While communicating via emoticons (keyboard generated), emojis (computer-generated), and other wordless methods (such as GIFs, JPEGs, memes and pictures) may seem like a development that came to prominence through the new and still-developing age of electronic communication, the idea of wordless communication has been around at least since mechanical printing came into existence. Wordless communication has blossomed a millionfold with the advent of computerized social networking, and as a result, it continues to gain prominence in the courtroom. The existing and developing case law indicate the possibilities are endless.
Once a wordless communication is admitted into the record, courts look to the surrounding circumstances to interpret the communication. This analysis generally includes scrutiny of the accompanying text and whether the emoticon/emoji materially alters the intended meaning of the message. At first glance, the emoticon/emoji may seem innocent or harmless, such as a simple smile, wink or sad face used to communicate happiness, humor or sadness. However, taken in the context or community in which the communication is used, the meaning may be interpreted differently in the eyes of the sender and/or recipient. For example, in the 2014 Ghanam v. Does case, the Michigan Court of Appeals had to analyze the facts and circumstances surrounding a defendant’s use of the “sticking out tongue” emoticon within a communication in a defamation case. Based on the hyperbole surrounding the emoticon, and the emoticon itself, the Michigan Court of Appeals found that the communication was a joke. The text when connected to the emoticon was not intended to be taken seriously as asserting facts, which, along with other points analyzed, negated the defamation claim in the defendant’s favor. On the other hand, in 2019, in Commonwealth v. Danzey, the Superior Court of Pennsylvania upheld the conviction of a defendant for stalking and harassment that was based in part on a social media post whose wording demonstrated the defendant’s state of mind, revealing his criminal intent, despite the words being accompanied by the common “smiley face” emoji. The same year, a Texas appellate court, in Kryzac v. State, upheld the conviction of the defendant for manslaughter. The evidence included a series of text messages that shed light on the nature of the relationship of the defendant and the victim; one of them included a “frowning face” emoji.
In some cases, the context of the emoticon/emoji may seem self-explanatory. In Ohio, State v. Disabato, a defendant was convicted of telecommunications harassment for sending unwanted text messages, some of which included “rodent” emojis. The rat emoji is often used as a euphemism for someone who is disloyal (a “rat”). In Pennsylvania, Commonwealth v. Foster, a defendant on probation for a drug-related conviction raised the suspicion of his probation officer when he posted photographs depicting guns, drugs and money along with three “pill” emoji. Those cases seem obvious, but things are not always as they seem.
Emoticons/emojis should not be considered a universal language having universal meaning. Assuming a specific definition of an emoticon/emoji, as one might find such definition on Google, can be dangerous. For example, according to testimony in a pandering case, the crown emoji represents the pimp being the king, and high heels together with a money bag refers to prostitutes wearing high heels to make money. Thus, lawyers may need the wisdom or knowledge of those unique meanings along with expertise in a particular industry to assure the court is aware of context. For example, a sex trafficking forensic expert testified that the high heels next to the money bag along with the text “Teamwork make the dream work” implied a working relationship between prostitute and pimp. The defendant conversely argued that he was trying to establish a romantic relationship. Having knowledge of and digging deeper into these communications can be crucial in a lawsuit.
Like certain physical actions, the meaning of symbols also varies by culture. The “thumbs up” emoji is considered offensive or vulgar in many countries in the Middle East. The “smiley face” emoji is often taken as expressing sarcasm in China. Yet, without further context, both are often considered a positive expression in most other countries. Emoticons/emojis are also subject to misinterpretation when used without text. Samantha Murphy Kelly explained on CNN that, for example, a “sunglasses” emoji could be used to convey a sunny day, feeling cool or to say “deal with it.” Similarly, a “smoking nose” emoji could be read as angry, when the sender actually meant triumph.
Age of the sender and recipient also makes a difference. The intent of an adolescent may well vary from the intent of an adult, and the examining attorney should seek the actual meaning and bring this to the Court’s attention. In Nebraska, in J.S. v. Grand Island Public Schools, school officials determined that a “fire” emoji posted by a student, along with the surrounding circumstances, suggested a violent attack would occur at school the next day. In Maryland, In re M.J., a teen was disciplined for posting comments about a girl he had dated accompanied by “masked face” emojis. Emojis are also used as a bullying weapon. In Colorado, a high school student was disciplined for making fun of another student’s body followed by “laughing” emojis (Shen v. Albany Unified School District).
Along with the complexities of interpreting the meaning and intent of the emoji in court is the issue of competing platforms (Apple, Samsung, etc.). Although there is some uniformity in coding (the Unicode Consortium sets the standards for emojis), each company designs their own platform. These unique platforms sometimes result in inconsistencies and miscommunications. The sender of an emoticon may select one emoji utilizing the sender’s platform, yet the receiver may receive a different-looking emoji using the receiver’s platform. The different look may result in a different interpretation by the receiver than was intended by the sender. Thus, like many other instances of legal interpretation, intent becomes a primary issue. For example, the “gun” or “pistol” emoji was changed by Apple to a “water pistol” or “toy gun” emoji in 2016. However, when received by a different platform, that water pistol or toy gun emoji might still appear to be a regular “gun” or “pistol” emoji; thereby possibly manifesting a completely different intent to the recipient than what was intended by the sender. The same issue can arise with postings and comments on Facebook, Twitter and other social networks. An emoji posted on Twitter by an Apple iPhone might appear different when the post is viewed on a Samsung phone. Courtroom inquiries must be tasked to drill down exactly what was intended on each side, and whether that intention is misread by an alternate platform.
For those intrigued by the complexities of this topic, the work of Professor Eric Goldman of Santa Clara University School of Law is an excellent source of legal disputes involving these wordless communications. Goldman kept a running study of judicial opinions that mentioned emojis/emoticons used in court between 2004 and 2019. Goldman’s list includes the case citation, type of emoticon/emoji, method of communication (email, text, etc.), whether the court allowed it to be published to the trier of fact, and the specific legal issue addressed. In addition to criminal charges and charges associated with harassment and the like, Goldman cites to cases addressing issues such as contract disputes (establishment/breach), defamation and patent/copyright. Some cases address attorneys individually. For example, some of the cases cited to mention issues of attorney discipline, attorney’s fees and formation of the attorney-client relationship. Goldman’s studies teach us that lawyers must be wary of the potential of emoticons/emojis in creating contracts or other agreements, including those between the attorney and the client.
Litigators should narrow their focus when interpreting wordless communications. The focus should be on factors such as the sender’s and recipient’s intent, surrounding circumstances and accompanying text. Litigators should also keep in mind age of the parties involved and varying cultural opinions as they apply to specific witnesses, while investigating any differences as a result of the use of different technological platforms. Judges will be faced with the same challenges in their decision-making process. When it comes to emoticons/emojis and other wordless communications, 1 + 2 does not always equal 3—and things often are not as they may appear merely because of a certain electronically generated animated face.
