Although the yellow smiley face ( 😀 ) has had a decades long presence in popular culture, instant communication technologies have precipitated a explosion in the use of multiple pictorial symbols, collectively called emoticons or emojis. Some decry use of emojis as a perceived regression to hieroglyph, signifying burgeoning illiteracy. Others applaud the utility of the often playful symbols as shorthand expressions of feelings as well as words.
All would be well (even if controversial) but for the tendency of the human animal toward misunderstanding in any form of communication. This presents courts with novel opportunities to consider the admissibility and meaning of the discourse of emoticons.
While the utility of a symbol is grounded in its ability to prompt instant recognition, symbols themselves are not entirely uniform and may differ in appearance depending on the platform employing the emoticon’s underlying code. Cosmetic differences are but one facet of the introduction of symbolic speech in the judicial lexicon. Emoticons, like words, have secondary meanings and nuance. Given that multiple meanings may attach to a single, superficially innocuous icon, cavalier use may be incautious.
Law Professor Eric Goldman of Santa Clara Law School, proprietor of the Technology & Marketing Law Blog, has tracked the presence of emoticons in judicial records, observing remarkable growth.
A recent overview of case law from the beginning of 2019 to the present provides some indication that the courts are not shrinking from the task of recognizing and interpreting emoji. While in one case a criminal court obtained the testimony of detectives expert in pandering, pimping, and prostitution to interpret emojis said to represent an invitation to participation in those activities, most of the cases mention emojis as if they were commonplace, or omit them and note that omission as with any other editorial intervention.
While this may be some indication of a willing judicial adoption of this emerging form of communication, in light of ongoing and often charged controversies over the use and meaning of language, it is unlikely that issues attending the emergence and widespread use of emoticons have as yet been explored in full.
What follows gathers from online resources, scholarship, journalism and case law to illustrate the emerging discourse concerning emoticons. A bit of leaven is included at the end.
Emojopedia A dictionary of emoticons with articles about the development, usage and meaning of emoticons, called emojiology (after etymology), and current news.
Netlingo A dictionary of internet terms and symbols, including news and usage data. Some entries merit the acronym NSFW (not safe for work).
The Smiley Company History and development of an array of smileys, from a global licensing company.
The Smiley Dictionary An apparent user created contribution to the resources of Computer Science House, a special interest group of Rochester Institute of Technology.
Wikipedia: List of Emoticons Provides an overview of types of emoticons and the underlying coding languages in use in producing them.
Recent Case Law
Blount v. State, NO. 14-17-00988-CR (Tex. App.). April 22, 2019. Text emojis noted in brackets without description, in the same fashion as deleted expletives.
Cannon v. Southern University Board of Supervisors, No. 17-527 – SDD – RLB (M.D. La. April 12, 2019) Use of emoji in response to request for admissions as well as threatening language part of evidence indicating sanctions appropriate.
DeLucia v. Castillo, CASE NO. 3:19-CV-7 (CDL) (D. Ga.) April 23, 2019. Emojis included in evidence of communications with child in abduction case.
Commonwealth of Pennsylvania v. Hackenberger, J-S72014-18 No. 120 MDA 2018 (Superior Court) April 16, 2019. Unpublished opinion. Text messages using emoticons relevant in child sexual exploitation case.
Commonwealth v. Hunt, 18-P-106 (Mass. App.) February 22, 2019. (Unprecedential.) Discussion of evidence suggesting witness bias in domestic assault case includes texts, including emojis.
Doe v. University of Kentucky, 5:17-cv-00345-JMH (E.D. Ky.) January 18, 2019. Post-encounter text, including emoji, part of evidence in case alleging university negligence in investigation and presentation of Title IX complaint.
Gonzalez v. State, 3-CRNo. 08-14-0029 (Tex. App. 2019). April 9, 2019. Court omits emojis and editorial remarks concerning language where the parties have placed no emphasis on the emojis.
People v. Jamerson A153218 (Cal. App. 2019). February 6, 2019. (Unpublished.) Detectives offer expert testimony concerning the meaning of crown and other emojis in pimping and pandering case.
State v. Bey, 2019 Ohio 423 (2019) Gun emojis posted on Facebook page part of evidence in criminal trial.
State v. Polchert, Appeal No. 2018AP849-CR (Wis. App., 2019) March 26, 2019. Emoji showing ‘broken heart’ included in evidence of online exchanges in case charging use of computer to commit sex crime.
State v. Berrios, AC 40043 (Conn. App. 2019). February 5, 2019. Emojis noted as redacted in transcript of text exchange in witness intimidation case.
State v. Foster, No. E2018-01205-CCA-R3-CD (Tenn. Crim. App.) April 10, 2019. Emojis noted in transcripts of exchanges in case of aggravated rape of a minor.
State v. Potter, No. E2015-02261-CCA-R3-CD (Tenn. Crim. App. 2019) February 5, 2019. Smiling emoji noted and redacted in transcript of email exchange in first degree murder case.
…and some comedic observations (NSFW):