In re Treaty of Exploe §9 2026 SDSC 10
Summary Decision - In re §9 of the Treaty of Exploe Exploe §9 [2026] SDSC 10
(formerly [2025] SDSC 43)
| Date of judgment | 1st April 2026 |
| Justices |
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| Held |
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| Ruling | 4-1 |
| Applicable precedent |
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MAJORITY OPINION by Justice Muggy
(with Chief Justice Ed, Justice Ivy Cactus, and Justice Terak agreeing and Justice TheLittleSparty dissenting without opinion)
Introduction
[1] Originally meant to be assigned to Syndicality, later used as a training case for a clerk position that never came to fruition, this case, moot as ever, has the Petitioner seeking review of §9 of the Treaty of Exploe (herein “the Treaty”), the treaty which ended the war between SimDemocracy and the Bicamel Republic of Exploetopia, doubly enacting the charter for the new colony of the Bicamel Republic of SimDemocracy. Simply put, the petition which has landed on my proverbial desk is another case of the State not being able to conduct foreign policy in a manner compliant with the Constitution, and the basic principles which have existed in our nation’s case law and statutes for ages. Given this is a decision on foreign policy, there is still somehow bound to be some interesting bits thrown in simply because we have to.
[2] At the roots of the petition, the Petitioner brings up two major points when it comes to the unconstitutionality of §9, being inconsistencies with Dominax273 (Appellant) v State of SimDemocracy (Respondent) [2025] SDCR 1, and being unable to abide by the Constitution. This is due to §9 of the Treaty allowing for reclaimed speech in the colony.
Summary of the Petition
[3] The Petitioner utilizes Dominax273 (Appellant) v State of SimDemocracy (Respondent) [2025] SDCR 1 as their primary source of arguments, drawing up various considerations made by the Court of Review in said verdict, which are:
- [3.1] Reclaimed language requires the user to be part of a particular racial, ethnic, or social group, such as a bisexual woman using the “f slur”. This then requires the State to verify whether individuals who claim to be using language in a reclaimed fashion are of that racial, ethnic, or social group, something expressly forbidden, as it would require individuals to essentially doxx themselves in order to use reclaimed speech, and gives way to unequal enforcement of the law.
- [3.2] If reclaimed language were allowed, it would violate the Right to Equality Before the Law, Article 17 of the Constitution, due to some individuals basing their defense on unidentifiable characteristics, creating two “tiers” in the justice system, people who can use reclaimed speech as a legal defense due to being in a specific group, and those who cannot.
[4] The Petitioner also draws on the bounds of speech allowed by the Terms of Service, noting that no binding precedent has been set elaborating on its limits.
On Burdens of Proof and the Right to Privacy
[5] To begin, we must consider that the State’s criminalization of hate speech is, at the very minimum, mandated by the Discord Terms of Service, because if it weren’t, then the existence of the State would be at risk due to non-compliance with the platform.
[6] With §9, the Treaty allows for reclaimed language, which means that the State has the burden of ensuring that an individual is of a specific group before prosecuting for hate speech, making it necessary to create a burden of proof which individuals can fulfill in order to prove that they are of a specific group, and further allowing for the membership of that group to act as a legal defense against hate speech.
[7] The burden on the State to create a burden of proof for proving that an individual is of a specific group is covered extensively in Dominax273 (Appellant) v State of SimDemocracy (Respondent) [2025] SDCR 1, which states that the State can never set a compliant burden of proof due to the pseudonymous nature of SimDemocracy, and requiring too much would pave the way for the State to require citizens to doxx themselves in order to use reclaimed language.
[8] When it comes to the burden of proof, the State is incredibly limited, as it can not require the collection of personal data, per the Right to Privacy, and while specific individuals may waive their rights, the State imposing that as a burden on the citizenry in order use reclaimed speech would be an unconstitutional breach of privacy.
- [8.1] It should be noted that if the State were to make the burden of proof rather relaxed, such as just requiring a sworn affidavit, that it would effectively make the criminalization of hate speech pointless, as any individual can write an affidavit stating that they are of a specific racial, ethnic, or social group while not being of that group.
- [8.2] While the waters certainly get murky with these types of questions, it should additionally be noted that when such burdens of proof are imposed by the State, they must follow Constitutional frameworks. Though, when it comes to specific circumstances described in the Terms of Service, like an individual disclosing their age and a server having to ban them if they say they’re under 13 or bar them from NSFW channels if they’re under 18, then the burden of proof set by the Terms of Service holds precedence due to interests of safety and the continued existence of the State, as explored in In re NSFW Discord Channels [2020] SDSC 16.
[9] As the State cannot presently enforce the legalization of reclaimed speech, §9 of the Treaty is already inconsistent with the Right to Privacy, and is unconstitutional, first and foremost, for that reason.
On Infringements on Equality Before the Law
[10] While there are certainly inconsistencies with the Right to Privacy, the court would still like to determine whether there is an infringement on the Right to Equality Before the Law. To those ends, we must first consider whether there is an unequal treatment of two or more groups.
- [10.1] This principle is primarily observed in In re Synd Hire Birdish Pls Act [2025] SDSC 31, and we can firmly say that it is happening because the Treaty splits the citizenry into two groups: those who can reclaim language, and those who cannot (indeed, it does so many times, creating distinct classes for every slur).
[11] As SimDemocracy is an egalitarian society, if two groups are being treated unequally, a court should assume that the law invoking that unequal treatment is unconstitutional, but may apply a test to shore up that conclusion—
- [11.1] If we’ve found that separate groups are being formed based on a standard, we then move to the first limb of the substantive test, being whether or not there is a reasonable basis for the State to make these groups distinct. This is due to there often being times where distinguishing groups is reasonable, such as only bar certified attorneys being able to represent someone in court in the interests of the rights of the defendant.
- [11.1.1] It should be noted that there is a separate test to be applied if the distinctions or means of action are arbitrary, as explored in In re Appeal of Summary Ban - "mc uighilin" (Panzzrr) [2025] SDSC 2. Since the panzzrr test has been expanded upon in cases such as In re Article 6 s6 of the Executive Act 2023 [2025] SDSC 10 and In re Penalties and Tickets Act [2025] SDSC 17, this court sees no need to expand on this specific path at the current moment.
- [11.2] In applying the second limb of the test, we must ensure that the standard set by the statute is pursuant to said goal. If the solution isn’t pursuant to the goal, then that makes the solution baseless due to the distinction being arbitrary and only used to treat groups of people differently.
- [11.3] For the third and final limb of the test, we must determine whether the standard set by the statute is proportionate to the basis, or goal, of its passage. A solution made pursuant to a goal cannot be grossly extreme, overly burdensome on the State (in a manner inhibiting its ability to uphold others’ rights), or otherwise unproportional, as it then becomes an overreach of jurisdiction.
[12] Using our framework laid out in [11], we can now apply it to §9 of the Treaty. If it fails even one part of the test, we know that the Right to Equality Before the Law is being infringed.
- [12.1] As stated in [11.1], during this limb of the test, we must first identify the basis for the distinction, which is the usage of reclaimed speech. Then, to determine whether it is reasonable or not, we must determine whether or not it relates to a legitimate function. Considering that the Treaty aims to expand the Freedom of Expression within the bounds of the Terms of Service, it passes this stage of the test.
- [12.2] Now we determine if §9 of the Treaty is pursuant to the basis, or goal, which is to expand the rights of specific groups to express themselves through using derogatory speech against them as a tool of empowerment. The Treaty passes this step of the test through allowing those groups to have a legal defense against a hate speech charge.
- [12.3] This court is of the opinion that while an expansion of the Freedom of Expression certainly has its benefits, we must take into account what actually constitutes protected speech, which are political and religions beliefs and opinions, which has been the longstanding position since In re Restraining Order Act [2019] SDSC 1. That being said, with this expansion of the Freedom of Expression, the Treaty gives sweeping protections to the prosecution of hate speech, which is riddled with nuance. With such exceptions, the fair enforcement of the Terms of Service becomes virtually impossible. Further, the harm to society and those who cannot reclaim speech is much greater than the benefit of expanding the Freedom of Expression in this manner.
[13] With §9 of the Treaty failing the test set in [11], we know there is an infringement of the Right to Equality Before the Law, but consequently, we must determine if it’s permissible, for which we have two tools at our disposal, which together create another test.
- [13.1] Our first tool, or limb of this test, is to see if the infringement was done along protected characteristics, as if it does, it would directly contradict Article 17 §2 of the Constitution, and be impermissible.
- [13.2] The second tool and limb of this test is that of the test laid out in [41]-[43] of In re Fair Use of Alternate Accounts Act [2026] SDSC 1, which in and of itself has four steps.
[14] So, with the application of the test in [13], we must determine whether or not the Treaty permissibly infringes on the Right to Equality Before the Law—
- [14.1] With step one, this specific question is a rather interesting one, considering that the infringement is done to empower people’s protected characteristics. At first glance, one may say that §9 of the Treaty passes this step of the test. After all, its goal is to empower specific groups to use a typically derogatory term as a tool of expression. However, when allowing for this exception to the criminalization of hate speech, the rights of those who can’t reclaim language are violated.
- [14.1.1] For future reference, once a piece of statute fails this step of the test, we can firmly say that, unless it is in pursuit of enforcement the Terms of Service, no permissible infringement exists due to Article 17 §2 of the Constitution acting as an outright forbiddance on the State from infringement, which is further discussed in the post-script of In re Appendix s1.7 of the Constitution [2020] SDSC 3.
- [14.2] While we already know the Treaty does not impose a permissible infringement (see [15.1.1]), as this test is newly formulated and this court wants to give more reference to the inferior courts on its application, we will proceed as if the Treaty passed the first step. Now, we apply the test in In re Fair Use of Alternate Accounts Act [2026] SDSC 1—
- [14.2.1] To begin, we must consider whether there is a legitimate reason to allow reclaimed language. It is this court’s opinion that there certainly is, as empowering groups of people who are frequently prejudiced against is a very reasonable protection of the Freedom of Expression. What the Treaty is attempting to do is extend the Freedom of Expression to the extent possible, while not violating the burden placed on the State by the Terms of Service (see [5]).
- [14.2.2] We then move on to question whether the solution is effective, and it most certainly is, as those who use reclaimed language and then get prosecuted for hate speech may then affirm themselves as part of a specific group and use the term to empower themselves.
- [14.2.2.1] In applying this step of the test, we must also look at it from the lens of the provision being otherwise legal, else there would be no need to decide is the solution is effective if the solution has no basis.
- [14.2.3] Moving on, we have to consider whether the imposed infringement is necessary. As a means of achieving the goal, legalizing reclaimed speech is the most optimal means for the State to achieve the goal of expanding the Freedom of Expression of groups who are prejudiced against, so the Treaty passes this step of the test.
- [14.2.4] Lastly, we must consider whether or not the solution is proportional to the issue. In this case, this court does not see how a sweeping protection from hate speech charges can be a proportional solution to the expansion of the freedom of expression, especially due to not being classed under protected speech due to not conveying a political or religious opinion or belief. Additionally, this court does not see a pressing motive to legalize reclaimed speech, as precedent has dictated that reclaimed speech is not a defense for hate speech. Lastly, as discussed in [8], the enforcement of §9 would be incredibly burdensome on the State.
- [14.2.4.1] It should be noted that once a piece of legislation fails even one step of this test, we know that there is not a permissible infringement taking place, and the test can stop at the step where a piece of statute fails.
[15] As §9 of the Treaty has failed the test on infringement and failed the test on the infringement being permissible, it is this court’s opinion that the section is entirely unconstitutional and other such statutes, present or future, that impose the same standard are unconstitutional.
On the Revocation of Charters
[16] While not covered in the original petition, while reviewing the Treaty, this court noticed §10.1, which allowed the Bicamel Republic to void both the Treaty and its colonial charter through majority support in a public referendum if any part of the Treaty or charter were declared unconstitutional by this court, acting as an “exit clause” of sorts, and likely done in order to retain §9 in their jurisdiction
[17] The question that arises from this section of the Treaty is whether or not colonies can insert exit clauses in their charters or the treaties that they may sign with the State of SimDemocracy, considering that the Senate and President must agree to such agreements.
[18] Unambiguously, the answer is no, as the Constitution gives a specific framework for which colonies’ charters may be revoked, and it is through no involvement of the colony themselves. In fact, the Senate must vote with a ⅔rds (two-thirds) majority to revoke the charter for it to be legally revoked.
[19] §10.1 raises even more eyebrows when considering that it directly disregards this court’s constitutional authority to review any action taken by the State, which includes the colonies, and would also be unconstitutional for that reason, as the section effectively acts as an ultimatum to the judiciary.
Verdict
[20] §9 and §10.1 of the Treaty of Exploe were unconstitutional and had no effect when enacted.