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We've come a long way from the simple :). That little smiley, invented over 30 years ago, has now been supplemented by a host of emoticons and emojis, the little pictorial characters meant to convey a writer's mood, expression, or, well, whatever a frog face, burrito, and dancing woman are supposed to mean.
And there, of course, is the rub. Often, emoticons can add more ambiguity than clarity to a message. So what's a court to do when "I'm going to kill you :P" is admitted as the prosecution's smoking gun?
Back in June, we wrote about "the difficulties of determining intent in the emoji age." Emojis, and their more primitive emoticon ancestors, make their own sort of language, but a language that is hard to decode. Sure, there is an emoji version of Moby-Dick, but "(phone) (man's face) (smiling poop) (mailbox)" only makes sense if you know "Call me Ishmael."
When emoticons were first dreamt up, way back in 1982, they were meant to be clear, simple markers. Scott Fahlman, a computer science professor at Carnegie Mellon, suggested using the 🙂 to mark jokes and to mark all that is not jokes with :-(. The meaning of emoticons wasn't so easily contained, however, and a smiley face soon developed a variety of ambiguous, amorphous meanings dependent upon context and the reader's understanding of intent -- which makes interpreting emoticons and emojis in court a bit difficult. Is a text message of "hey, you own me money (gun emoji)" threatening or sarcastic?
Court's have been grappling with how to treat emojis and emoticons. If there's a trend, it's to ignore them. Take, for example, the case of "L.F.," a Bay Area high school student. L.F. went on a two to three hour tweeting spree, sending out threatening messages about attacking her school. But, she included emojis. "I'm leaving school early and going to get my cousin gun now (three laughing emojis and two clapping hands emojis)," she wrote. "Ain't nobody safe ('100 percent' emoji)." She was convicted of making felony threats. The court simply found that her tweets did nothing to change the intent of the message.
Slate recently reported on a similar a federal case out of Michigan, in which the court was "asked to rule on the meaning of ':-P.'" There, a University of Michigan law student sued a woman who reported him for stalking and harassment, Slate's Amanda Hess reports. Sure, he'd sent messages to a friend saying he was a "petty bastard" seeking to push the woman into "deep dark pits of depression." But, like L.F., he claimed that the inclusion of emoticons changed the meaning of the text. Like L.F., he faced an unconvinced court. The emoticon "does not materially alter the meaning of the text message," the judge ruled.
Attorneys should expect our emoji jurisprudence to get any clearer in the near future. Intent, as always, is a tricky, fact-specific question. But, there are some patterns that have emerged. As Hess notes, a recent study by Slovenian researchers sought to create an "emoji sentiment ranking" -- that is, to catalogue which emojis were most closely related to particular sentiments by looking at their common uses.
The heart emoji was the most clearly positive. The wrench was often negative. Strangely, so was the melon emoji. So, even if the courts don't give emojis much weight, the next time someone texts you wrench melon wrench, you better watch out.
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