In re Criminal Code 51.2.4 2025 SDCR 30

In re Article 51, Division 2, Subdivision 4 of the Criminal Code 2020 [2025] SDCR 30

Date of judgment	30th November 2025
Judges	Judge ppatpat Judge Terak Judge Brandmal
Held	Article 51, Division 2, Subdivision 4 of the Criminal Code 2020 is not unconstitutional
Ruling	3-0
Applicable precedent	Upholds In re Penalties and Tickets Act [2025] SDSC 17

MAJORITY OPINION by Judge ppatpat

(with Judge Terak agreeing in full and Judge Brandmal agreeing, except for [23] and [25])

Introduction

[1] The petitioner seeks judicial review of Article 51, Division 2, Subdivision 4 of the Criminal Code 2020. Petitioner alleges that this provision violates the constitutional freedom of association and an asserted “more fundamental” right to private life, and asks this Court to strike it down in its entirety.

[2] Article 51, Division 2, Subdivision 4 (“Article 51 II 4”) provides, in full:

Ҥ1. A person who associates with a Proscribed Organization, or any of its members, commits an offence.
§2. This subdivision does not apply to persons who represent a member of a Proscribed Organization in a court of law, and do not associate with the member or organization for any other reason.”  

Summary of Petitioner’s arguments

[3] Petitioner’s first contention is definitional: that “prohibiting someone from associating with another violates the freedom of association by definition.” They invoke the concept of “intimate association,” arguing that friendships, romantic relationships, and other private ties lie at the core of Article 18’s protection of freedom of association and thus cannot be made criminal merely because one party is a member of a Proscribed Organization.

[4] Secondly, petitioner argues that even if the Legislature can in principle restrict association, the challenged law does not satisfy the constitutional qualifier. Article 18 §1 of the Constitution allows restrictions “as may be necessary or expedient in the interest of the security of SimDemocracy and its citizens.” The petitioner insists that “simply interacting with” or “having an intimate association” with a terrorist, in a way unrelated to SimDemocracy or the organisation’s activities, is neither necessary nor expedient for security.

[5] Thirdly, petitioner invokes an unwritten “more fundamental” right to a private life outside SimDemocracy, including the right to be friends with members of Proscribed Organizations on other servers or in direct messages, so long as SimDemocracy and its citizens are not affected. This right is said to exist even if freedom of association, as such, can be restricted.

[6] Finally, petitioner suggests that the challenged law is void for vagueness and offends due process, because the term “associates with” is not defined and allegedly allows punishment for “simply being friends with someone who commits crimes or is doing something bad,” including hypothetical friendships with secret “irl terrorists” the citizen did not know about.

Summary of Respondent’s arguments

[7] The State answers that the challenged conduct is either not protected by freedom of association at all, or, alternatively, that any encroachment on association is authorised by Article 18 §1’s “necessary or expedient” clause.

[8] The State emphasises the statutory context. Article 51’s Division 2 deals with “Proscribed Organizations.” A Proscribed Organization is one that has been (a) found by a court to have engaged in preparing, planning, assisting in or fostering Designated Crimes, or (b) designated by the President, with institutional consent, as posing a credible and substantial threat to the safety of SimDemocracy or its citizens. Designated Crimes, listed in the Fourth Schedule, include offences like election fraud, doxxing, harassment and sexual harassment that “go to the heart of the SimDem democratic order and the rights and personal freedoms of its citizens.”

[9] Interestingly enough, the State further argues that “associates with” in the challenged law, read in context and in light of repealed former §2 and Articles 13–15 of the Criminal Code 2020, refers to support for terroristic aims that falls short of material assistance but is more than mere social proximity.

[10] On freedom of association, the State submits that the “association” protected by Article 18 §1 is the right of individuals to form and join groups in pursuit of common interests, and that the “association” criminalised by the challenged law is a different creature entirely: support for terroristic aims from outside the organisation’s formal structure. Even if the challenged law does encroach upon constitutional association, the State maintains that the encroachment is authorised because, for terrorism, the broadening of the term “associate” is “justified by the special and broad harm terrorism poses.”

[11] Finally, the State rejects the “void for vagueness” and separation-of-powers arguments, pointing out that the Legislature deliberately left “associates with” open-textured so courts can apply it to unforeseen modes of support, and that interpreting such terms is the judiciary’s job, not an invasion of legislative prerogative.

Considerations

[12] We begin with the Constitution, which the petitioner would have us treat as a one-sided promise, but which is in fact a whole sentence. Article 18 §1 provides that every person has the right to freedom of expression, including “freedom of peaceful assembly [and] freedom of association,” and then adds, in the same breath, that “the Legislature may impose such restrictions on the freedom of association as may be necessary or expedient in the interest of the security of SimDemocracy and its citizens.”

[13] Those last words are not a drafting error. They mean what they say. The People could have required that restrictions be strictly necessary, indispensable, least restrictive, and so on. They did not. They authorised restrictions that are “necessary or expedient” to security—a disjunctive standard that, in ordinary language, embraces measures that are convenient, suitable, or helpful to the stated end. While other requirements or limits to the restrictions could be imagined, like them having to be the least restrictive in a given circumstances, such is not the language chosen by the sovereign.

[14] We reject the argument that the restriction on associations with Proscribed Organizations are not “necessary or expedient” for the purposes of national security. The objective of restricting association with Proscribed Organizations is to prevent the perpetration of the Designated Crimes, as specifically enumerated by the Senate, or to prevent credible and substantial threats to national security. The word “expedient” means that the restriction simply has to be convenient to pass the test. Issuing criminal sanctions on such matters is convenient and thus satisfies the “expedient” standard.

[15] Petitioner’s argument on vagueness is rejected for being facially meritless. The court takes reference to the majority in In re Article 30 of the Civil Code 2025 [2025] SDCR 2 [19]-[23] for rejecting any void for vagueness standard, and upholds the precedent in In re Penalties and Tickets Act [2025] SDSC 17, that for something to be “due process” it merely needs to meet the standards for due process laid out in the Bill of Rights.

[16] We now turn to the definition of “association” in the challenged law, and how that interacts with the argued “fundamental right to a private life outside SimDemocracy”.

[17] The first major consideration is that there is no textual carve-out in the challenged law for “but not if you are just friends” or “unless it’s on an offsite server.” Applying a systematic analysis of the legal body of SimDemocracy, where the Legislature wanted an exception, it wrote one – for legal representation, and nothing else. Therefore, it now falls upon the Court to decide on the implied right argued for by the petitioner.

[18] The common meaning of implied is that which is suggested, but not directly expressed. As such, implied rights have to live in the shadow of express text, in this case, the Constitution.

[19] A right to “a private life outside SimDemocracy” cannot be implied from the text of the Constitution when the text itself grants a right to privacy. The implied right is rejected, but the arguments are considered under the ambit of Article 19 of the Constitution.

[20] My own concurring opinion in In re EO 152 took the broad chapeau of Article 19 (“every person shall have the right to personal privacy”) and gave it doctrinal shape. I characterised privacy as having three dimensions: decisional, informational, and presentational. That was an attempt to explain what “personal privacy” protects, not to create an unbounded “get-out-of-law-free” card for anything labelled “private life.” Even there, I was explicit that the “zone of liberty is not a sanctuary from all regulation” and that where the State enters that zone it must pursue “legitimate ends and lawful means,” not that it may never enter at all.

[21] Reference re Financial Privacy and Classification of Taubot refined that privacy doctrine and, frankly, fenced it in. The Court there unanimously held four things of direct relevance to this case:

[21.1] Firstly, that the Constitution “unequivocally” confers a general right to privacy.

[21.2] Secondly, that it confers a distinct right to protection of personal data.

[21.3] Thirdly, that it does not confer a right to financial privacy.

[21.4] Lastly, that taubot has no special status.

[22] To that end, the Financial Privacy Reference adopted a concrete test for Article 19 §1. For something to be protected by the right to personal privacy, two criteria must be satisfied, and objects satisfying both criteria receive “absolute immunity” from State interference under Article 19.

[22.1] There must be a reasonable expectation of privacy – interference by the State must “significantly and adversely affect the individual’s ability to freely and fully participate in SimDemocracy”; and

[22.2] There must be a lack of necessity for disclosure – the object of protection must not conflict with the State’s mandate to intervene where required to protect others’ rights, society as a whole, or SimDemocracy’s continued existence (i.e. the Article 29 limits).

[23] Put against that framework, the petitioner’s arguments fare poorly. Start with the first limb: does “being free to maintain off-site friendships with members of Proscribed Organizations” attract a reasonable expectation of privacy of the sort described? Plainly not. Preventing citizens from quietly associating with terrorists does not “significantly and adversely” impair their ability to participate in SimDemocracy; if anything, it protects everyone else’s ability to participate without being targeted. Whatever else sits in the core of personal privacy, “my right to be friends with a Proscribed Organization’s members on another server” is not there.

[24] The second limb is even more fatal. Article 29 expressly states that even core rights may be limited “to protect the rights of others, the rights of society as a whole, or to ensure SimDemocracy’s continued existence.” The Financial Privacy Reference builds that limitation into its test: privacy ends where those interests begin. National security and counter-terrorism are the paradigm case of “rights of society as a whole” and “continued existence.” An asserted right that directly blocks the State from addressing terrorist association – by declaring off-site friendship with terrorists untouchable – collides head-on with Article 29. Under the Financial Privacy test, it is simply ineligible for privacy protection.

[25] The same case also answers the petitioner’s broader move: it squarely rejected the idea that every sphere of life we can label “private” automatically becomes constitutionally insulated. The Court declined to constitutionalise financial secrecy precisely because, while money is important, secretly moving it around was not so central to personhood that it should be removed from democratic control. If financial privacy – a much more intuitive candidate – is not implied, then privacy for off-platform terrorist friendships is a non-starter.

[25.1] The state is unable to ever investigate the truth of any claim of a romantic relationship, a friendship or any other such claimed relation between two people. Truly attempting to do so would breach a person's real life, which would be in violation of not only constitutional law but the ToS as higher law. Thus the state needs to limit itself to addressing the outer forms of a relationship which can be observed and proven in a court of law. Namely the interaction between people, presence in shared spaces, topics observed discussed and similar facts which can be objectively proven. Allowing a person to proclaim a relationship to be of a heightened protected sphere would allow every bad actor to escape the law by simple declaration. On the other hand, the state may not attempt to breach or infer what can not be observed or learned directly when it comes to determine if a conversation might be specially privileged.

[26] The petitioner’s arguments are simply incompatible with the structure of the Constitution. Where privacy and security collide in this way, the text the People actually adopted gives the Legislature room to criminalise even “private” association with terrorists. The courts are not at liberty to take that room away.

Verdict

[27] For the reasons above, the court finds that Article 51, Division 2, Subdivision 4 of the Criminal Code 2020 is constitutional.

CONCURRING OPINION by Judge ppatpat

[28] I join the Court’s opinion in full as I wrote it. I write separately because the majority, quite properly focused on doctrine and text, is more patient with the petitioner’s theory than it deserves. Someone should say plainly what is going on here.

[29] Passim, the petitioner has consistently insisted that “being friends” with someone in a Proscribed Organization must be off-limits to the criminal law. That is rhetoric, not legal doctrine. Friendship is not a purely internal emotion; it is a pattern of conduct. When your “friend” is a terrorist, the State is not constitutionally required to pretend that this is a sacrosanct bubble of intimacy. It is, quite obviously, explicitly, or implicitly part of the organisation’s support structure. Even if not directly supporting, showing implicit acceptance is antithetical to the legislative intent of suppressing terrorist organisations.

[30] The crucial point that the petitioner never confronts is that terrorist organisations do not operate on their own. They operate through networks of loyalty, social cover, and quiet cooperation. Friends give them safe channels, plausible deniability, introductions, and the sense of normalcy that lets them burrow into a community. A law that tells citizens, “once an organisation is Proscribed, you may not be friends with its members,” is not some wild overreach. It is a rational decision to cut off one of the main arteries through which these groups survive.

[31] I will state the matter plainly, because the petitioner will not. Under SimDemocracy’s legal order, being friends with terrorists is indeed criminal. That is not some misfire of the constitutional system; it is the system working exactly as designed. The People wrote a Constitution that allows expedient restrictions on association for security. The Legislature used that power to say, in effect, “if you choose terrorists as your associates, you have chosen to step outside the protection of ordinary associative liberty.” Courts do not get to reverse that bargain because they would have drafted a gentler one.

[32] In effect, the petitioner has asked this Court to discover a right to keep terrorists as friends and to be immune from consequence so long as the coffee is drunk, the memes are posted, or the bot commands are issued on the “right” server. That is not constitutional law. That is an attempt to turn the Bill of Rights into a suicide note.

[33] A “Proscribed Organization” is not the neighbourhood chess club. It is an organisation formally found to be involved in Designated Crimes, or formally designated as a credible and substantial threat to the safety of SimDemocracy or its citizens. Those Designated Crimes are not Sim-parking tickets. They include doxxing, harassment, sexual harassment, sustained targeted abuse, attacks on the integrity of elections, and other conduct designed to make participation in this community frightening and dangerous.

[34] The petitioner’s position, stripped of its euphemisms about “intimate association” and “private life,” is that once an organisation has been found to be terroristic, the State may not criminalise the deliberate choice to stand socially alongside it and its members unless and until the “friend” is caught delivering or preparing the bomb. In no uncertain terms, I shall say this. The right to privacy does not allow for individuals to make pipe bombs in their homes without the State going in.

[35] In fact, that is an astonishing proposition. It mistakes the cause for the effect. Terrorist violence does not spring from nowhere; it grows in the soil of support networks and sympathetic “friends” who offer cover and access.

[36] Terrorist groups are not scary because they are unpopular. They are scary because they are efficient: they coordinate harassment, they share doxxed information, they destroy reputations, they infiltrate institutions, they make ordinary participation a risk. They weaponise social relationships. The more “friends” they have – the more people willing to host them, talk to them, move with them between servers – the easier all of that becomes.

[37] Under the petitioner’s theory, the State can ban bombs but not buddies. The terrorist can be prosecuted once they dox, harass, or sabotage; but their friends, whose trust and cover made that possible, must be constitutionally untouchable unless the State can prove, message by message, exactly when “friendship” crossed the invisible line into “material support.” That is not a theory of rights; it is a theory of paralysis.

[38] It is also morally inverted. The victims of terror in SimDemocracy are the people driven out of the community, silenced, humiliated, and sometimes genuinely endangered in real life. Their “private lives” are not less worthy of protection than the private chats of those who choose to ally themselves, socially or operationally, with the people doing the damage. To elevate the latter’s claimed privacy above the former’s safety is to forget whose Constitution this is.

[39] When the Legislature says, “If you knowingly associate with a Proscribed Organization or its members, you commit an offence,” it is not engaging in some abstract philosophical exercise. It is drawing a line that every citizen can understand: once an organisation has been formally branded a terrorist threat, you do not get to keep its members as your inner circle and then act surprised when the law takes an interest. That is how you deter people from being the willing social scaffolding of terror.

[40] The petitioner’s response is to say: “But what if I am only friends, and I never help them with terrorism?” That objection dissolves on contact with reality. No terrorist group keeps a neat spreadsheet of which conversations are “terrorism-related” and which are “purely social.” Trust and normalisation – the feeling that the terrorist friend is “just one of us” – is itself a resource. It makes recruitment easier, leaks more likely, and accountability harder. Friendship is not neutral when the friend is part of a Proscribed Organization.

[41] Terrorists are bad – not in the playground sense of “bad kids,” but in the precise, legal sense that they are enemies of the community’s most basic commitments: that people should be able to participate without being stalked, doxxed, or mobbed; that elections should not be manipulated from the shadows; that public servants should not have to choose between their safety and their service. They are bad because they make SimDemocracy unsafe for everyone else.

[42] A constitutional order that cannot distinguish between the privacy interests of the victims of terrorism and the social preferences of those who choose to befriend terrorists has lost the plot. Frankly, it appalls me to see that we have such positions in our polity. However, it is the beauty of our constitutional order that the same rights that prevent such lunacy also allow for such lunacy to be expressed.

[43] The majority is correct to refuse. I concur wholeheartedly in the judgment, and I add this only to make the point unmistakable: in SimDemocracy, you are free to choose your friends – but if you choose terrorists, the Constitution does not promise to protect you from the consequences.

CONCURRING OPINION by Judge Terak

[44] Agreeing mostly with the concurrence I want to add the following fundamental consideration for the question of the limits the law can place upon a person, in relation to association.

[45] Where humans interact and form a community, a need for rules arises. Where a person chooses to interact with a community, they also subjugate themselves to these rules. Where a person does not wish to be subject to a community's rules, as long as these rules adhere to higher law, they are free to cease their interaction with a community. In this, Online Political Simulations are far better to evade than real life jurisdictions, which bind people by their laws through mere presence within their territory.

[46] If any person does not wish to cease contact with a person that engages in potential terror activities in SimDemocracy, they may choose which is more important to them if in this a conflict with the law arises. The association with an organisation hostile to a community, or the participation in the same community under attack by the organisation.

CONCURRING OPINION by Judge brandmal

[47] I disagree with the majority's finding that there is no reasonable expectation for friend- and romantic relationships. They do so by saying it specifically does not extend to relationships with terrorists. In doing so the majority mixes up the two stages of the privacy test. With who exactly the relationship is and whether that justifies breaching said privacy is not a question of the reasonable expectation of privacy, but rather one of the state having a mandate to intervene. It must be stated clearly, there is a reasonable expectation that the “imaginary” state of SimDem (I deeply apologise for this heresy) does not investigate through its institutions like the SDBI either your friendships or your love life. To do so, there must be an incredibly compelling state interest, which there is in this case, as the majority explained correctly.

[48] The argument in [25] is not convincing either. I can, for the life of me, not understand why the majority sees a greater expectation of privacy attached to imaginary money than to with who and how you associate romantically. That argument is just wrong, as one of those is much more attached to your personality and obviously more private.

[49] For these reasons I concur.