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Be Careful What You Emoji

As emoji become a part of our social fabric, they also are factoring into more criminal cases.
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(Photo: theusfalcao/Flickr)

You can use them to recap an entire season of Game of Thrones, explain evolution, or win a game of Connect Four on Tinder. Now, our ever-evolving relationship with emoji has penetrated the criminal justice system.

News emerged this week that the trial of Ross W. Ulbricht, the alleged mastermind behind black market website Silk Road, has been waylaid by concerns about how emoji communication are presented. The New York Times reported that a prosecutor read one of Ulbricht's posts out loud, omitting an emoji:

Eventually, the judge, Katherine B. Forrest, instructed the jury that it should take note of any such symbols in messages. “That is part of the evidence of the document,” she explained. ... “The jury should read them,” the judge said. “They are meant to be read. The jury should note the punctuation and emoticons.”

But exactly how strong of evidence can emoji be? After all, they're notoriously easy to send without serious intent, and they're prone to misinterpretation. Some emoji take on subjective meanings in certain social groups. In the Pacific Standard work chat, for instance, a "corn" emoji has replaced the "thumbs up" simply because we grew tired of the latter.

In the case of a New York teenager who posted "threatening" emoji on Facebook last week, police thought the evidence was strong enough for an arrest. According to DNAinfo, "And at 11:05 p.m., [the teenager Osiris] Aristy posted 'F**k the 83 104 79 98 73 PCTKKKK,' followed by the police officer emoji with two gun emoji pointed at it, the DA's office said." What's especially odd in Aristy's case is that—while it's hard to deny the meaning of that particular emoji combo—he never used actual words to threaten violence against police officers.

That contrasts with the case of Ismaaiyl Abdullah Brinsley, the shooter who killed two Brooklyn cops last December in apparent revenge for the choking death of Eric Garner. Afterward, it was discovered that he had posted threats on his Instagram account, including multiple explosion emoji followed by a gun emoji and the hashtag #ShootThePolice. A detailed report by BuzzFeed News notes that Aristy's arrest was likely an overreaction linked to the Brinsley case. It was made possible by a wide-ranging state statute enacted in New York after 9/11 that says threatening speech is illegal regardless of the speaker's ability or will to carry out the threats.

As far as U.S. case law goes, the Supreme Court has ruled that the First Amendment guarantee of free speech does not protect those who make "true threats." What constitutes a true threat, however, is still a matter of debate: How much does the speaker's intent or ability factor in? What about the victim's perception, or the context in which the threats are delivered?

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Threats posted on Instagram prior to the shooting of two Brooklyn cops. (Photo: Instagram/IBTimes)

In one case that may inform the emoji-as-threat debate, Planned Parenthood v. American Coalition of Life Activists, anti-abortion activists created a website with a list of names of doctors who perform abortions, indicating the ones who were still working (black font), wounded (grey font), and dead (strikethrough). They also created posters with the names, photos, and addresses of these doctors, three of whom were murdered by anti-abortion activists after the posters were created. The case went through a few reversals, but the Ninth Circuit court eventually ruled that the website and posters did not receive First Amendment protection. Despite not making any explicit threats, "the 'pattern' in which the posters appeared coupled with the fact that other abortion providers had been killed, transformed the posters into something of a symbolic threat."

These negotiations over a speaker's intent, the receiver's interpretation, and the law's interpretation are occurring at a snail's pace compared to the evolution of communications technology—except, of course, when the prospective victim is the legal system itself. In other news, law enforcement officials are still ignoring violent and explicit threats made against women on the Internet—using real, candid words and actions.