Media coverage about the appearance of emojis in court cases suggests we should all be like 😱. “Can you go to jail for using an emoji?” asked Fox News. “Emojis are showing up in court cases exponentially, and courts aren’t prepared” argued the Verge. Meanwhile, CNN has warned that “courts are struggling to handle the nuances of emojis as evidence.”
The number of reported cases involving emojis or emoticons as evidence has increased more than 50 percent in the past year, from 33 in 2017 to 53 in 2018, according to Santa Clara Law professor Eric Goldman. When Goldman first began counting back in 2004, he found only one case. In 2019, that number may exceed 100.
It makes sense that emojis have invaded our courtrooms. Emoji and their predecessors, emoticons, both serve to add tone and personality to text, and that functionality has proved massively popular. Ninety-two percent of the online population use emoji, and at least 2.3 trillion mobile messages incorporate emoji annually as of 2016. Naturally some percentage of those communications would turn up in legal disputes.
But should we be as paranoid about emojis in the courtroom as most press coverage suggests? Just as the media doesn’t quite know what to make of emojis in the courtroom, courts themselves are still figuring this out. What do emoji communicate, and does intent match interpretation? Are emoji speech, and does that mean they’re protected? As emoji crop up in all sorts of cases, they raise these essential questions about language and communication—not to mention the importance of internet literacy in even the highest courts.
Emojis are often considered cute, fun, and whimsical. But the cases pairing emojis and threats of violence are anything but—and sadly, there are several of them. A court in France sentenced a 22-year-old man to three months in prison for texting his ex-girlfriend a pistol emoji, which the court determined was a “real threat.” Prosecutors in a Massachusetts murder case successfully argued that the defendant’s use of an emoji with Xs for eyes coupled with the nickname of the victim suggested a premeditated homicide and not accidental death as the defendant argued.
A common issue in criminal cases is whether evidence should be admitted for consideration by the court. The guiding principle is that evidence is only admissible if it is relevant, meaning that it tends to prove or disprove an element of the case, such as the element of criminal intent. If somebody sent you the following emojis in this sequence—👊 👉 🚑—then those emojis might be interpreted as expressing the criminal intent to attack you and put you in the hospital. (Lest you think this example is too on the nose, that was the exact message sent by two men taken into custody for stalking charges in South Carolina.)
The issue of motive comes up regularly in criminal cases, whether or not they involve emojis. But there is one wrinkle to the emoji cases that makes them a little different: how an emoji is displayed by a platform can change the entire meaning of the message. Consider a hypothetical scenario where the user types the message of 👊 👈 🚑, presumably to communicate that an ambulance is coming to help someone with an injured hand. But in this imaginary case the recipient’s phone flips the finger so that it points in the direction of the ambulance. As in the South Carolina case, the message is now received as a criminal threat. The reason the emoji could theoretically be flipped is because platforms like Apple, Google, and Microsoft are permitted to display different emojis idiosyncratically. Furthermore, Unicode cannot force the platforms to display emojis in the same way. So, the sender and the recipient see different messages without realizing the discrepancy.
If this hypothetical misunderstanding went to trial, the court should not only consider the text message as it was received, but also evidence of this cross-platform discrepancy. But as Goldman writes, situations like this require research to determine what the emojis looked like on the devices during the relevant time period. In other words, both judges and lawyers must be brought up to speed on how the technological environment affects emoji interpretation.
By now, the sexual use of the eggplant, peach, and sweat droplets emojis have become common parlance, at least in Western cultures. “If your boss starts texting you ‘eggplants’ and ‘peaches,’ a [bad] judge might think that he’s just suggesting a recipe, but you know what’s really up,” writes Elie Mystal for Above the Law.
The red lipstick emoji became an issue in a California claim of sexual harassment, as reported by the Wall Street Journal. A middle-aged man reportedly sent sexually suggestive texts to a female potential employee. The woman allegedly responded to one of the texts with a red-lipstick kiss mark, raising the issue of whether the kiss implied that she welcomed his advances, a central question when a sexual harassment case goes to trial.
In some cases, judges have ruled to omit the emojis from evidence altogether and just read the transcript of the text message to the jury. But Goldman argues that this is the wrong approach. The entire meaning of a text message can change if a sentence is followed by, for example, a winky face. Omitting the emoji prevents the jury from making a well-considered decision about what these allegedly harassing messages meant in context.
A British court’s 2013 decision in McAlpine v. Bercow might someday be considered the seminal case in the United Kingdom on whether an emoji can trigger liability for defamation on social media. Here’s a quick primer for those who haven’t taken the bar exam: Defamation is making a false statement that hurts someone’s reputation. If the statement is made in writing and published, the defamation is called “libel.” If the damaging statement is spoken, the defamation is called “slander.”
The Bercow defamation case involved prominent politician Lord Alistair McAlpine and popular political figure Sally Bercow. In 2012, the BBC reported that one of the abusers in a recent child sex abuse case was a “leading Conservative politician from the Thatcher years.” The BBC did not explicitly name McAlpine, but many people posted about him on social media in connection with the blind item causing his name to trend on Facebook and Twitter. Bercow sent the following tweet out to her more than 56,000 followers: “Why is Lord McAlpine trending? *innocent face*”
Note: The words “*innocent face*” were not a true pictographic emoji. But the court nonetheless found that users of Twitter were likely to interpret the words “like a stage direction, or an emoticon”—in other words, like an emoji. Ultimately, the court ruled that “*innocent face*” was “insincere and ironical” and contributed to the libel. The court ruled against Bercow, leading to her admission of fault and costing her more than $20,000.
Even though England and the United States have different legal standards for defamation, law student Nicole Pelletier argued that a U.S. court could nonetheless decide that an emoji triggers liability for defamation if the court determines that the emoji signals an implication of fact. In other words, the defamation cases involving emojis would closely resemble their non-emoji counterparts by turning on how the audience interpreted the statement.
Emoji and emoticons have not yet played a significant role in United States contract cases. But a 2017 ruling from Israel is likely to be cited as an example in academic legal writing or other cases. The case involved a prospective tenant responding to a landlord via text message (emoji annotations added):
Good morning 😊 [smiling face with smiling eyes] Interested in the house 💃 [woman dancing] 👯 [people with bunny ears] ☄️[comet] 🐿️ 🍾 [bottle with popping cork] … just need to discuss the details… When’s a good time for you?
Based on this, the landlord took the apartment off the market. Shortly thereafter, the potential tenants stopped responding to the landlord’s messages. They went on to rent another apartment.
The Israeli court did not hold that a binding contract had been created by the text message. But Israel has a statutory requirement that contracting parties act in good faith, and the court awarded the landlord $2,200 on the basis that the potential tenants were acting in bad faith. Specifically, the judge said that “the sent symbols … convey great optimism” and that the message naturally led the landlord to rely on the defendant’s desire to rent his apartment.
Future court cases involving contracts and emojis in common law legal systems will likely turn on the age-old legal principle: In order for a contract to be formed, there must have been a meeting of the minds. If two negotiating parties send each other a thumbs-up after discussing terms, it’s likely that they have reached agreement (at least in the United States).
Then again, other emojis are more ambiguous, especially across cultures but even within them. One study found that about 25 percent of the time people disagree on even whether emojis have a positive or negative connotation. Ambiguity is dangerous in contractual discussions, which is why the South Carolina Bar Association expressly reminded its members in March that emojis “should not be used in formal legal writing or in any business communications.”
First amendment and free expression
The Supreme Court has long held that “speech” under the First Amendment is not limited to the spoken or written word. Previous cases have found that wearing an armband to protest the Vietnam War or burning the American flag are protected by the First Amendment. But the great foundational case about the constitutional protection for emoji-speech has not yet taken place.
It seemed that the Supreme Court came close to considering the issue in Elonis v. United States. That case involved the Facebook postings of Anthony Douglas Elonis, written under the pseudonym “Tone Dougie,” where he posted self-styled rap lyrics containing violent language and imagery concerning his wife and co-workers. Elonis claimed that his messages were fictitious and protected by the First Amendment. He argued that his use of the tongue-out emoticon “:-P” suggested that he was making statements in jest and not as serious threats.
The Supreme Court reversed the case based on an erroneous jury instruction but unfortunately declined to rule on the First Amendment issue or the emoticon itself, a result that disappointed law professors Elizabeth Kirly and Marilyn McMahon. “The Court thereby circumvented the opportunity to rule on the evidentiary value of emoji as digital speech,” they wrote.
Future cases involving emojis and free speech protection will likely address the so-called “low-value” speech issue, which could also have come up in Elonis had the Supreme Court considered the First Amendment claim. Although the legal doctrine varies across American and European jurisdictions, the general principle is that speech that is considered more casual, conversational, or crude in nature generally does not receive the same amount of free speech protection as speech that is thought to have greater public value.
But like all norms, emoji norms have changed over time. While emojis might once have signaled amateurism and irresponsibility, now politicians and business leaders are using them regularly (for better and worse). Disqualifying emoji communications from free speech protections on the basis that the speech itself is “low-value” is not a reasonable long-term stance.
“The law must be stable, but it must not stand still,” wrote Roscoe Pound, one of the most cited American legal scholars of the early 20th century. Digital pictograms in court cases might be new to some judges, but they still can be understood and evaluated through preexisting legal principles, from criminal intent to low value speech. They certainly aren’t disrupting the entire legal system, as some media coverage has suggested.
To Pound’s point, perhaps the greatest challenge for the courts as they review emoji cases is not instability, but entrenchment. The great benefit of emojis is, like body language or tone of voice, pictograms can humanize text. That’s why it’s misguided when old-fashioned judges rule that emojis should be banned from the evidentiary record, or otherwise refuse to consider them as part of the case. Ignoring new modes of digital speech is not only a failure to keep with the times, but an unwillingness to review the facts with human context.