Emojis can be potent symbols for communication.  A seemingly serious message can become playful with the addition of a “winking face” emoji; a knife or gun emoji can indicate sinister intentions.  The use of emojis skyrocketed after Apple included an emoji keyboard on its iPhone in 2011 and now play a large part in everyday communication.

The rising popularity of emojis has led, inevitably, to legal questions regarding, for example, threatening messages using emojis, the use of emojis in evidence, and the intent of a defendant in using an emojis. Now, more and more, judges and juries are being called upon to determine the meaning an emoji adds to a sentence. For example, in the 2015 trial of the creator of the Silk Road online drug marketplace, Ross Ulbricht, the judge instructed the jury to take note of any emojis in texts, stating, “That is part of the evidence of the document.”  Last year, charges of making terroristic threats were dropped against a teenager who posted an emoji of a police officer with emojis of guns pointed at it. A judge in Delaware interpreted a winking-face emoji as a suggestion that the defendant who used it in a text message was “amused by yet another opportunity to harass” the plaintiff. And a middle school student from Virginia was arrested after she posted an Instagram message reading “meet me in the library Tuesday” along with a gun, knife, and bomb emoji. She was charged with threatening the school and computer harassment – now, it will be up to a judge to ascertain whether her use of the weapon emojis showed an intent to threaten the school.  One defendant, on trial for sexual assault, even tried to argue a “winkie-face” emoji constituted consent for sex in a 2011 Texas case.  The court, unsurprisingly, did not buy this argument.

Emojis show up in civil cases, too. A Michigan appeals court ruled that an allegedly defamatory comment posted to an online message board could not be reasonably read to be defamatory because of the inclusion of an emoji of a face with its tongue sticking out – :P.

Emojis have even made it to the Supreme Court.  Anthony Elonis had been convicted for threatening his estranged wife, posting violent lyrics about her on Facebook. He argued in part that because he had followed up the post with the tongue-out emoji, this proved the supposed “threats” were made in jest. The Supreme Court overturned his conviction.

The growing using of emojis presents interesting legal issues. Free speech advocates, for example, might be troubled that some emojis are being seen as threats.  Some defense attorneys might argue that emojis should not even be presented as evidence in court.  But because emojis are more and more a part of daily communications and can convey much about the intent of the user, it’s likely that they’ll continue to be admitted in court.

Olivia Marshall

 

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