Hate Speech in the United States and South Africa: A Legal and Comparative Analysis
Johan D. van der Vyver · SUN PRESS eBooks · 2017
My academic career is deeply rooted in distant countries that are worlds apart from one another.I am a member of the faculty in the School of Law of Emory University in Atlanta, Georgia, in the United States of America, and an Extraordinary Professor in the Department of Private Law of the University of Pretoria in South Africa.As far as freedom of speech is concerned, the systems that prevail in the United States and in South Africa are also in substance worlds apart.Whereas freedom of speech is a basic norm of the American constitutional system, South African law is by contrast founded on the protection of human dignity and consequently places radical constraints on the publication of defamatory language; and in order to counteract group rivalries amongst traditionally divided population groups, the "new South Africa" includes radical constraints on speech and action that could be offensive to any of the racial, ethnic, religious or linguistic factions within the South African community. FREEDOM OF SPEECH IN THE UNITED STATESConstitutional protection of human rights in the United States is in essence founded on libertarian principles in which the First Amendment freedoms (freedom of religion, freedom of speech, freedom of the press and the right to petition the Government for a redress of grievances) are of special significance.For very special historical reasons, the First Amendment freedoms, notably freedom of speech, constitute die Grundnorm (the basic norm) of the entire system of human rights protection. 2 If a conflict between different constitutional rights and freedoms were to emerge, the courts must always attempt to "balance" those conflicting rights or freedoms so as to afford equal protection to all of them.However, should freedom of speech be in irreconcilable conflict with any of the other constitutionally protected rights and freedoms, it would prevail.The First Amendment freedoms have thus been proclaimed to be the "preferred freedoms", defined by Chief Justice Earl Warren as "a scale of 1