View source for In re Toastdick Emoji 2020 SDSC 17

[[Category:Case Law|2020-10-13]] [[Category:Supreme Court Cases|2020-10-13]] [[Category:Court Cases from 2020|2020-10-13]]
= In re Toastdick Emoji 2020 SDSC 17=

{| class="wikitable" style="text-align:center;"
|-
! Date of judgment
! 13th October 2020
|-
| Justices
| Chief Justice Danyo Justice Ivy Cactus Justice SeaOtter
|-
| Held
| The Toastdick emoji violates the Discord Terms of Service
|-
| Ruling
| 3-0
|-
| Applicable precedent
| Mild NSFW content comprises of content which makes people feel uncomfortable or which would present issues for them in real life, 11 NSFW emojis are not legally permitted because they can not be confined to NSFW channels as required under the Discord Community Guidelines, 17
|}
== MAJORITY OPINION by Justice SeaOtter==

''(with Chief Justice Danyo and Justice Ivy Cactus agreeing)''
== Introduction ==

'''[1].''' The petitioner is seeking judicial review of the :toastdick: Discord emoji for being unlawful due to conflicting with both the Discord Terms of Service and Article 44 of the SimDemocracy Criminal Code “S.D.C.”

'''[2].''' The :toastdick: emoji (“toastdick”) depicts the commended citizen u/ClassLibToast with a poorly drawn phallic object. The petitioner argues that this violates both Not Safe For Work (“NSFW”) content guidelines established by Discord, as well as the statutory laws against NSFW content.
== Summary of the Petition ==

'''[3].''' The petitioner claims that the toastdick is NSFW, and therefore violates the following clause of the Discord Community Guidelines “Any content that cannot be placed in an age-gated channel, such as avatars, server banners, and invite splashes, may not contain adult content.” because it is an emoji itself.

'''[4].''' In addition, the petitioner argues that anyone who posts a picture of the emoji is violating Article 44 of the S.D.C., which states that it is unlawful to post “content which depicts acts of a sexual, illegal, excessively violent, or otherwise unsuitable nature.”

'''[5].''' While a remedy was not immediately offered by the petitioner, upon further questioning they recommended the removal of the emoji.
== Summary of the Response ==

'''[6].''' In their response, the Ministry of Justice advocated that toastdick was not intended to be “sexual” as the Indecent Exposure definition requires, but as a humorous drawing.

6.1 The respondent offered several tests to see if toastdick is indeed NSFW content. First off, they stated that an “average viewer” would not see the emoji as pornographic.

6.2 In addition, the respondent states that the alleged current definition of “not something I want my boss to see” is too broad to be applied in this case.

'''[7].''' Next, the respondent shows that on an official Discord Partner server (a server more closely bound and monitored for adherence to the Community Guidelines), several emojis with “sexual connotations,” with terms such as “thot,” “lewd,” and “furry.”

'''[8].''' Finally, a new definition for NSFW content is offered by the respondent, “nsfw be defined as anything that would make the average person uncomfortable or horny upon viewing.”
== What is NSFW Content? ==

'''[9].''' Several governmental sources define Not Safe For Work content, and content of varying degrees of severity including the Bureau of Investigation, persuasive judicial precedent and Discord Terms of Service.

'''[10].''' While the S.D.C. properly defines general NSFW content, the court will seek to provide a definition for mild NSFW content.

'''[11].''' The court will affirm the definition posed in ''SD v DickHead68'' 2020 Crim 2 1''.'' Mild NSFW content is to be defined as “Content posted that can lead to and has led to people feeling uncomfortable or potentially running into issues in real life.” This definition shall work in conjunction with the Criminal Code definition.
== The Reasonable Person and NSFW Content ==

'''[12].''' The main question posed to the court is as follows: is the toastdick emoji NSFW content?

'''[13].''' The court shall determine if the emoji was NSFW content by using the “reasonable person” test with the definition stated in 11. For this, the court shall find if it is likely that the reasonable person would become “uncomfortable” or “run into issues in real life.”

'''[14].''' In terms of a definition of likely, the court shall refer to the precedent under ''SD v Kamray23'' 2020 Crim 5 9'','' “Likely: The state in which something can be reasonably predicted, believed, or expected by a reasonable person, given the facts, without knowing the end results.”

'''[15].''' The court finds that a reasonable person would, upon viewing the toastdick emoji, become uncomfortable. In addition, if it was seen on a user’s screen, it is very possible to run into issues in real life. In addition, a reasonable person would not view this as “humorous” content, as it contains a very graphic object with little to no context.

15.1 With the specific emojis offered as an example by the respondent, the court does not believe the reasonable person would become uncomfortable upon seeing them, as the word “furry” is much milder than crudely drawn genitalia.
== Where is NSFW Content Allowed? ==

'''[16].''' As established in ''In re Restraining Order Act'' 2019 SDSC 1 16 which was affirmed in ''In re NSFW Channels'' 2020 SDSC 16 10, the Discord Terms of Service are a higher law, superseding the Constitution. Meaning all constitutional and lower laws or other actions taken by the state that violate the ToS are unlawful.

'''[17].''' As per Discord Community Guidelines, NSFW content is not permitted outside of NSFW marked channels, and in addition “Any content that cannot be placed in an age-gated channel, such as avatars, server banners, and invite splashes, may not contain adult content.” For that reason, an NSFW emoji would not be permitted on the SimDemocracy server, as it can not be confined to an NSFW channel.
== Verdict ==

'''[18].''' Therefore, the court rules that the toastdick emoji violates the Discord Community Guidelines, as well as Article 44 of the SimDemocracy Criminal Code.

'''[19].''' As recommended by the petitioner, the toastdick emoji shall be removed from the Discord server of r/SimDemocracy and its territories.



==Citations==
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