The Supreme Court has quashed the Court of Review’s ruling that the use of severe slurs is a strict-liability offence, restoring the requirement that a prosecution prove what the defendant meant by it.

The decision, unanimous and written by Justice Ivy Cactus, sets aside In re Criminal Code 56a [2026] SDCR 41 in full. Sesruinen v State of SimDemocracy [2026] SDSC 21

What the Court of Review had held

That certain slurs “carry too much historical context and are so universally known to be hateful” that anyone using them in public is necessarily careless or reckless — so the mental element of hate speech is satisfied automatically, by the word alone.

Why it does not stand

Article 56a §1.2 of the Criminal Code requires intention, carelessness or recklessness. The Supreme Court held that this element cannot be assumed away: whether it is met is a question for the trial judge with the facts in front of them.

The Court went further on the constitutional point. Had slur use been strict liability, the provision would have been unconstitutional — because the range of protected slur use is narrow but not empty. The judgment gives an example from the courts themselves: when a verdict quotes the words a defendant used, it is operating within the documentary exception in Discord’s guidelines, and cannot be prosecuted for it.

Because the offence is not strict liability, §2 of Article 56a survives as written. The State had already conceded the point in argument.

The two-clause test

The judgment’s most durable contribution is a reading of Article 18 §3, which bars convictions made “purely on the basis of speech and the exercising of free speech”. Both halves must be satisfied: the purity clause, asking whether the conviction looked only at content rather than at time, place or manner; and the free exercise clause, asking whether the speech was protected in the first place.

The appellant had argued that adding §3 to the Constitution broadened free speech generally and displaced the older case law. The Court disagreed, and on textual grounds: reading it that way would make one side of an “and” clause meaningless, and courts should be slow to find that legislative words do nothing.

A warning to the appellate courts

The judgment ends by naming the Court of Review’s error as a species of supplantation. Deciding whether conduct fits a crime is the trial court’s job; appellate courts should not issue “blanket mandates” about questions of fact detached from any particular case.

The Court noted, drily, that it almost never issues writs of certiorari when quashing — and then classified this one as exactly that, “to appease court watchers everywhere”.