In re Criminal Code 56a 2026 SDCR 41
Article 56a Question of Law [2026] SDCR 41
| Date | 23rd April 2026 |
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| Held |
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| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Judge Matt Cheney
(With Judge Tech Support and Judge Zepz agreeing)
Introduction
[1] This case comes before the Court as a question of law from the Inferior Courts, asking if loaded and severe slurs (like the n-word) are strict liability crimes, and if so, does that violate Freedom of Expression.
On Strict Liability
[2] To get started, we would like to define the term ‘strict liability’, so we have a better starting point to go from. Defined through precedent in SD v Dick head68 [2019] Crim 8, a strict liability offense is a crime that does not require mens rea, or intent. An example used in the judgement cited is driving your car without insurance, no matter what your intention was when you did it, if caught doing so you are guilty of operating an uninsured vehicle.
[3] From here, the question can be rephrased to ask, under current law are there any mens rea arguments to be made that allow for the usage of a slur? To better equip us for an answer we will now take a glimpse at Article 56a of the Criminal Code.
- [3.1] §1 defines hate speech as “submitting, posting, or relaying speech that is upsetting, demeaning, or humiliating about a person’s or a group of people's protected characteristics, and had the intention to upset, demean, or humiliate, or acted carelessly or recklessly as to whether their actions would upset, demean, or humiliate.” §2 then goes on to state that “... a person shall always be considered as submitting, posting, or relaying speech that is upsetting, demeaning, or humiliating about a person’s or group of people's protected characteristics if they use a slur, which is any derogatory or insulting term applied to a group of persons classed by a protected characteristic.”
- [3.2] In simpler terms, if someone uses a slur, the first half of what must be proven within this statute has been fulfilled. There can be no argument about if the speech was upsetting, demeaning, or humiliating, the only argument to be made is if a term falls under the definition of ‘slur’.
[4] This leaves us with the second half of the statutory requirement, which is having the “intention to upset, demean, or humiliate, or acting carelessly or recklessly as to whether their actions would upset, demean, or humiliate.” This is very openly requiring mens rea for the crime of hate speech, however the question is specific to the use of “severe slurs such as the n-word” so we must look at it through this lens.
[5] This statute gives us two ways for it to be fulfilled, either intention to upset, demean, or humiliate, or carelessness or recklessness as to whether their action would be upsetting, demeaning, or humiliating. Intention itself is obviously something that can be argued, however in the case of severe slurs, the second option in the statute becomes important.
[6] Recklessness is defined in SD v g470 [2025] Crim 113 as a state in which a person “has sufficient knowledge that an action might have a consequence but still decides to execute the action”. This is expanded upon in SD v 1391131817905619055 [2025] Crim 116 by stating that by making a “conscious choice that disregards an obvious, substantial risk that viewers… would feel alarm or distress”. Certain slurs and derogatory terms carry too much historical context and are so universally known to be hateful that any person using them in a public setting would, by those definitions, be acting carelessly or recklessly as to whether their action would be considered upsetting, demeaning, or humiliating.
[7] Due to the nature of this statute and the nuance that can come with a Hate Speech trial, we find it pertinent to specify a standard to be used to determine if a slur would fall under this category of automatically reaching the threshold of “careless or reckless”.
- [7.1] This standard shall be to determine whether or not the slur at hand can reasonably be decoupled from its historical or current day usage as a hateful or demeaning term. If the term cannot be disassociated with this context, it reaches the threshold and becomes a strict liability offense. (See SD v Mooklyn (Remanded) [2023] Crim 1 [7]).
On if Article 56a Violates Article 18 §3 of the Constitution
[8] We now come to the second question, one of Constitutionality. Article 18 §3 says “no criminal conviction or impeachment shall be made purely on the basis of speech and the exercising of free speech, barring cases where the exercising of such free speech violates or attempts to violate the constitutional rights of other citizens”.
[9] For the answer to this question, we look to In re Restraining Order Act [2019] SDSC 1, which establishes that Article 18 exists to protect a person's right to express political and religious beliefs; if speech does not convey a meaningful political or religious belief or opinion, it does not fall under the protections of Article 18. It is clear to the reasonable person and any reasonable person that slurs or hate speech in general would not fall under these protections, which is obvious since these actions are already criminalized.
Verdict
[10] Usage of severe slurs are strict liability offenses, and Article 56a remains Constitutional.
Dicta
[11] Thank you to the panel for dealing with my insanity as my mind slowly succumbed to the gravity of the dark side, and thank you to TMC for existing. Also rest in peace notcom, SDCR 41 misses you.