Defining The Law Of Emoji

Courts are wrestling with how to interpret baffling emoticons.

onOctober 27, 2015 at 3:01 PM

In my last job, I used emoticons all the damn time. Sure, I hated myself for it, but I worked with lots of folks in different offices, the majority of which I’d never met in person. So when we chatted about cases over messenger I threw in plenty of 🙂 and 😛 to keep the tone light and make sure I wasn’t perceived as a bitch. I only used a few of the options available in the growing list of “standard” emoji since, even when everyone knows a project is going all FUBAR, a smiling pile of s**t still sends the wrong message.

I bring this slightly embarrassing fact about myself up, not just so I can be mocked for it, but because it demonstrates how ubiquitous those emoting yellow faces have become. Now we are at the precipice of yet another milestone for our pictographic communications — courts are tackling what they mean.

Over at Slate, they have a pretty through round-up of how courts have been treating the use of emoticons. There’s the Texas court that ruled 😉 does not equal consent to sex. The Michigan court that found the inclusion of 😛 after a potentially defamatory statement negated any impact of the words alone. And, of course, everyone’s favorite Supreme Court litigant, Anthony Elonis, who argued his placement of emoticons in his Facebook posts meant he wasn’t really threatening his ex-wife (Elonis’s conviction was overturned, but the Supreme Court failed to address the First Amendment issues).

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From Pilot and Above The Law

There is also the fascinating case of some Michigan Law students from a few years ago. A female student felt she was being harassed by a male classmate, we’ll call him Eager Eddie, and went to school officials. The school investigated, and the evidence included text messages Eager Eddie sent to a friend, indicating (with emoji) his opinions on the status of his friendship (or lack thereof) with his female classmate. When the prosecutor declined to press charges, Eddie filed suit against his classmate, the school, and the police, arguing he was investigated without cause and the faces in his texts messages should have made that obvious. The court disagreed with Eddie, as Slate reports:

In his defense, the student argued that several text messages he’d sent to a friend—in which he called himself a “petty bastard” who wanted to make his classmate “feel crappy” and experience “deep dark pits of depression”—should never have been taken seriously by police because he’d thrown a couple of wry emoticons in, including one indicating a stuck-out tongue. A proper understanding of the symbol, the man argued, would have led a reasonable officer to understand that he was not “sadistically bloodthirsty for revenge” against the woman, but rather just “deeply unhappy” about the status of their friendship. The judge disagreed, writing that the emoticon “does not materially alter the meaning of the text message.”

It’s pretty clear there is no hard and fast standard or interpretation of how emoji will be seen in a court of law.

With that in mind, to you.