Courts

· ·2 min read

Discord's rules outrank the Constitution, and this time that decided the case

The Supreme Court affirmed convictions for spam, hate speech and misgendering without reaching the constitutional argument at all — because conduct the platform forbids cannot be protected speech in SimDemocracy.

Discord’s rules sit above SimDemocracy’s Constitution, and the Supreme Court has said so again — unanimously, and as the reason an appeal fails.

The Court affirmed the convictions entered against christopher_bizarre for spam, hate speech and misgendering, rejecting an appeal that had asked it to widen the constitutional protection for expression. Benbookworm, ex parte christopher_bizarre v State of SimDemocracy [2026] SDSC 23

The holding

Writing for a court of five, Justice ppatpat put the rule plainly: the terms of service of Discord, of Reddit, and indeed of “any platform where SimDemocracy conduct is occurring” are a higher law than the Constitution. The point is not new — it comes from the very first case the Supreme Court ever decided, In re Restraining Order Act [2019] SDSC 1 — but it has rarely been the whole answer to an appeal.

Here it was. Spam is barred by Discord’s terms. The hate speech in the underlying case is barred by its Hateful Conduct Policy. The misgendering conviction rests on targeted harassment based on gender identity, barred by the Community Guidelines.

Because all three fell outside what the platform permits, the Court held the appellant’s Article 18 arguments “irrelevant”. Not wrong — irrelevant. The constitutional question was never reached.

What that means in practice

SimDemocracy’s Constitution can be amended only by two-thirds of the electorate at referendum. Three amendments were put to that test this weekend and all three failed.

The rules that outrank it can be changed by a company, without notice, without a vote, and without anyone in SimDemocracy being consulted.

The concurrence

Justice Ivy Cactus wrote separately to work out what would happen if Discord’s rules did not cover the conduct — and concluded the spam prosecution would survive anyway.

A ban on spam, the concurrence reasons, is a restriction on time, place and manner rather than on content. It does not matter what the defendant was saying: “their words could have been replaced by random strings of characters, and it still would be criminal.” The analogies offered are noise ordinances and blocking a highway — you have no defence for either, however righteous the cause.

The concurrence draws one clear limit. A restriction can be content-neutral and still go too far: a law charging people to send a message, and criminalising those who did not pay, would breach the right to free expression whatever its neutrality. Article 50 of the Criminal Code, which reaches only speech whose “primary purpose” is disruption and which lacks “genuine intent to participate in good faith”, is nowhere near that line.