In re EO 152-04 2025 SDCR 8
In re EO 152-04 [2025] SDCR 8
| Date | 7th October 2025 |
| Judges |
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| Held |
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| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Judge ppatpat
(with Judge Terak and Chief Judge Benbookworm agreeing)
Introduction
[1] This case concerns a command about identity. Executive Order 152-04 requires all cabinet members to replace their chosen profile picture with an image posted by “soggy car bot” in a public channel, and it states that the command will repeal itself at the end of the 152nd presidential term.
[2] Petitioner relies on In re 42nd Presidential Election [2020] SDSC 14 for the principles that (i) one cannot be removed from office because the requirements to hold it were changed after appointment, and (ii) any such requirement is unlawful if it contradicts a higher power (Constitution/Statute).
[3] The respondent waived their argumentation in favour of a speedy response.
Verdict
[4] The challenged executive order is unconstitutional.
CONCURRING OPINION by Judge ppatpat
On the Right to Privacy
[A1] I write separately because, while I concur in the outcome reached by my colleagues, I respectfully feel that it is necessary to go further and elucidate my exact thoughts on why the right to privacy is paramount in this matter.
[A2] The Constitution of SimDemocracy places within the protection of law a realm of personal autonomy and dignity. Among the guarantees there set down is the Right to Privacy: “Every person shall have the right to personal privacy.” I believe that EO 152-04 infringes that right and is unconstitutional.
[A3] The Constitution’s guarantee of privacy is not a mere catalogue of data rules; it is a structural promise. It secures for each person a zone of liberty, a zone of protection—a line, discernible in principle and administrable in practice—at which the individual may say to the Government: beyond this line you may not go. This line does not withdraw the person from civic life; it preserves the person within it.
[A4] Privacy has three interlocking dimensions. First, decisional privacy: the freedom to make intimate choices about self and life without state compulsion. Second, informational privacy: control over acquisition, use, and disclosure of personal information. Third, presentational privacy: authority over the signs and symbols by which one presents the self to others. Together they define the protected precincts of personhood.
[A5] The zone of liberty is not a sanctuary from all regulation. It is a boundary that cabins regulation to legitimate ends and lawful means. Where the State proposes to enter that zone, it must carry a heavy burden. Power stops where personhood begins.
[A6] The act of choosing your own profile picture is one of your momentous acts of self-definition. The profile image itself functions in this community as the immediate signifier of the self. It is the person’s first word in our shared civic conversation. To compel, by executive fiat, the replacement of that identifier with an image sourced from a bot in a public forum is not a trivial directive for administrative neatness. It is an intrusion into the core of personal presentation and self-definition.
[A7] As such, it falls upon this court to tell the Executive that this is the line that they will not cross. For the reasons above, I concur.
CONCURRING OPINION by Judge Terak
On the right to expression
[B1] The right to freely express oneself is a justifiably highly protected right in the Constitution. Art. 18 §1. Constitution mandates that every person has the right to freedom of expression. The Constitution goes on to list rights that are part or attached to the right of freedom of expression, but the central right of free expression stands on its own.
[B2] The central freedom of expression is not very defined. Chiefly the question remains, what is covered under “expression”. In re Restraining Order Act [2019] SDSC 1 [15] clarifies that freedom of expression covers a citizen's right to express political or religious beliefs while speech that violates other people's rights directly and in violation of the ToS and most importantly does not deliver an opinion or a belief. SD v g470 [2025] Crim 113 [18] establishes political expression as at least speech that is aimed at partaking in the political process. Other judicial decisions move along these same lines. The outer limits of what is covered under expression are not defined.
[B3] Expression is the act of communicating a position from the inner personal sphere of each person upon an outer sphere. May this be only upon another person, a group of people or the entire community (or in case of posting on Reddit, upon the whole world). Expression does not require receipt. Thus the act of expressing itself and the expression are protected by this right. The expression need not be received, or such a receipt be verified, for the protection to apply.
[B4] Applying the Doctrine of higher law: Any Expression that violates higher law (e.a. real world legal obligations, laws or ToS can not be covered under the constitutional protection.
[B5] Applying the constitutional limit. The constitution itself limits expression where it concerns the freedom of association. Such limitations may only be imposed by the Legislature.
[B6] Applying these facts upon the case at hand leads to a clear result. Choosing a name and a profile picture is a fundamental interaction with the Community. The first thing upon joining a user does, or can do, is choosing their display name and their profile picture. Many users often change these to express ideas, allegiances, or partake in events. Each of these decisions communicates an inner stance the user holds upon a group of other users, thus fundamentally is protected expression. Restrictions to this protection can be imposed where the state needs to comply with legal needs. For example names featuring hate speech or profile pictures depicting illegal content may be reasons to remove a user or modify a username. The same test as established in In re Restraining Order Act [2019] SDSC 1 [15] can be applied to non-speech expression.
[B7] In this case, the order issued was not targeted to change illegal profile pictures or necessary to make the state comply with a legal need. There is further no other statutory reason to establish such an order. The order is a clear violation of the protected freedom of expression and thus illegal. For this reason I concur with the decision of this court.
CONCURRING OPINION by Chief Judge Benbookworm
Grappling with the other concurrences
[C1] In the spirit of ex parte thesigmasquad, it looks like this case has resulted in four separate opinions being published. I concur with my colleagues in judgment but not in reasoning.
[C2] Judge ppatpat seeks to stretch the right of privacy beyond any notion of sense, by shoe horning what is fundamentally a defense of free speech in order to avoid grappling with In re Restraining Order Act [2019] SDSC 1 (In re ROA), as shown by his lack of citations to anything. However, this does have some merit, as changing profile pictures would prevent a user from private participation in SimDemocracy, by effectively broadcasting their membership to other servers.
[C3] While I agree more with Judge Terak than with Judge ppatpat, I believe that In re ROA binds our hands and has limited the freedom of speech more than I would have if evaluating the case from first principles. From In re ROA [15]: “Freedom of expression, fundamentally, covers a citizen’s right to freely express their political and religious beliefs. However, there are certain forms of expression that do not legitimately convey any form of opinion or belief.”
- [C3.1] Changing your profile to a cat picture conveys neither political nor religious beliefs. It conveys little to no opinion or belief of any kind. Until the Supreme Court significantly re-interprets In re ROA, this is the law of the land.
[C4] I greatly lament the speed at which this case proceeded, but since none of this will end up binding anyway given the number of dissents, I will present a few other reasons why this executive order is blatantly unconstitutional, that have citations and do not run afoul of binding precedent.
[C5] The President’s executive authority does not include the ability to legislate, but more so to direct the operations of the executive branch within existing legislation. This is supported by In re War and Peace Act 2024 [2025] SDSC 1 [27] interpreting what is currently Article 5 of the Constitution. While this is an order to subordinates, it has no relation to the faithful execution of the law. This is likely the most narrow way to resolve this case.
Slavery and forced labor
[C6] There is another important perspective to consider: Article 25§1 of the Constitution prohibits forced labor. However, case law on this right is lacking. SD v fortnitewfortnitew [2025] Crim 117 [12.1] (Crim 117) has applicability, but was written by me. Writ of Prohibition - Lucas v Department of Justice [2025] SDIC 8 (Lucas v DOJ) grapples with the idea, but was struck down by the Supreme Court without touching on the merits. Until the Supreme Court actually addresses the merits, I will accept the underlying reasoning, as they are well-written and persuasive. (See the postscript from SD v thesigmasquad (Remanded) [2025] Crim 38 for more of my thoughts regarding Supreme Court inaction.)
[C7] While on first glance changing your profile picture may seem an even easier task than having to answer questions, one must consider the underlying functionalities of Discord. Making such a change would affect a user’s appearance across all servers in which they participate, some of which may be of a serious nature or have a different roleplay theme where a “soggy cat” profile picture would be disruptive.
[C8] In order to change a per-server profile, the user must have a Nitro subscription. While free trials do exist, a user may have previously used theirs and would have to pay money to do so. As brought up in Crim 117, the average active SimDemocracy user (including cabinet members) is a teenager, who may have zero disposable income, and/or live in an underbanked region of the world without easy access to digital financial transactions as a minor.
[C9] To obtain a Nitro subscription would require real world labor, not a minor task. This is not an in-game fine, nor is SimDemocracy a lawful external government with power to issue fines using real currency. This is unacceptable.
[C10] Executive Order 152-04 is unconstitutional on numerous grounds. I concur judgment, but not in reasoning.