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When is a 💗 not a heart? Emojis and the law

Sept. 6, 2021

So, you think you know modern slang. But do you understand emojis? Try this one:

It happened at a California court hearing. A 15-year-old girl was testifying against a gang member. Another gang member watched the testimony and posted this message to Facebook: “#RteNow yah lookn 👀 at the bitch 👇👇👇 dat tld on the homie Baby Ticc 👌👌👌🐀🐀🐀🐀 #TW 💥💥💥💥🔫🔫🔫 share my post.”

Was that witness intimidation?

Yes, said the California Court of Appeals in 2019. Baby Ticc was the defendant and TW was the witness. The message seemed to say that TW was a rat for testifying against Baby Ticc and should be shot. The Facebook poster was convicted of witness intimidation and the appeals court upheld that conviction.

“The four gunshot emojis and three gun emojis were evidence (the defendant) was seeking to encourage other viewers of his Facebook page to shoot (the witness),” the appeals court ruled.

Reading emojis is tricky enough in casual texts between friends, but it’s much more complicated in American courthouses. So said six panelists, including four judges and former judges, at a recent American Bar Association webinar.

The program, “The Emoji’s Gambit: Legal Issues in Admitting Emojis as Symbols of Evidence,” was hosted by the ABA Judicial Division and co-sponsored by the ABA Young Lawyers Division and Thomson Reuters.

Emojis are “the up-and-coming trend in all things communications,” said moderator Colleen O'Toole, a prosecutor in Ashtabula County, Ohio, and a former state appeals court judge.

Emojis are “growing exponentially in the courtroom,” said Eric Goldman, a law professor at Santa Clara University in California. In 2019, emojis and emoticons appeared in 101 court opinions — nearly double the number of just one year earlier, Goldman said. In 2014, only five court opinions included emojis.

But understanding precisely what particular emojis mean can be tricky. Even commonly understood emojis — the smiley face, for example — can appear differently on different services, and can even appear differently on the same service over time, Goldman said.

For example, Goldman noted, the smiley-face emoji looked more like a grimace in Apple’s early iOS 6, 8 and 9, and might give the person receiving it the impression that the sender is ready to fight. The emoji become more like a wide grin in iOS 10 and 11. 😁

Goldman also showed different emojis for the astonished face — the one with the mouth and eyes in a wide OOOH! 😲 On one service, the face looked more angry than surprised, and on another, with the eyes as X’s, it looked like the symbol for a dead man.

As a result, the sender and receiver sometimes do not see the same emoji, which can create “some bizarre misunderstandings,” Goldman said.

Panelists cited several cases of ambiguous emojis and said some emojis can take on unusual meanings in niche communities. For example, among pedophiles, a growing heart emoji 💗 symbolizes a young girl, and a crown emoji 👑 can indicate that the poster is a minor with a pimp controlling them, Goldman said.

In some cases, courts have ruled that emojis can totally change a sentence’s meaning. For example, there was the case of a criminal defense attorney sending the prosecutor this message:

stipulate that my client is guilty. : )

Did the smiley-face emoticon at the end signal that the message was just a joke between friends? The defense attorney’s client claimed a Sixth Amendment violation. The federal trial court disagreed, ruling: “No one took (counsel’s) frivolous e-mail as an actual stipulation.”

And then there was the case of an anonymous poster who complained in a public forum about a Michigan public official buying new equipment:

They are only getting more garbage trucks because Gus needs more tires to sell to get more money for his pockets :P

Was the emoticon at the end — symbolizing eyes and a tongue sticking out — a tipoff that the message wasn’t serious? An appeals court thought so, ruling that the emoticon “makes it patently clear that the commenter was making a joke… Thus, a reasonable reader could not view the statement as defamatory.”

The bottom line, according to Goldman: Emojis can look different over time and on different platforms, so it’s important to always ask what both the sender and recipient actually saw.

To judges, Goldman issued this request: “Please actually show us the right emojis” in your written opinions — “not the ones that you can generate from your desktop, but ones that the actual recipient or sender saw at the time.” The difference can be huge, he said.

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