Can Using the Wrong Emoji Land You in Court?

As unbelievable as it may sound, the emoji you use in your texts or social media posts could potentially end up being debated in court. As more and more of us turn to our smartphones in our daily communications, law enforcement and judicial officials are trying to decide if using certain emoji can constitute a criminal threat — or prove that an otherwise “threatening” statement was meant only as a joke.

This is the question at the heart of a recent Fairfax, Va., court case, where a 12-year-old girl was charged with issuing threats against her school in an emoji-laden Instagram post. The message, which is understandably a little troubling, read: “Killing [gun emoji] meet me in the library Tuesday [gun emoji] [knife emoji] [bomb emoji].” Despite finding the threat “not credible,” the school has continued to pursue legal action against the middle schooler. The girl’s mother claims the posts were not serious and were made in response to being bullied by classmates.

It’s not the first time lawyers have found themselves arguing over what defendants really meant when posting emoji-laden messages. Last January, 17-year-old Brooklyn resident Osiris Aristy was arrested for making terrorist threats after posting Facebook updates featuring gun emoji pointed at an emoji of a police officer. While a grand jury eventually decided the evidence wasn’t strong enough to pursue a case, the fact that the NYPD was unable to determine if the posts were a credible threat or simply online posturing sets a troubling precedent.

In some cases, the use of emoji or emoticons has been presented as a different kind of evidence: as proof that a threatening-sounding status update was actually a joke. That was the case with Anthony Elonis in 2014, who posted multiple Facebook statuses that referenced killing his estranged wife.

He was sentenced for 44 months in prison before appealing his case to the Supreme Court, where he argued that he had simply been posting song lyrics and hadn’t meant to make any threats against his wife. Because he’d added a smiley face at the end of the text, his lawyers were able to successfully argue that the posts hadn’t been meant to be taken seriously, and his conviction was overturned in June 2015.

It’s hard to know where to stand on such cases. While no one wants to see a middle school student sent to jail over an ill-advised Instagram post, it’s easy to see how these messages could be interpreted as potential threats. And in a post-9/11 society, law enforcement officials are understandably nervous about writing off threats as unsubstantiated without an investigation. After all, if a threat they’d dismissed turned out to be serious, the public outrage would be enormous. (On the other hand, officers also risk potential ridicule after arresting someone for posting a Fight Club quote, as in the 2009 case of Joe Lipari.)

With about 92 percent of the online population using emoji in their communications, and an estimated six billion of the images being sent each day, the number of cases like these is likely only going to rise. At the heart of the issue is the question of what certain symbols even represent — while it’s easy to take a picture of a bomb literally, emoji are often used in the context of inside jokes or sarcastic statements. Online communications can already be difficult to decipher due to the loss of facial expression, tone and other in-person context clues, and adding images to the mix just complicates things further.

All of the context behind the use of an emoji can be easily missed by police when they’re working to make a case against the poster. That’s to say nothing of cases like Elonis’s — if a winky face is all it takes to get off the hook for making online threats against an ex-partner, who’s to say that domestic abusers won’t start appending emoticons to the end of their texts or posts in order to give themselves a veneer of plausible deniability? Difficult questions like these are going to continue to plague courts in the coming years.

Photo Credit: Thinkstock

65 comments

Beryl L
Beryl L2 months ago

Wendy Johnson-Niblick, I agree, send the kid to the principal's office. They shouldn't be using their phones at school anyway unless it is to contact their parent/s. If I were a teacher I would have strict rules about even having their phones out during class and punishment for those who are caught using them. What happened to talking to your friends between classes or after school? They Would be none the worse. In fact much better and learn social skills. Someday they will find that they are missing out on life when all communication is via text. Body language and touching. Looking into someone's eyes. so many things we all learned by socializing in a normal way.

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Beryl L
Beryl L2 months ago

I found this while searching for something else and am shocked! How ridiculous!

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Siyus Copetallus
Siyus C1 years ago

Thank you for sharing.

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Rose Becke
Rose Becke1 years ago

Ridiculous

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Cela V.
Cela V1 years ago

tyfs

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Donna T.
Donna T1 years ago

thank you

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Kathryn Irby
Past Member 1 years ago

Given all the problems in this World, this is simply Ridiculous!

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Randy F.
Past Member 1 years ago

Thanks

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Manuela C.
Manuela C1 years ago

Ridiculous.

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Donna T.
Donna T1 years ago

more foolishness...

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