Abstract

The scope of the right to freedom of expression, including the regulation of hate speech and an appropriate threshold test for a legislated hate-speech offence, are contentious issues. In this article the legitimacy of hate-speech regulation in South Africa is explored from a jurisprudential perspective by examining the rationales justifying the constitutional entrenchment of freedom of expression. The aim is to establish a clear and meaningful standard to guide the discussion around the reform of South Africa’s hate-speech laws and to create a conceptual framework for the development of an appropriate threshold test for a criminal hate-speech regulator. The article demonstrates that the correct approach to South African free-speech theory is to emphasise the social dimension of freedom of expression and the impact its exercise has on the rights of others, including the dignity of target groups, and the advancement of social connection, cohesion and diversity. A communitarian model of free speech is recommended; one that is reflective of the transformative constitutional mandate and which provides an enabling framework to facilitate the enactment of constitutionally sound legislation for the regulation of hate speech in South Africa.