Richard Dollinger
For lawyers, there is a new language in town, coming to you from your iPhone courtesy of millennials: Japanese picture art and the desire for evermore cryptic expression for all.
Emoticons and their more expressive cousins — emojis — are creeping into America’s casebooks and ushering in a legal exploration of what the symbol language means, who gets to interpret their meanings and whether judges and jurors understand them.
An emoticon is a typographic display of a facial representation, used to convey emotion in a text only medium. Like :-). This sideways smiley face was first credited to a Pittsburgh computer scientist in 1982, followed shortly by its opposite, the sideways serious face :-(.
Emojis — actual pictures of everything from a thumbs up gesture, an assortment of faces, a ghost or a gun — come from the Japanese words e and moji, which roughly translates as “pictograph.” Emojis went viral when phone and computer software sellers designed programs to support these new forms of expression.
Emojis are now universal to the under 30s. There is even an Emojipedia, a source authority for all things emoji.
Like DNA, software, hardware, screen shot and viral — words that had no legal meaning three decades ago — emojis and emoticons are now the subject of judicial debate as courts, lawyers and jurors seek to understand their meaning and what probative value they serve in trials.
The debate is hardly new. In the 2015 trial involving the online drug mart, the Silk Road and the Dread Pirate Roberts (purloined from the movie The Princess Bride) a/k/a defendant Ross W. Ulbricht, a prosecutor, in their opening statement, read an Internet post from the defendant but omitted the emoticon “smiley face” that followed. Objections ensued and the judge eventually designed instructions to jurors on the defendant’s use of emoticons in email. Ulbricht ended up with a frowning face: He was convicted of drug trafficking and sentenced to life imprisonment. United States v. Ulbricht, 858 F.3d 71(2d Cir. 2017).
New York courts have grappled with the impact of emojis to determine motive in highly publicized cases. In People v. Spears, a mother of child was accused of poisoning her son, but her defense admitted a tweet that stated “My sweet angel is in the hospital for the 23d time” and had an emoji of a crying face to follow. People v. Spears, 2015 NY Slip Op 32678(U) (Sup.Ct. Westchester Cty 2015). The jury was unconvinced and concluded that her guilt was beyond a reasonable doubt. The Second Department affirmed the conviction. People v. Spears, 2017 NY Slip Op 07148 (2d Dept 2017).
In another instance, a vile posting on Facebook, allegedly by the defendant, featured two-dollar-bills-with-wings emoji (money lost) and a sad-face emoji. The contents, emoji included, were admissible as evidence of threats, although the court did not comment on their meaning. People v. Moye, 51 Misc. 3d 1216(A)(Sup.Ct. Queens Cty 2016).
Emojis have even made it to the big time. In a case before the Supreme Court, the defendant argued before a jury that his threatening post on Facebook was clearly meant in jest because he followed the threat with the “sticking your tongue out” smiley face. The court, for other reasons, vacated his original conviction. Elonis v. United States, 135 S. Ct. 2001 (2015) When the case was remanded, the appeals court upheld his conviction because the jury could easily conclude that the inserted smiley face did not dilute the threat created by the powerful vile words that preceded it. United States v. Elonis, 841 F.3d 589 (3d Cir. 2016).
Judges and jurors can apparently see through the deceptive use of emojis. Emojis can convey emotions, but they cannot erase hateful, vile language that precedes them. In California, the use of laughing emojis or a laughing devil emoji did not prevent a court from concluding that threats in a tweet were a crime. In re L.F., 2015 Cal. App. Unpub. LEXIS 3916 (Ct. App. Cal. 1st Dist 2015).
Emojis often crop up in cases involving intimate or sexual relationships, as couples — or flirtatious would-be partners — use the pictures to emphasize intimate sexual activity. In Mississippi, an employer was charged with sexual harassment because he sent an applicant “a picture of a tumescent penis,” but when the applicant replied with sexual innuendos and emojis of blowing a kiss and three winking emojis, the court held there was insufficient evidence to establish a claim for emotional distress for the recipient. Stewart v. Durham, 2017 U.S. Dist. LEXIS 88656 (D.S.D. Miss. 2017). Blowing kisses and excessive winking hardly suggest emotional distress, even in an emoji world.
In Rhode Island, a couple amplified their explicit sexual relationship with winking and smiley emojis, which led to a hotly contested student discipline. Doe v. Brown Univ., 210 F. Supp. 3d 310 (D. R.I. 2016). In Massachusetts, a student’s claim for sexual harassment was undercut when she sent friends “positive emojis” after an alleged sexual encounter. Doe v. W. New Eng. Univ., 228 F. Supp. 3d 154 (D. Mass. 2017).
In Ohio, a jury, determining motive in an assault, had to weigh the impact of “the winky-faced emoji” in evaluating whether the text messages were evidence of provocation in fight over a relationship between a couple. Ohio v. Shepard, 2017 Ohio App. Lexis 328 (Ct. App. 12th Dist. Ohio, 2017). In a sexual assault trial in Virginia, a “smiley face” emoji — with hearts for eyes — next to the word “secret” was admitted as evidence of motive to describe the relationship between an perpetrator and under-aged victim in a solicitation prosecution. Murgia v. Commonwealth, 2017 Va. App. LEXIS 141 (Ct. App. Va. 2017)
Fear is a close second to affection as an over-utilized expression in the emoji lexicon. In Nebraska, a student was disciplined by a school district for posting anonymously: “Tomorrow gonna be hella fire [fire emoji] be there (School).” This post was followed by another anonymous post: “Don't show up to school tomorrow [gun emoji].” The student sustained a 15-day school suspension and the emojis were interpreted as part of his intention to threaten others. J.S. v. Grand Island Pub. Schs, 297 Neb. 347 (Neb. 2017).
In a Michigan federal court, the judge considered the impact of emojis when considering a search warrant for a phone:
“the contents of modern phones coupled with the inferences that can be drawn from them (e.g., the phone's calendar shows an upcoming visit to the doctor, the phone's browsing history shows a search about a certain disease, a contemporaneous text includes a nervous emoji) gives good reason for the particularity requirement to apply with considerable force to warrants authorizing cell-phone searches.” United States v. Olaya, 2017 U.S. Dist. LEXIS 72520 (E.D. Mich. 2017).
Who’d have thought that emojis had nerves?
Emojis have also borrowed school grades as expressions, borrowing the 100 underlined to denote success or pride. In a drive-by shooting case, members of a gang in Ohio used the underlined 100 to identify its members. State v. Ramey, 55 NE 3d 542 (Ct. App. Ohio 2015). The 100 emoji is commonly used as a shorthand for 100% — the perfect score on a test in Japan (and elsewhere) — and is often used to express pride or general acceptance of an idea.
When considering the legal impact of emojis or emoticons, an old trial-lawyer adage comes to mind: “Pictures are worth a thousand words.” But jurors viewing emojis of guns, fires, assorted contorted faces or other images will probably look to the accompanying words for their meaning and easily ferret out the serious from the jocular. As one analyst observed, smiley emojis are not perceived as the digital equivalent of smiling at someone, and aren't construed as a way of communicating “warmth.” Glikson, Cheshin, van Kleef, The Dark Side of a Smiley, Effects of Smiling Emoticons on Virtual First Impressions, Sage Journals, July 2017 (https://doi.org/10.1177/ 1948550617720269).
Emojis and emoticons are the new 21st century slang. Like the slang of the late 20th century — cool your jets, blow your mind and the like — these shorthand images will jump into trials and be fodder for juries and judges for a while.
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Richard A. Dollinger is a member of the New York Court of Claims and an acting Supreme Court Justice. Timothy Goetzman, a 3L student at Nazareth College, also contributed to the article.
