Why Are Courts So Stuck On Emojis?

By Zosha Millman | LXBN | March 2, 2016

A week ago Facebook introduced five new reactions consumers can now use to respond to content on the social media site. But the law is still dealing with the last batch.

If you’ve texted anyone in the last year you’re probably aware of the availability of emojis, the small digital icons embedded in text used to express ideas or emotions. It’s sometimes used as an illustration, sometimes as a punchline. But as The Washington Post noted in a feature the other day, authorities aren’t laughing.

That’s why a 12-year-old from Fairfax, Va. has been charged with threatening her school, even though the only evidence authorities point to is an Instagram post made in December that included “Killing ,” “meet me in the library Tuesday,” and “  .” That may seem absurd to most, but the truth is this is far from the first time a court will be confronted with translating emoji to intent, as the Washington Post writes:

Police are trying to judge just how serious to take threatening messages using emoji, which are most often deployed in a light-hearted manner. Attorneys have argued over whether emoji should be presented to juries as evidence. Experts say the biggest problem is simply determining in court what a defendant actually intended by sending a particular emoji.

Is a winkie face emoji ironic, flirtatious or menacing? What exactly do the popular dancing girl or grinning pile of poo emoji actually mean — if anything — when appended to a message? Emoji have no set definition and their use can vary from user-to-user and context-to-context.

“You understand words in a particular way,” said Dalia Topelson Ritvo, assistant director of the Cyber Law clinic at Harvard Law School. “It’s challenging with symbols and images to unravel that.”

Again, that may seem crazy. There’s a big difference between pulling a gun on police and posting   to your social media account. But it’s actually a pretty big question for courts to be tackling.

Vyvyan Evans, a professor of linguistics at Bangor University who studies the use of emoji in communication, told Wired that nearly 70 percent of meaning derived from spoken language actually comes from nonverbal cues, like body language and facial expression. You’re seeing a lot more smileys because people are trying to overcome that lack of physicality.

Photo Credit: theusfalcaocc

“The stratospheric rise of emoji, [in texting, Facebook, and elsewhere] is essentially fulfilling the function of nonverbal cues in spoken communication,” Evans said in Wired.

In fact the computer science professor widely credited with inventing the keyboard-rended facial expression game in 1982 meant them to indicate tone. But in the years since as the emoticon (the plain-text cousin of emojis) lexicon has become a keyboard of hundreds of emojis to pick from, that flexibility is what makes emojis fun—and confusing for courts. Though there’s some grammatical logic to their usage, cultural context plays a big role in how one might interpret the emoji; Japan (the creator of emojis) sees it as a sign of apology or deep respect, Americans wonder if it’s someone giving a massage or doing a pushup.And one study on that published an “emoji sentiment ranking” found that the bento box and panda emojis are inexplicably associated with negative sentiments.

And that confusion is only magnified when a court is dealing with a threatening message concluded with “:P,”or a “;-)” following a summation of personal injury charges. Though courts have long had to interpret shrugs,winks, or grammatical intent when passing their judgments, the digital lexicon is new and evolving quickly. AsLauren Foster wrote on the Texas Bar Blog, the has taken on a completely separate meaning amongst youth Internet culture than its creators might’ve intended, and the context of that can raise the case above subjective analyses:

For example, imagine that a defendant’s text message of the eggplant emoji arises in a case of domestic abuse. The eggplant is located in the “food and drink” section of the Apple emoji keyboard, and appears to be an innocuous, if cartoonish, purple vegetable. The defendant wants to argue that he was referring to a vegetarian dish he planned to make for dinner later. The plaintiff disagrees, asserting that she received the eggplant in a sexually threatening manner.

As always, both sides can introduce evidence of past conduct, prior text exchanges, etc., to bolster their interpretation of the meaning. But the introduction of the Instagram data has the potential to dramatically shift the calculus away from the parties’ dueling subjective meanings to a societally objective one: the eggplant is so frequently associated with photos of male genitalia that Instagram blocks users from hashtagging the eggplant emoji. This evidence would make the defendant’s interpretation seem less likely.

With 1,281 emojis currently in the Unicode Standard list (growing every day) and cell phones usage skyrocketing, this interpretive battle is just getting started. Just remember, with great emoji power comes great responsibility—at least until the courts have some sort of standard otherwise.

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