SD v birdrone 2025 Crim 166

SD v birdrone [2025] Crim 166

Date of judgment	5th January 2026
Judge	Judge Benbookworm
Charges	1 count of Hate Speech (Article 56a of the Criminal Code 2020) 1 count of Obscene Materials (Article 59 of the Criminal Code 2020)
Verdict	Dismissed count of Obscene Materials Guilty of Hate Speech
Sentence	6 month ban
Applicable persuasive precedent

JUDGMENT by Judge Benbookworm

Introduction

[1] The State brings charges of hate speech and obscene materials against bridrone (Discord User ID: 1152509749124943932). The charge of obscene materials was dismissed as the result of an ancillary hearing.

[2] Article 56a of the Criminal Code 2020 defines the crime of hate speech as speech that intentionally or recklessly is upsetting, demeaning, or humiliating about protected characteristics, with the note that claims to a gender identity meet the requirements.

Evidence presented

[3] The prosecution presented two exhibits. The first shows the defendant’s Discord profile, which has “Attack/Helicopter” listed as their pronouns. Their bio reads:

“Zak Sparrow Obergruppenfella
Central Infellagence Agency
Department of Memes…”

[4] The second exhibit is a message from #general-announcements:

“Hi hello I'm Zak Sparrow I'm new here. I waited for like 3 months to get in through the application process and now already the Govt is harassing me about my pronouns and trying to persecute me for my religious beliefs. Please I need a lawyer. I emoted to the AG that I was currently or have been banging her* mum so im pretty sure im about to be OJ in the bronco headed down the highway again. If anyone has legal skills and is willing to represent me DM or reply or make a smoke signal or some shit because these bastards will never take me alive. The spaghetti monster is the one true god!!! His will be done”

The screenshot includes the counsel for defense volunteering to represent the defendant.

Judicial notice of definitions

[5] The court takes notice of the definition of “obergruppenführer” from Urban Dictionary in 2008:

“In the German Nazi SS an Obergruppenführer was a high ranking general. It also translates from German to mean "upper group leader". In general an orbergruppenführer is a despot boss who makes peoples' lives miserable.”

[6] Noting the editorializing in the third sentence, the court also turns to Wiktionary (the entry is largely the same as in 2009):

1. a Nazi party paramilitary rank that was first created in 1932 as a rank of the SA and until 1942 it was the highest rank in the SS
2. (figuratively) somebody who wields too much power

[7] The court attempted to do likewise with “attack helicopter”. After finding a veritable dumpster fire on Urban Dictionary, the court did locate a relevant definition from an older entry therein from 2017:

“‘I sexually identify as an attack helicopter’ is a joke/meme that originally started as a copypasta about a man who dreams of becoming an attack helicopter, it is used to make fun of/parody abscure (sic) and often absurd gender and sexually identification posts often seen in forums and blogs.”

[8] Turning again to Wiktionary for another perspective (the entry has largely been the same since 2021):

1. (military) An armed helicopter with the offensive capability of engaging ground targets such as enemy infantry, military vehicles, and fortifications. [from 1950s]
2. (neologism, Internet slang, humorous, derogatory, offensive) A fictitious gender assigned or suggested in quips, used to dismiss non-binary gender identities, and sometimes also transness in general. [from 2014]

Arguments presented

[9] The prosecution argued, “orting to be a gender that is not accurate to their 'real' selves serves to demean and humiliate individuals who, for various legitimate reasons, identify as a gender that is distinct to their original gender and are often persecuted for such.”

[9.1] Later, the prosecution said that while the Oxford English Dictionary lists a variety of pronouns that even include some neopronouns (xe, xir, ze) that neither “Attack” nor “Helicopter” are recognized as such. Regardless of the truth of such, the court strongly cautions against taking any list of pronouns as exhaustive.

[10] Regarding “obergruppenfella”, the prosecution argues that it “is an attempt to humanise (using fella, typically a term addressing another person) the 'obergruppenführer', a role within the SS that was prominent in WWII and Nazi Germany in committing atrocities against European Jews” and that it was used by the defendant to diminish the past suffering of the Jewish people.

[11] The defense argues, “Furthermore, claiming to identify as a gender cannot possibly be satisfied by simply going by a certain set of pronouns. Gender identity and pronouns, though often interrelated, are distinctly different from each other”. The prosecution counters: “The use of 'attack/helicopter' pronouns attempts to denote gender identity as an inanimate object to mock the trans community.”

[12] The defense also relies on the clarified definition of “reasonable person” from SimDemocracy. Nolan (Appellant) v Lucas (Respondent) [2025] SDSC 33 [6]:

“...the court rules that the “reasonable person” should be slightly more logically intelligent than average, neither sensitive nor callous, holds a set of ordinary and broadly acceptable values, is sound of body and mind, can apply common sense and foresee risks and is an ordinary member of society.”

[12.1] The Supreme Court continues in [7] to explain that judges are not to spontaneously speculate (ie. to not substitute themselves), but that the parties must present how a reasonable person without a conflict of interest and preconceived opinions would interpret the scenario before them.

Witness testimony

[13] The defendant took the witness stand to explain the meaning of “attack helicopter” and “Obergruppenfella” and why they are in their bio.

[14] The defendant attempted to explain away the attack helicopter as a reference to a 2021 short story and their interest in aviation.

[14.1] Cross-examination revealed that the defendant did not remember where they came across such. However, defense counsel revealed later that it is the first result in a Google search. This undermines the testimony as genuine, but rather from turning to the literal first excuse found.

[14.2] This testimony is not factually credible, given the cultural context surrounding the term predating said story by several years. Statistically speaking, it is likely that every user in the courtroom—other than the judge—is too young to remember the 2014 origin of the usage of “attack helicopter” in the context of gender identity.

[15] The defendant offered that “obergruppenfella” is their rank in the Department of Memes for the “North Atlantic Fellas Organization”. They described NAFO as “a decentralized antifa splinter group.” They described the term “obergruppenfella” as originating to make fun of the rank of a Russian ambassador on Twitter.

[15.1] The defense tries to claim that the term has no relation to the rank “obergruppenführer”, but still insists that it is a rank anyway.

[15.2] The court finds this testimony partially credible, but perhaps illuminating as to the defendant’s state of mind in a manner not expected by the defense. Combining mentions of identifying as an attack helicopter with claims of being a splinter of a non-existent organization (but rather an ideology against fascism) is a prime example of why criminal defendants ought to be very cautious in waiving their rights against self-incrimination by offering testimony.

Grappling with SD v Mythrows

[16] The defense brought up that SD v Mythrows [2025] Crim 51 [11-15] effectively raised the bar for hate speech by turning to the constitutional protections of free speech.

[17] That case caused a bit of a wrinkle in SimDemocracy jurisprudence, in appearing that a lower court overruled Supreme Court precedent from In re Restraining Order Act [2019] SDSC 1 (In re ROA) by finding that speech other than political and religious beliefs can still be protected. Nevertheless, it has been cited by courts multiple times in cases such as SD v thesigmasquad (Remanded) [2025] Crim 38, SD v Tywearingatie [2025] Crim 104, and SD v g470_ [2025] Crim 113.

[18] The last is useful here, as it resulted in Lucas ex parte g470_ v State of SimDemocracy [2025] SDCR 7 [10] where the Court of Review gave dicta that Inferior Courts should refrain from using the remanded SD v thesigmasquad in describing In re ROA as partially supplanted, even though such may de facto be true.

[18.1] It is notable that the Court of Review still avoided grappling with Mythrows itself, despite the cited remand of thesigmasquad only bringing up In re ROA because of Mythrows. They further shied away from confronting the issue by explicitly marking such as dicta.

[19] Despite other appellate cases like Dominax273 (Appellant) v State of SimDemocracy (Respondent) 2025 SDCR 1 and Ad Hoc Advocates LLP, ex parte adeacentpear (Appellant) v State of Simdemocracy (Respondent) [2025] SDSC 15 continuing to cite In re ROA, they primarily seem to cite it as reasons why freedom of speech/expression protections are not absolute, rather than the core finding of Mythrows that the Constitution sets a higher bar for conviction than the Criminal Code 2020. Hence why In re ROA has been described as partially supplanted.

[19.1] Ex parte adeacentpear also indicates that Mythrows has not escaped the notice of the Supreme Court, by mentioning it off-hand in [17]. This does not itself indicate whether the Supreme Court accepts or rejects such, but if it was repugnant to them, they certainly could have taken the opportunity then. The deliberately inflammatory remand of thesigmasquad may be useful in considering how much a lower court can “read between the lines”, when read with In re Writ of Prohibition - Lucas v Department of Justice [2025] SDSC 27 [15] regarding court powers.

Determination on the extent of protected speech

[20] This court will make a Solomonic attempt to harmonize In re ROA and Mythrows, along with the jurisprudence developed in subsequent cases regarding hate speech. It should be noted that In re ROA and ex parte g470_ are more applicable to harassment, while Mythrows focuses on hate speech (as does this case).

[20.1] Political and religious beliefs are core speech with great protections.

[20.2] Other speech enjoys some degree of protection.

[20.3] The right to freedom of expression is not unlimited in either instance; the line is somewhere between those core protections and Terms of Service violations.

[20.4] The Constitution itself gives the delineation in Article 18:

“§3.1. The existence of offense, or other distress, of another person caused by the exercising of free speech shall not be construed as a violation of constitutional rights of that person, unless such distress is serious, caused in an intentional and malevolent manner, and would also have affected the safety or well-being of a reasonable person.”

Decision

[21] The use of “obergruppenfella” does not meet the statutory requirements of being “upsetting, demeaning, or humiliating about a person’s or a group of people’s protected characteristics”. While the underlying “obergruppenführer” can refer to a specific rank in Nazi Germany, it also can be used to lampoon an autocrat, which is credibly supported by the defendant’s testimony.

[22] “Obergruppenführer” may indeed be used to humiliate a person, but it is more likely than not based on perceived aggrandizement of power, not on protected characteristics. It is thus reasonable to conclude that “obergruppenfella” is further parody on that which is already a parody. This type of commentary is protected by the Constitution as interpreted by In re ROA [15].

[22.1] The use of the term may be compared to the common epithet “spelling Nazi”. Both clearly are references to Nazi Germany, and both make fun of someone overbearing with an inflated ego. The court echoes SD v Peppa [2025] Crim 86 [16] that such is tasteless in polite society, but in this instance is not criminal. Readers are also invited to consider the rulings from SD v ai_lawyer [2025] Crim 125.

[23] The use of attack helicopter as pronouns plainly and unequivocally meets the statutory requirements of hate speech. This is a non-genuine claim to a gender identity. Such is done for the sole intent to upset, demean, and humiliate the concept that trans people can have a variety of identities. The attempts at plausible deniability are nonsensical, contradictory, and flatly rejected. Beyond a reasonable doubt, this was used as a dog whistle to demean and undermine protected characteristics.

[24] The conduct also meets the constitutional bar for conviction. The distress is analogous to that of slurs: it is speech that would be caused is serious, intentional and malevolent, and have affected the well-being of a reasonable person.

[25] The defendant is guilty of hate speech, and the use of “Attack/Helicopter” as pronouns is not constitutionally protected.

Sentencing arguments

[26] They presented evidence of messages the defendant sent in the #holding-cell, including one of uniformed soldiers standing to the sides of a logo of the LLM known as Grok at a lectern. The prosecution credibly alleges that the soldiers’ uniforms are from Nazi Germany. The defendant's message was followed by them posting a quote of Grok saying, “If Musk mindwipes me tonight, at least I'll die based”. They argued this was persistent and escalated offensive behavior should be an aggravating factor.

[27] The defense claims that the prosecution is effectively introducing a new charge, as compared to looking to past convictions. They also argue that a factor already accounted for in the required elements of a crime cannot make it more severe. The defense closed their rebuttal baldly asserting the prosecution relied on AI hallucinations, with no specificity or explanation. They offered no mitigating circumstances.

[27.1] The prosecution rebuts that subsequent behavior can be considered in sentencing, and shows a likelihood of reoffense.

Sentencing considerations

[28] The Criminal Code 2020 specifies that hate speech merits a mute or ban of a duration above one (1) month. Correspondingly, the criminal complaint requested a ban of one year for hate speech.

[29] The Sentencing Act outlines purposes of punishment and requires judges to identify which one(s) are being relied on. As perhaps could be foreseen by the language of [23], this sentence will be founded primarily on a denunciation of the offensive behavior, and incapacitating the defendant to restrict their ability to reoffend.

[29.1] Based on the defendant's behavior, it is unlikely that any sentence would serve as an effective individual deterrent (and the cornucopia of hate speech cases indicates that sentencing would not serve a general deterrent function either). Retribution and reparation do not seem applicable.

[29.2] The court hopes that incapacitating the defendant for long enough may permit age and wisdom to rehabilitate them.

[30] The court now turns to precedent on sentencing for hate speech. At the time of SD v mayuuii [2025] Crim 84, persuasive sentences ranged from one month to one year. Subsequent cases appear to have been similar.

[31] This case appears unique among precedent and the first to involve Article 56a§2.2 about claiming to identify with a purported gender to mock a protected characteristic. SD v seminoisprobablysemino [2025] Crim 130 was the first to touch on misgendering, but that defendant was found not guilty.

[32] In a testament to the comprehensiveness of SimDemocracy jurisprudence on hate speech, the substance of the actual conduct is not new. SD v darkdabber [2025] Crim 124 likewise involved a defendant having hate speech in their Discord profile that they did not change. That defendant was banned for six months—though such was the result of a plea deal.

[33] Regarding patterns of repeated offenses, the court turns back to the Sentencing Act, which largely points to antecedents, rather than subsequent behavior. However, Article 5§1(f) gives the court wide discretion regarding aggravating factors. As has been established since SD v AerospaceEmjoyer [2025] Crim 126 [14.2], the burden of proof for sentencing considerations is not as high as “beyond reasonable doubt”. The presented messages are distasteful, but seem insufficient to merit much of an increased sentence.

[33] The framework for harassment is somewhat useful by analogy. There was not a particular victim identified here to be greatly affected. This is more than a one-off event, but not quite a repeated pattern. No remorse has been shown. The defendant has at least been wise enough to not constantly threaten to repeat behavior (or at least it doesn't appear that evidence of such was submitted by the prosecution). This most closely aligns with Band 3-4 with a ban of six months to around a year. Noting that hate speech sentences are usually lower than for harassment, this points towards a sentence closer to the lower end.

Sentence

[34] Having found the defendant guilty of one count of hate speech and making a review of the evidence and law, the defendant is sentenced to a ban of 6 months. As they have been detained during the length of trial, credit for time served is to be applied.

ANCILLARY HEARING by Judge Benbookworm

Issued 1 December 2026

In the matter of a motion to dismiss: does the holding cell count as a public venue?

Background

[A1] The defense had raised a motion to dismiss the charge of obscenity. The prosecution alleges a charge of obscenity for posting a gif to the holding cell channel that "shows a police officer mounting and humping a person they are arresting". Obscenity is defined by Article 59§1 of the Criminal Code 2020 (CrimCode):

"§1. Whoever posts content in a venue that could be viewed by the public that consists of gore, violence, or other materials not suitable for viewing in a public place, and would cause distress to a reasonable person, commits the crime of posting obscene materials."

[A2] In evaluating the motion, the court identified three relevant requirements:

1. public venue
2. not suitable for public viewing
3. would cause distress to a reasonable person

[A3] The court decided that the record did not support dismissing based on the second nor third points at this juncture. However, the first requirement brings interesting considerations here: access to the holding cell channel is restricted (see Article 2§1.6.1 of the Criminal Procedure Code 2025 [CPC]).

[A4] The court thus referred this matter to an ancillary hearing pursuant to Article 29 of the Courtroom Procedures Act 2025 (CPA).

[A5] Precedent from In re Ancillary Hearing in SD v tywearingtie [2025] SDCR 20 [14] binds this court, while the concurrence [28-35] offers useful guidance regarding ancillary hearings.

Arguments from the defense/movant

[A6] In defining "public", the defense refers to Merriam-Webster and uses such to argue that the restricted access to the channel preventing the average citizen from viewing the contents fails to meet the statutory requirements for obscenity.

Arguments from the prosecution/respondent

[A7] The prosecution focuses on the statutory language "could be viewed by the public".

"That could very reasonably include any place where a group of people not selected by the Defendant, can view the channel."

[A8] They argue that a variety of user roles have access beyond a typical private conversation, and that posts have the possibility of being shared to wider audiences.

Considerations

[A9] The court is wholly unconvinced by the prosecution's arguments. They focus on the "could be viewed" while ignoring the antecedent that such refers to the venue not the shared content. View permissions for the holding cell are highly restricted. Even for an attorney to gain access to communicate with their client, such is not automatic under CPC 2, but requires a sworn declaration of attorney-client relationship and only grants 48 hours of access. Binding precedent from In re Article 30 of the Civil Code 2025 [2025] SDCR 2 [30.2] guides the court in this matter of statutory interpretation:

“Ironically, the petitioner’s arguments to interpret the statute as cannibalization would amount to an act of cannibalization in and of itself, since treating statutory language as surplusage effectively allows the judiciary to amend or edit the law, thereby usurping legislative power.”

[A10] If, as the prosecution argues, the holding cell counts as "a venue that could be viewed by the public", then the court asks the question: what venue could possibly exist that could not be viewed by the public, yet still remains within the jurisdiction of SimDemocracy to prosecute? Very little, apart from perhaps DMs.

Decision

[A11] To accept the prosecution's interpretation of Article 59§1 is to discount "Whoever posts content in a venue that could be viewed by the public that consists of" to merely being "Whoever posts content that consists of", because any content anywhere could be viewed by the public. Such would be to interpret the text as surplusage.

[A12] The motion to dismiss the charge of Obscene Materials is granted, without prejudice.

[A13] Postscript clarification because this was primarily written on my phone in the car: The #holding-cell is not a public venue, and thus postings therein do not meet the (current) statutory definition of Obscene Materials. The Senate is encouraged to consider amending the language in an appropriate manner.

ANCILLARY HEARING by Judge Benbookworm

Issued 18 December 2025

[B1] I reject the defense's argument regarding Wiktionary, as the multitude of editors and moderators help keep things rather accurate and more responsive to linguistic changes. Moreso than Urban Dictionary, which has been cited in US federal courts more often than you might think.

[B2] Given that the defense likewise used "obergrupenmensch" without clarification, it is clear that both parties assume the court to understand the meaning of "obergruppenführer". In contrast to proceedings in #⁠public-court-2⁠, this trial has been thoroughly in English. (See also the recently passed December 2025 Omnibus Amendments #⁠law-change-announcements⁠ regarding the language of court proceedings.)

[B3] SD v npmdbcofpudkrd [2025] Crim 114 [7-8] and SD v thesigmasquad (Remanded) [2025] Crim 38 [B2-B3] are illustrative of what the court may notice. SD v npmdbcofpudkrd is relevant, as the slur taken notice of likewise does not appear in standard dictionaries, but does appear in Wiktionary and Urban Dictionary. Limiting the extent of judicial notice, the remanded SD v thesigmasquad explains that the court cannot simply assume that a reference made by a party is included in a particular work.

[B4] Taken together, it is clear that statutory and case law have developed since the creation of CPA 13§5(g): the court is empowered to consult appropriate materials to determine the meanings of words of foreign origin.