Sunday, 17 November 2019
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:-P Emojis and Emoticons in Court

This article was originally published in the 2017 edition of The Reporter, Volume 44, Number 3. Additional resources have been added to enhance the digital version.

Despite the danger of misinterpretation inherent in the use of emojis and emoticons, their popularity has increased.

Expressing emotion in our digital lives presents unique challenges. Articulating joy, sadness, or laughter in non-verbal, non-word characters is a learned skill which can be interpreted differently than the author intended. Despite the danger of misinterpretation inherent in the use of emojis and emoticons, their popularity has increased since their online debut in the early 1980s. One of the first, if not the first, use of an emotional identifier[1] was in a Carnegie Mellon University message board as a “joke marker.”[2] In the early 1980s, electronic message boards increased in use at Carnegie Mellon for both serious academic pursuits as well as sarcastic and funny posts.[3] At times, posts would be misinterpreted, which led to a flurry of responses that failed to grasp the original thought. Professor Scott Fahlman, a computer science researcher, suggested the use of “:–)” as a joke marker.[4] He went on to say, somewhat sarcastically, that because of all the misinterpretation that was occurring, serious posts should use “:–(” to identify that they are not in jest.[5] The emotional identifiers were necessary to make up for what Professor Fahlman said was lacking in text-based communication: body language and tone-of-voice cues. While the meaning of “:–)” was that of a “joke marker” in early messenger boards, the meaning of emoticons and their pictorial counterparts, emojis, is up for interpretation.[6] It is often said that the practice of law is behind the technology curve and that attorneys and paralegals need to do a better job of embracing society’s advances. As litigators, many of us already wrestle with the meanings of emoticons and emojis.

What are emojis and emoticons? An emoji is a “colorful pictograph that can be used inline in text.”[7] Adding to that broad definition, an emoji is commonly a type of graphic symbol that represents an idea, thing or concept, independent of any particular language, used in electronic messages and web pages. Emojis may be animated or still images. One of the most common emojis is the yellow circular smiley face.[8] An emoticon, on the other hand, is “a series of text characters (typically punctuation or symbols) meant to represent a facial expression or gesture such as ;).[9] Contrasting with the popular yellow smiley face emoji, the emoticon corollary is the combination of “:”, “-” and “)” to form “:-)” a smiley face.

Attorneys, judges, investigators, and other parties should make efforts to understand emojis and emoticons in their case so as not to lose out on context which may be dispositive. Text messages, e-mails, message boards, and other types of messaging services offered in official and unofficial capacities are woven into our daily professional and personal lives. For example, there are 110 available varied emojis for use on the desktop messaging program Lync, including a yellow smiley face, pizza, and an animated ninja that shows skill with a sword before vanishing in a cloud of smoke. Most messaging programs allow the sender to control who receives the message, thus leading to an increase in use of messages in interpersonal and intimate relationships. Given the increasing use of cell phones, social media, and other forms of digital communication in our professional and personal lives, emojis and emoticons are here to stay. These text-based communications, normally thought to be private, can eventually be obtained by investigators and made public in open hearings.

Communications made by a witness, defendant, or victim can provide insight into their intent, knowledge, or motivations. The role non-word symbols should play, if any, is an open question in the legal community because of how relatively new these emotional identifiers are in our society. How is a legal professional supposed to define an emoji or emoticon? Are there times when emojis should have no value and other times where they can be dispositive? Can they take the place of legally significant language or other words? Does context of the conversation around which the emoji is used completely define how the emoji should be interpreted or should the interpreter be looking to outside sources as well? While not all of these questions will be answered in this article, it will cover some examples of how courts have begun to grapple with how much legal significance can be given to emojis an emoticons.

“P”: Deeply Unhappy or Sadistic Bloodthirsty Revenge?

Enjaian v. Schlissel

At least one federal court has interpreted the significance of an emoticon. In Enjaian v. Schlissel, one student sent threatening messages to another. The offending student claimed he minimized the threats through the use of emoticons. Police investigated a law student for stalking and harassing a female classmate online. After investigators seized and searched a number of electronics, prosecutors declined to press charges. The accused law student sued his female classmate, the school, and the police, seeking recourse for what he saw as an unlawful search and seizure.[10]

The court in Enjaian found that the single text message used as the basis for the search warrant for allegations of harassment was not materially changed by the addition of an emoticon. The message read in part that the plaintiff “h[o]pe[d] [the victim] likes deep dark pits of depression because [he’s] a petty bastard P.”[11] The plaintiff argued that the addition of the “P” was crucial since it is an emoticon and “materially affects the tone of the sentence.”[12] After the plaintiff was warned not to act by a friend, the plaintiff responded “Not that serious. Just enough to make [the victim] feel crappy -D.”[13]

Stock Illustration © iStock.com/Dezein

The emoticons in question here, “-D” and “P,” each refer to a facial expression. The first emoticon refers to a wide open-mouth smiley face. The second emoticon refers to a tongue sticking out of a mouth. In both of these emoticons, note that eyes are not present in the original message.[14] Outside of the context of a message, both of these emoticons can be used to show approval, laughter, cheerfulness, joy, or similar topics.

Part of the plaintiff’s claim was that since the emoticons were left out of the search warrant, a reasonable reader of the messages would have seen that “he was merely ‘deeply unhappy…rather than sadistically bloodthirsty for revenge.’”[15] The court said that the lack of the emoticon does not support the plaintiff’s argument because the emoticon does not make a significant change to the meaning of the message.[16] The court did not elaborate any further.

The court may have thought the plaintiff’s harassing statements were so strong that the jovial emoticon did not overcome the threatening language used. Alternatively, the court may not have given any weight to the emoticon and interpreted the message based solely on the words used. It is more likely the court gave weight to the emoticon but interpreted its meaning differently than the plaintiff may have intended. This is supported by the fact that the court took the time to explain what emoticons are and said that in this particular case, use of the emotional identifiers was not dispositive.

Future need for courts to understand the nuances brought about by technological and social change.

Because of expanding use, it is important for attorneys to know if a court will need more explanation on what these symbols are and how they are used as forms of communication in our society. Enjaian represents the future need for courts to understand the nuances brought about by technological and social change. Ultimately, the Enjaian decision is important because it is one of the few cases that took the time to explain what emoticons and emojis are, while also explaining their differences.[17] If for no other reason, attorneys can now point to this decision as a starting point for interpreting emotional identifiers for their clients and courts.

Law Schools and Moot Court Competitions

Law schools and moot court competitions are pushing the envelope with technology in the courtroom. Law schools have been offering courses focused on technology in the legal profession taught by attorneys who use cutting edge electronic tools to zealously advocate for their clients.[18] In one recent moot court competition, the fact pattern utilized a text message with multiple emojis from a key witness purportedly identifying the accused in a store near in time to a burglary occurring miles away.[19] While law school level classes and moot court competitions will not assist current practitioners, the legal profession should take note since future attorneys will be armed to use technology for their clients’ benefit.

Do Smiley Faces Turn Death Threats Into a Joke?

In Re L.F.

At least one state court is taking note of the role emojis can play in the law. A California appellate court concluded that a minor, identified as L.F., had committed a felony criminal threat for sending threatening messages, some of which included emojis. During a school day at Fairfield High School, L.F. tweeted[20] the following over a matter of hours to followers on an account that can be seen by the public: “If I get a gun it’s fact I’m spraying [five laughing emojis] everybody better duck or get wet”; “I’m leaving school early and going to get my cousin gun now [three laughing emojis and two clapping hands emojis]”; and “I really wanna a challenge shooting at running kids not fun [laughing emoji].”[21] Note that the court added the brackets with a brief description of the emojis and also provided a definition of emojis.[22] As described below, the use of brackets may be insufficient when referring to emojis. L.F. made other comments on Twitter along the same vein identifying the sections of her high school she was going to target during her threatened shooting spree.

At the juvenile hearing, L.F.’s best friend testified that when she read the tweets, she did not take them seriously because the laughing emojis showed that L.F. was making the comments in jest.[23] L.F.’s sister testified that she also thought the tweets were jokes, in part, because of the presence of the emojis.[24]

A stack of various three-dimensional emoji smilely faces.
Stock Photo © iStock.com/Dezein

L.F. argued that her use of “symbols of laughing faces” and terms like “jk” shows that the statements were meant as jokes.[25] The court disagreed because the threats were specific as to location, descriptive in the threats execution, and were made over a number of hours.[26] In re L.F. is instructive because how the court interpreted the emojis can be understood as one end of the spectrum when interpreting emojis and emoticons. In the court’s view, the jovial laughing face emojis were used with overtly threatening language directed at specific people in a specific place.[27] Where a court views the questioned language as unequivocal, the use of a light-hearted emoji or emoticon may not change the meaning of the message. However, on the other end of the interpretation spectrum, if equivocal language is used along with jovial emojis and emoticons, then these emotional identifiers may be used in understanding the context of the message.[28]

In re L.F. is also important because it is one of the few cases to define “emoji.” Relying on the Oxford English Dictionary from Oxford University Press, the court defined an emoji as “a small digital image or icon used to express an idea, emotion, etc., in electronic communications.”[29] Reference material used to define terminology in the legal world, such as Black’s Law Dictionary and The Law Dictionary available on Lexis, do not define “emoji” or “emoticon.”[30]

Given that relatively few legal sources have taken the time to define “emoji” and “emoticon,” it is important for an attorney to have these various definitions at their disposal when drafting pleadings.[31] While there are few cases which discuss the differences between emojis and emoticons and how to interpret them, there is nevertheless general guidance which can be used when interpreting these emotional identifiers.

GENERAL GUIDANCE

Below are general guidelines offered to assist in framing an understanding of an emoji or emoticon for use in legal proceedings.

When forensically sound data from cell phones and computers are at issue, an emoji may not appear as the image the user of the media observes it for a variety of reasons.

TYPES OF EMOJIS

Emojis are not just yellow smiley faces anymore; they can range from bento boxes to mountains.[32] Does a bento box have a meaning not mentioned in the facts of your case which may nevertheless be important to understand? The legal professional has their work cut out for them since new emojis can be created by individuals, companies, and other organizations at their leisure. For example, Kim Kardashian launched an application allowing for the use of “Kimojis” in text messages, which are Ms. Kardashian-themed emojis.[33] Despite the breadth of options available, attorneys should make an effort to know where unique emojis that are key to their cases came from, and if they have an alternate meaning.

KNOW THE LIMITS OF INVESTIGATIVE TECHNOLOGY

When forensically sound data from cell phones and computers are at issue, an emoji may not appear as the image the user of the media observes it for a variety of reasons. For example, investigators may be using technology that does not capture the emoji. Another reason an emoji may appear incorrectly, or not at all, is that deleted messages retrieved from an electronic platform may be partially recovered and the emotional identifier may have been left out. These examples emphasize the importance of explaining technology in court and advocating for the court to recognize part of the communication (the emoji or emoticon) is missing. Knowledge regarding how emojis are preserved as evidence, and situations in which they would become corrupted, are significant when preparing motions, witness questions, expert questions, and findings arguments where an emoji is a significant factor in the case. When it comes to the collection of emojis or emoticons as evidence, take pictures of the relevant messages as thoroughly as possible so you know that the parties have documentation of the messages and any emotional identifiers as viewed by the sender or receiver. While this means of collection may not be as forensically sound as a technical extraction, it is nevertheless a way to ensure capture of these symbols in a way that the user observed them. In addition, this practice ensures that the evidence is readily available to the parties and the parties do not have to wait for a technical analysis.

When it comes to the collection of emojis or emoticons as evidence, take pictures of the relevant messages.

KNOW THE CONSUMER ELECTRONICS AND APPLICATIONS USED

There are resources to assist lawyers in understanding this topic area. The Unicode Consortium is a non-profit, 501(c)(3) charitable organization, whose mission it is to provide “a unique number for every character, no matter what the platform, no matter what the program, no matter what the language” for electronic communications.[34] If the Consortium is successful in its mission, its efforts should allow for the various computer programs used across electronic media to be able to talk to one another. For purposes of emojis, that would mean that a smiley face entered into one platform, such as an Internet messaging service on a smart phone, could be viewed by a person using a different platform, such as a different Internet messaging service on a desktop computer. The Consortium website can be used to understand some of the technicalities in transferring messages from one platform to another platform. Other resources include investigators who are well versed in electronic data storage and computer forensic experts.

CONTEXT MATTERS, OR DOES IT?

As with most language and other modes of communication, context is key to understanding the meaning a sender of a message intends to communicate to a receiver of the message. Emojis and emoticons are no different and should be understood in their context, with the caveat that where unequivocal language is used, the receiver may reasonably ignore the emojis or emoticons. This is true for all parties involved in the courtroom, even if your position is contrary to understanding the emotional identifier in context; knowing what the other parties to the action may think about how a key message is interpreted will better prepare you to defend against that position. Another strategy is to show that there are so many different uses of the particular symbol that neither of the parties, nor the fact finder, can independently verify how the sender meant the emotional identifier to be interpreted. Knowing the breadth of the context to use is based on your discretion and where the facts lead you. For example, conspirators working to steal equipment from the government may use emojis differently than a sexual assault perpetrator communicating with the victim. The age, education, occupation, and other attributes of the relevant parties may guide you to a more precise understanding as well. For example, the clap emoji (a pictograph of two hands coming together) has been used by pop-icons of the current generation to draw attention to or emphasize an idea (think exclamation mark).[35] Other examples include sexual connotations associated with eggplant[36] emoji and scissor[37] emoji. However, a legal professional may never have known these unique meanings if they didn’t search for a meaning of the emoji outside of the communication’s context.

EXPLAINING EMOJIS IN FILINGS AND DECISIONS

Explaining the use of an emoji or emoticon can be difficult if all the context and definitions you find relevant are not included. Likewise, when a court is explaining the facts or its decision, extra consideration should be given to explain the emoji itself as well as the outside factors the court considered in understanding the emoji. Describing the emoji in quoted statements from text messages, such as [winking emoji] or [smiling emoji], may be insufficient if you are expecting the reader to have a fuller understanding of how the emoji was used. It can be argued that even the simple identifier of [smiling emoji] is already inadequate because there are different types of smiles, skin tones, and some smiling emojis may have other defining characteristics. This is why, if at all possible, the emoji itself should be entered as an exhibit or inserted into the text of the filing or court decision. Another option is to cite web sites in filings and court decisions that allow the reader to go to the website and see the emoji for themselves. There are assuredly technological issues to address. But given the increasing use of emojis and the multitude of variations, we may already be behind as a legal profession in explaining which emoji we are referencing, when addressing opposing parties, appellate courts, and clients.

CONCLUSION

The use of emotional identifiers has evolved from clarifying only the tone of a message at Carnegie Mellon, to a robust mode of communicating meaning. This evolution has caused a parallel shift in the thinking of courts as they confront an increasing number of evidentiary issues associated with the use of emotional identifiers. Attorneys must be attune to emojis and emoticons, and work to understand their place in our digital lives. From a cultural perspective, expanding our modes of communication through symbols adds to the nuances of how we exchange information (we’ve communicated through symbols for much of our history, i.e., alphabets). But courts and the various parties involved with them should spend additional time understanding these nuances and appreciating what they may do for their interests.

About the Author

Captain Patrick M. Milott

(B.S., Illinois State University; J.D., Chicago-Kent College of Law) is the area defense counsel for Maxwell Air Force Base, Alabama and Columbus Air Force Base, Mississippi.

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Endnotes

[1] “Emotional identifier” is used to refer to both emojis and emoticons. The phrase “emotional identifier” may be imprecise because not all emojis or emoticons refer to emotions or feelings. For example, a mailbox emoji, in and of itself, does not evoke an emotional response. Nevertheless, the author’s use of “emotional identifier” is meant to refer to all emojis and emoticons.
[2] Scott Fahlman, :–) History, http://www.cs.cmu.edu/smiley/history.html (last visited 31 May 2017).
[3] Id.
[4] Id.
[5] Id.
[6] See generally Enjaian v. Schlissel, No. 14-cv-13297, 2015 U.S. Dist. LEXIS 68511, 2015 WL 3408805 (E.D. Mich. 27 May 2015).
[7] The Unicode Consortium, Unicode Technical Report #51 UNICODE EMOJI, 1.4 Definitions, www.unicode.org/reports/tr51/#Definitions (last visited 31 May 2017).
[8] Matthew Rothenberg, emojitracker: realtime emoji use on twitter, www.emojitracker.com (last visited 31 May 2017).
[9] The Unicode Consortium, supra note 7.
[10] Enjaian, 2015 U.S. Dist. LEXIS 68511, at 8–9.
[11] Id. at 3.
[12] Id. at 3 n.3.
[13] Id. at 3.
[14] See University of Alberta, Research finds that culture is key to interpreting facial emotions, EurekAlert! (4 Apr. 2007), https://www.eurekalert.org/pub_releases/2007-04/uoa-rft040407.php (providing a comparison between Japanese and American use of emoticons and explaining how the former focuses more on eyes as an indicator of emotion while the later utilizes changes in the mouth to show different emotions.)
[15] Enjaian, 2015 U.S. Dist. LEXIS 68511, at 15.
[16] Id. at 18.
[17] Id. at 15.
[18] See Chicago-Kent College of Law, Litigation Technology, https://www.kentlaw.iit.edu/courses/jd-courses/jd-litigation-and-practice-skills-courses/litigation-technology (last visited on 7 November 2016); Suffolk University Law School, LAW-2951 E-Discovery Law, http://www.suffolk.edu/law/academics/degrees/jd/23600.php?CourseID=521 (last visited on 7 November 2016). See generally Richard Granat & Marc Lauritsen, Teaching the Technology of Practice: The 10 Top Schools, Law Practice, July/August 2014, http://www.americanbar.org/publications/law_practice_magazine/2014/july-august/teaching-the-technology-of-practice-the-10-top-schools.html.
[19] Jones School of Law, Faulkner University, The Mockingbird Challenge National Trial Competition 26 (2016), www.trialteamcentral.org/wp-content/uploads/2016/09/Mockingbird-2016-fact-pattern.pdf.
[20] “Tweeted,” “tweets” and “tweet” refer to messages sent on Twitter, which is an online news and social media platform allowing users to send publicly viewable messages containing up to 140 characters, including emojis and emoticons. If someone is a logged in to Twitter, they can send and view messages. Those that are not logged in, can only view messages.
[21] In re L.F., No. A142296, 2015 Cal. App. Unpub. Lexis 3916, at 2–3 (Cal. Ct. App. 3 June 2015).
[22] Id. at 2 n.3.
[23] Id. at 6.
[24] Id.
[25] Id. at 12.
[26] Id. at 12–13.
[27] Id.
[28] The imagery of an interpretation spectrum is used to draw out the idea that not every use of emojis or emoticons will require a weighing of their meaning. The author nevertheless suggests that while in practice, it is best not to think of a spectrum but a graph with x, y, and z axes which can better account for the depth and complexity of most cases.
[29] In re L.F., 2015 Cal. App. Unpub. Lexis 3916 at *3.
[30] See Black’s Law Dictionary (8th ed. 2004); The Law Dictionary, https://advance.lexis.com (follow “Secondary Materials” hyperlink; then follow “Dictionaries” hyperlink and search “emoji”).
[31] This author could find no military appellate court that has referenced emojis in their decision. While this is not surprising because of the few state and federal cases mentioning emojis, it is only a matter of time before emojis start making their way into more court decisions. While not documented in publicly available records, this author has prosecuted and defended multiple individuals where emojis were at least part of the evidence submitted in the adverse action.
[32] Given the increasing number of emojis that on their face have nothing to do with emotion, the phrase “emotional identifier” does not fully capture pictographs such as yellow sneakers and bento boxes at first glance. Nevertheless, as the word “emoji” encompasses the root of “emotion,” a practitioner should not be surprised if the facts of a case point to an emotional meaning for symbols as seemingly innocuous as yellow sneakers.
[33] Leena Rao, Kim Kardashian’s Emoji App Is Topping Apple’s Charts, Fortune (5 February 2016), www.fortune.com/2016/02/05/kim-kardashian-kimoji.
[34] The Unicode Consortium, What is Unicode?, www.unicode.org/standard/WhatIsUnicode.html (last visited 31 May 2017).
[35] Know Your Meme, Clap Emoji, www.knowyourmeme.com/memes/clap-emoji?full=1 (last visited 31 May 2017).
[36] Know Your Meme, Eggplant Emoji, www.knowyourmeme.com/memes/eggplant-emoji (last visited 31 May 2017).
[37] Bellisle v. Landmark Medical Center, 207 F. Supp. 3d 153, 160 (D.R.I. 15 September 2016).

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