutional democracies.[1] It encourages open exchange of ideas, supports democratic participation, and helps hold governments accountable.[2] However, exercising this freedom can be legally complex when speech harms others’ dignity, equality, or safety.[3] The rise of online communication, political polarization, and identity-based violence has deepened ongoing debates about how far governments should go in regulating hate speech without compromising essential democratic freedoms.[4]
South Africa and the United States take different constitutional approaches to balancing free expression and hate speech laws.[5] South Africa’s Constitution protects freedom of expression, but section 16(2) excludes certain kinds of harmful speech from protection.[6] The U.S. Constitution’s First Amendment gives speech broader protection, and limits are allowed only within a few narrow, long-recognized exceptions developed by the courts over time.[7]
This article argues that both countries treat freedom of expression as central to democracy, but South Africa’s constitutional structure is more balanced because it links free expression to dignity, equality, and social justice. The United States protects speech more strongly, which does safeguard individual liberty, but it also makes it harder for the state to address harmful hate speech.[8] The South African approach fits better with diverse societies that need to protect freedom while also addressing past inequality and preventing discriminatory harm.
The discussion starts with the constitutional and statutory rules on freedom of expression in each country. It then examines key court decisions that have shaped hate speech law before comparing the constitutional ideas behind each system. The article ends with recommendations for how hate speech law should develop in constitutional democracies.
Constitutional and Legislative Framework
South Africa and the United States treat freedom of expression differently because of their histories and constitutional priorities. Both countries protect free speech because it matters for democracy, but they draw the line in different places when speech threatens equality, dignity, or public order. South Africa uses a constitutional structure that weighs rights against each other. The United States usually gives speech the strongest protection and leaves less room for limits.
South Africa: a rights-based approach to freedom of expression
Section 16(1) of the Constitution of the Republic of South Africa, 1996, protects freedom of expression. It covers freedom of the press and other media, the right to receive and share information or ideas, artistic freedom, academic freedom, and scientific research.[9] But this right is not absolute.
Section 16(2) excludes three kinds of expression from constitutional protection:
“(a) propaganda for war;
(b) incitement of imminent violence; and
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”[10]
Those exclusions were added for a reason. South Africa’s Constitution was written after apartheid, when racist speech and propaganda were used to justify oppression and exclusion. The drafters knew that letting all speech go unchecked could undermine the democratic order they were trying to build.[11]
Section 16 also has to be read together with the rest of the Bill of Rights. Section 9 protects equality and bans unfair discrimination, while section 10 says everyone has inherent dignity and the right to have that dignity respected and protected.[12] South African constitutional law does not treat freedom of expression as the top right above all others. It looks at the whole picture and weighs the rights involved.
The Constitutional Court has said this clearly. In Islamic Unity Convention v Independent Broadcasting Authority, the Court held that freedom of expression matters to democracy because it supports truth-seeking, personal development, and political participation.[13] At the same time, it made clear that speech excluded by section 16(2) is not protected.
Hate speech is also dealt with in legislation. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) gives effect to sections 9 and 10 of the Constitution by banning certain forms of hate speech and allowing civil remedies in Equality Courts.[14] PEPUDA is aimed at more than punishment. It supports equality, stops discrimination, and reduces social division through remedies and education.The Constitutional
Court’s recent judgment in Qwelane v South African Human Rights Commission significantly clarified the relationship between section 16(2) and PEPUDA.[15] The Court held that the statutory prohibition on hate speech must be interpreted consistently with constitutional values while confirming that legislation may regulate harmful expression beyond the precise wording of section 16(2), provided that such limitations satisfy the general limitation clause contained in section 36 of the Constitution. The judgment demonstrates the Court’s commitment to balancing expressive freedom with the constitutional imperative of protecting vulnerable groups from serious discriminatory harm.
United States: The Primacy of the First Amendment
The constitutional position in the United States differs considerably. The First Amendment to the United States Constitution provides that:
“Congress shall make no law… abridging the freedom of speech, or of the press.”[16]
Although the wording appears absolute, the United States Supreme Court has recognised a limited number of historically established exceptions, including incitement to imminent lawless action, true threats, obscenity, defamation, and fighting words.[17] Outside these narrowly defined categories, however, speech generally remains constitutionally protected regardless of how offensive or hateful it may be.
This broad protection stems from the philosophical belief that governmental regulation of ideas presents a greater danger to democracy than offensive speech itself. The American constitutional tradition therefore relies heavily upon the “marketplace of ideas” theory, under which false or hateful ideas should ordinarily be countered through public debate rather than state censorship.[18]
The modern standard governing incitement was established in Brandenburg v Ohio, where the Supreme Court held that advocacy of violence may be prohibited only where it is directed to inciting or producing imminent lawless action and is likely to produce such action.[19] This stringent test significantly restricts governmental authority to regulate extremist or hateful expression unless an immediate threat of unlawful conduct exists.
Similarly, in R.A.V. v City of St Paul, the Supreme Court invalidated a municipal hate speech ordinance that prohibited symbols such as burning crosses and swastikas because it impermissibly discriminated on the basis of viewpoint. The Court reasoned that government may not prohibit speech merely because it expresses disfavoured ideas.
More recently, the Court reaffirmed this principle in Matal v Tam, where it held that the First Amendment protects even speech that many members of society consider offensive, emphasising that viewpoint discrimination is generally incompatible with constitutional guarantees of free expression.
Consequently, unlike South Africa, the United States has no general constitutional prohibition against hate speech. Instead, hateful expression remains protected unless it falls within one of the recognised First Amendment exceptions. This constitutional philosophy reflects a longstanding preference for safeguarding expressive liberty over governmental regulation of offensive ideas.
Comparative Observations
Although both constitutional systems recognise freedom of expression as fundamental to democracy, they pursue different constitutional objectives. South Africa conceives expressive freedom as one right among several equally important constitutional values that must coexist with dignity, equality, and social justice. The United States, by contrast, places exceptional constitutional weight on protecting speech from governmental interference, even where that speech is deeply offensive.
These contrasting approaches reveal differing understandings of constitutional democracy itself. South Africa’s post-apartheid Constitution seeks to transform society by addressing historical injustice and protecting vulnerable communities from discriminatory harm. The United States Constitution, shaped by a strong tradition of distrust toward governmental censorship, prioritises limiting state power and preserving individual autonomy.
These competing constitutional philosophies provide the foundation for the judicial approaches examined in the following section, where the leading decisions of both jurisdictions demonstrate how constitutional principles have been translated into practical legal standards.
III. Conclusion
The comparative analysis undertaken in this article demonstrates that South Africa and the United States pursue fundamentally different constitutional approaches to reconciling freedom of expression with the regulation of hate speech. While both jurisdictions acknowledge the indispensable role of free expression in sustaining democratic governance, their constitutional priorities diverge significantly. The United States places primary emphasis on safeguarding individual liberty by limiting governmental interference with speech, whereas South Africa adopts a transformative constitutional framework that seeks to balance expressive freedom with the equally important constitutional values of human dignity, equality, and social justice.
This article has argued that the South African approach provides a more balanced and context-sensitive model for regulating hate speech. By expressly excluding advocacy of hatred that constitutes incitement to cause harm from constitutional protection and supplementing constitutional safeguards through legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, South African law acknowledges that certain forms of expression may undermine the democratic participation and equal dignity of vulnerable communities. At the same time, constitutional protections for legitimate political discourse remain essential to ensuring that hate speech legislation does not become a mechanism for suppressing unpopular opinions or restricting democratic debate.
Conversely, the United States’ strong commitment to the First Amendment has played a vital role in protecting political dissent and preventing governmental censorship. However, its limited capacity to regulate harmful hate speech has generated continuing debate regarding whether existing constitutional doctrine adequately addresses the realities of discrimination and the rapid dissemination of harmful expression through digital platforms.
It is therefore submitted that constitutional democracies should strive to preserve robust freedom of expression while recognising that democratic participation depends equally upon protecting the dignity, equality, and security of all persons. As societies become increasingly interconnected through digital communication, courts and legislatures will continue to face the complex challenge of ensuring that constitutional rights evolve in a manner that preserves both liberty and democratic inclusivity.
Bibliography
Legislation
South Africa
Constitution of the Republic of South Africa, 1996.
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
United States
US Constitution amend I.
Cases
South Africa
Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC).
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC).
Qwelane v South African Human Rights Commission and Another 2022 (6) SA 579 (CC).
S v Makwanyane 1995 (3) SA 391 (CC).
United States
Brandenburg v Ohio 395 US 444 (1969).
Chaplinsky v New Hampshire 315 US 568 (1942).
Matal v Tam 582 US 218 (2017).
RAV v City of St Paul 505 US 377 (1992).
Texas v Johnson 491 US 397 (1989).
Books
Citron DK, Hate Crimes in Cyberspace (Harvard University Press 2014).
Dworkin R, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996).
Emerson TI, The System of Freedom of Expression (Random House 1970).
Matsuda MJ, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Westview Press 1993).
Meiklejohn A, Political Freedom: The Constitutional Powers of the People (Oxford University Press 1960).
Waldron J, The Harm in Hate Speech (Harvard University Press 2012).
Woolman S and Bishop M (eds), Constitutional Law of South Africa (2nd edn, Juta 2013).
Journal Articles
Albertyn C and Goldblatt B, ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 South African Journal on Human Rights 248.
Klaaren J and Albertyn C, ‘The Constitutional Court and the Right to Equality’ in Hugh Corder and others (eds), Democracy and the Judiciary (SiberInk 2015).
Matsuda MJ, ‘Public Response to Racist Speech: Considering the Victim’s Story’ (1989) 87 Michigan Law Review 2320.
[1] Islamic Unity v Independent Broadcasting Authority 2002 (4) SA 294 (CC) para 27; New York Times Co v Sullivan 375 US 254 (1964) 269-70.
[2] South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) para 7; Thomas I Emerson, The System of Freedom of Expression (Random House) 6-9.
[3] Constitution of the Republic of South Africa, 1996 s 9,10 and 16; Jeremy Waldron, The Harm in Hate Speech (Harvard University Press 2012)
[4] Danielle Keats Citron, Hate Crimes in Cyberspace (Harvard University Press 2014) 18-31.
[5] Eric Barendt, Freedom of Speech (2nd edn, OUP 2005) p 173-179.
[6] Constitution of the Republic of South Africa, 1996 s16; Islamic Unity Convention paras 127-33.
[7] Brandenburg v Ohio 395 US 444 (1969); RAV v City of St Paul 505 US 377 (1992); Matal v Tam 582 US 218 (2017).
[8] Ronal Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996) 195-201.
[9] Constitution of the Republic of South Africa, 1996, s 16(1).
[10] Ibid
[11] Stuart Woolman and Michael Bishop (eds), Constitutional Law of South Africa (2nd edn, Juta 2013) ch 42.
[12] Constition of the Republic of South Africa 1996, s 9-10.
[13] Islamic Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) paras 27-33.
[14] Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10-12.
[15] Qwelane v South African Human Rights Commission and Another 2002 (6) SA 579 (CC)
[16] US Const amend I
[17] Chaplinsky v New Hampshire 315 US 568 (1942)
[18] Thomas Emerson, The System of Freedom of Expression.
[19] Brandenburg v Ohio
