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January 24, 2024 Feature

Is a Picture Worth a Thousand Words? The Role of Imagery in Judicial Opinions

By Justice John G. Browning (Ret.)

Renowned legal philosopher Jerome Frank wrote extensively about judicial decision-making, including the importance of finding alternative ways to express experiences that are difficult to capture in words. Scholars interpreting Frank’s work have commented on how “visual persuasion”—the use of images, like photos, in judicial opinions—can be a form of judicial candor and authenticity. If that’s the case, then few judges have been more candid and authentic than U.S. District Judge Mark Walker of the Northern District of Florida (Tallahassee Division).

In June 2022, Judge Walker was presiding over the case of Courthouse News Service v. Brenda D. Forman et al. It was a contentious First Amendment dispute in which Courthouse News Service claimed that its constitutional right to timely access to court documents was being violated by delays on the part of the Broward County Circuit Court to make civil complaints available to the public. The defendants responded that while one defendant blindly transmitted complaints, these e-filings had to be reviewed by another defendant for the minority of cases requiring designation as confidential. Judge Walker decided to express his frustration with the defendants’ finger-pointing tactics in an unusual way. In his decision, Judge Walker included an image of the popular “Pointing Spiderman” meme, in which two animated Spidermen are pointing at each other. Keenly aware of the pop-culture significance of the meme, the judge even included a helpful footnote about it. The meme alone, however, conveyed Judge Walker’s main point—that neither government defendant “can escape liability by shifting blame to the other, nor can they evade constitutional scrutiny by maintaining an administrative labyrinth,” making both defendants “responsible for the alleged constitutional violation.” And just in case his message wasn’t clear enough, his meme labeled each Spiderman with the names of the two Broward County officials. He also added that “[O]ne final point, this isn’t Who’s on First. Defendants must move past pointing fingers at each other like the spidermen pictured above.”

To date, no other judges have followed Judge Walker’s example and added memes to their judicial toolkits. Nevertheless, memes are leaving an indelible impression on our justice system. Defined by Merriam-Webster’s dictionary as “an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media,” memes have become an integral part of online communication. From the “crying Michael Jordan” to the “condescending Willy Wonka,” and from “distracted boyfriend” to “Kermit the Frog drinking tea,” memes have become a kind of cultural shorthand. As one scholar has described memes as communicative tools, they “may contain little to no text at times, yet they convey emotions, concerns, points of view, and even feelings that are unable to be expressed by the longhand written word.”

Because lawyers are increasingly using this form of unspoken communication as evidence in court, judges in the digital age are confronting memes more and more. Memes can provide critical evidence of a criminal defendant’s motive or intent. For example, in the high-profile trial of James Fields for the hate crime of driving his car into a group of counter-protesters at the August 12, 2017, Unite the Right rally in Charlottesville, Virginia (killing one and seriously injuring eight others), the prosecution introduced two memes Fields circulated on Instagram. Both memes depicted “a motor vehicle violently driving into a group of pedestrians, running some over, and flinging others into the air, because the driver was ‘late for work.’” Fields’s memes included the caption “When I see protesters blocking.” Affirming the trial court’s decision to admit the memes, the appellate court held that “Memes depicting a car driving destructively into a crowd of protesters constituted relevant circumstantial evidence that was probative of Fields’ intent due to the memes’ striking similarity to the act Fields committed.”

Memes have been admitted as evidence not just in cases involving hate crimes but also in cases involving human trafficking, termination of parental rights, drug charges, and even defamation. In criminal cases, meme evidence has been key in proving motive or negating claims of self-defense. In one recent Texas case, a convicted murderer contested the admission of his use of allegedly racist memes, claiming they were unfairly prejudicial. The appellate court disagreed, analogizing memes to drawings by a defendant that “can reflect his character and/or be demonstrative of a motive for his crime.” “Memes,” the court elaborated, “could very well be considered the modern-day equivalent of drawings that . . . had an inferential bearing on appellant’s character for violence and were evidence of his hatred. . . .”

As the environment of digital communications in civil and criminal cases continues to grow, judges cannot afford to dismiss memes as trivial or inconsequential to a case. Instead, they must regard memes for what they are—yet another form of electronic communication being used by litigants, their counsel, and even judges themselves (more and more opinions include the memes themselves). Counsel have even filed briefs featuring memes as part of their argument. In one recent amicus brief to the U.S. Supreme Court in a case involving federal takings, for example, the amicus counsel used a popular five-panel meme of photos from the reality TV show American Chopper to summarize how property owners feel about the doctrine of exhaustion of state remedies. If advocates are using memes in their briefs, and evidentiary consideration of memes continues to grow, it’s just a matter of time before more judges embrace this form of nonverbal communication in their opinions.

Judges have already made this leap with another mode of digital communication: emojis. These pictographs have exploded in their use in our society (there were more than 3,600 unique emojis in the Unicode Standard as of September 2021), and consequently on the legal landscape as well. Since 2018, there has been a steady rise in the number of reported cases referencing emojis each year (there are more than 37 U.S. court opinions just referencing the “thumbs-up” emoji, for example). Emojis have been critical evidence in defamation cases, employment law, personal injury matters, commercial litigation, contract construction, and even securities fraud cases. Because of this, judges have the critical task of understanding and interpreting this form of electronic communication. An emoji can add context and nuance to the accompanying text, to the point of altering the words’ meaning. Yet despite this importance, only about 10 percent of court opinions integrating emojis include an image of the relevant graphic.

Consider the widely reported 2023 Canadian case of South West Terminal Ltd. v. Achter Land & Cattle Ltd., in which the judge ruled that a “thumbs-up” emoji is just as valid as a signature. A grain buyer sent a text message that it was looking to buy 86 tons of flax at $17 (Canadian) per bushel. Farmer Chris Achter responded affirmatively with a thumbs-up emoji but did not deliver the flax timely (and by that time, prices for the crop had increased). Although Achter maintained his “thumbs-up” emoji signified only his receipt of the contract and not his agreement to it, Justice Timothy Keene of the Court of King’s Bench disagreed. Citing the court’s “far flung search for the equivalent of the Rosetta Stone in cases from Israel, New York State, and some tribunals in Canada, etc. to unearth what a ‘thumbs-up’ emoji means,” Justice Keene wrote that while the emoji might be a nontraditional means to sign a document, nevertheless “under these circumstances this was a valid way to convey the two purposes of a ‘signature.’” Justice Keene also noted the importance for courts to consider the significance of emojis. He wrote that the court “cannot (nor should it) attempt to stem the tide of technology and common usage” of emojis. He also sagely observed, “[t]his appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like.”

The Canadian court’s decision followed a 2022 New York state court case, Lightstone RE LLC v. Zinntex LLC. In this case, the buyer ordered $2.1 million of personal protective equipment and wired the money to the seller—only to receive nothing in return. The buyer canceled the order, and the parties negotiated a refund via text message. After the plaintiff sent a text summarizing the payments expected, the defendant responded the same day with a “thumbs-up” emoji. Conceding that a thumbs-up emoji may convey different meanings, the court decided granting summary judgment was not appropriate. However, interpreting the entire text message in context, Justice Leon Ruchelsman still found in favor of the plaintiff.

More recently, the federal court in Delaware underscored the importance for a court to be aware of the potential for multiple meanings of emojis and the importance of context in a case of purported securities fraud captioned In re Bed Bath & Beyond Corp. Securities Litigation. Acknowledging that “Emojis are symbols” and “[l]ike symbols, language can be ambiguous,” the court nevertheless stressed, “Just because language can be ambiguous does not mean it is not actionable or capable of being correctly understood.” At issue was the alleged fraudster’s use of the “full moon face” emoji in a tweet symbolically communicating the stock price was “headed to the moon,” which the court found to be “plausibly misleading because it was perceived as a rallying cry to buy Bed Bath & Beyond’s stock, even though the defendant has soured on [it].” The court stated, “Emojis may be actionable if they communicate an idea that would otherwise be actionable. A fraudster may not escape liability simply because he used an emoji. Just like with words, liability will turn on the emoji’s particular meaning in context.”

Nor is this the only recent securities fraud case that hinged on judicial interpretation of emojis. In February 2023, in Friel v. Dapper Labs, Inc. et al., U.S. District Judge Victor Marrero of the Southern District of New York held that the defendants’ offer of non-fungible tokens (NFTs) for sale to the public violated certain U.S. Securities and Exchange Commission regulations. Describing the defendants’ tweets promoting recent sales of the NFTs in question, Judge Marrero observed that while “the literal word ‘profit’ is not included in any of the Tweets, the ‘rocket ship’ emoji, ‘stock chart’ emoji, and ‘money bags’ emoji objectively mean one thing: a financial return on investment.” Accordingly, the court denied the defendants’ motion to dismiss.

As cases like these demonstrate, judges play a critical role in the interpretation of these various forms of wordless communication, and judges can reinforce their credibility and accessibility when they include the memes or emojis at issue in their opinions. Judges have to be cognizant of several important factors, particularly with regard to emojis. The first is one that judges considering emojis seem to be well-acquainted with: Once an emoji is in the record, the judge must examine the context, including evaluating any accompanying text and whether the emoji materially alters the intended meaning of the message. For example, a seemingly innocuous statement in text may appear straightforward in meaning, but the addition of a “winky face” emoji at the end may indicate that the sender was being sarcastic or otherwise not serious in their intent.

Second, judges need to be aware that emojis themselves can be subject to multiple meanings. For example, the “person with folded hands” emoji usually signifies prayer. But, depending on the country and context, it can also mean “please,” “thank you,” and even “high five.” Judges must also be mindful of platform-specific slang, which can develop along geographical, cultural, and linguistic lines. While the “thumbs-up” emoji typically signals agreement or acquiescence, in certain cultures, it means an emphatic “no.”

A third issue for judges to be aware of is the fact that emojis may change depending on the device and depending on the time frame. When an emoji is transmitted across different platforms, each platform translates the graphic differently. In other words, depending on the operating system and device, the emoji graphic that the sender sees while using one device will not appear identical to the emoji graphic the recipient sees while using a different device. And even on the same platform, an emoji may change over time. A great example of this—and of the importance of having a tech-savvy judge—is the case of Rossbach v. Montefiore Medical Center. Plaintiff Rossbach worked at the medical center and accused her supervisor of sexual harassment and the medical center of retaliation. The heart of her “evidence” was text messages from her supervisor with the “smiley face with heart eyes” emoji. The plaintiff claimed to have received these alleged messages on her iPhone 5, but there was something off with her screenshot of the purported texts during discovery. The sharp-eyed judge noticed the “heart eyes” emoji was of a particular version found only on an iOS13 or later edition iPhone. This observation caused the court to conclude the plaintiff fabricated the text message “evidence.” Unsurprisingly, once the subterfuge was discovered, the lawsuit was dismissed.

In short, judges navigating this emerging world of emoji communication are well-advised to heed the following guidance. First, make sure lawyers present the exact depictions seen by their clients due to the potential for variation. Second, make sure fact finders see the actual emojis as opposed to merely hearing testimony referencing or describing emojis. Finally, display the actual emoji in their opinion rather than omitting them or trying to characterize them textually.

Judges have to appreciate the importance of nonverbal communications, such as memes and emojis, and the necessity for understanding and interpreting them contextually. According to a survey conducted by Adobe in 2019, 92 percent of the connected population reported using emojis in their personal communications, with 61 percent admitting to utilizing emojis at work. Traditionally, judicial writing has been driven by text, and the use of communicative images to convey the court’s points has been discouraged. The author, for example, recalls the notoriety surrounding Judge Richard Posner’s decision to incorporate photographs of a model wearing the safety clothing at issue in a Fair Labor Standards Act case, Sandifier v. U.S. Steel Corp.

But technology is here to stay, and judges must (where appropriate) break out of what one author has described as a text-only “stylistic straightjacket” and “escape the typographic flatlands.” Images, such as memes and emojis, are efficient, accessible, and memorable forms of communication—particularly for 21st-century readers. They can also be a powerful form of conveying or reinforcing one’s point. Consider, for example, the dissenting opinion of Judge Damon Keith in a case involving the constitutionality of Ohio’s voting laws, which were upheld by the majority. Judge Keith wrote that he was “deeply saddened” by what he viewed as a backward step in the battle for equal voting rights in the United States. But rather than belabor his point verbally, Judge Keith included 37 photos of persons killed while struggling for voting rights in the 1950s and 1960s (along with brief bios). Or for a very recent example, consider U.S. District Judge Gary R. Brown, who used the “ head exploding” emoji to express his frustration with the attorneys’ fee request in a class action employment lawsuit that had just settled.”

Imagery can indeed be a powerful way for courts to communicate. Given the rapid pace of technology and advances in digital communications, it may also be a necessary one.

    Justice John G. Browning (Ret.)

    Faulkner University’s Thomas Goode Jones School of Law

    Justice John G. Browning (Ret.) is a retired justice who served on Texas’s Fifth Court of Appeals and who now serves as Distinguished Jurist in Residence at Faulkner University’s Thomas Goode Jones School of Law. A graduate of Rutgers University and the University of Texas School of Law, Justice Browning (Ret.) is the author of five law books and more than 50 law review articles.

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