Displaying Emoji Evidence in Judicial Opinions

This is another outtake from my Emojis and the Law paper. I’m nearly done with a massive rewrite of the paper, and this passage appears destined for the cutting-room floor. So I’m sharing it here:

Judicial opinions rarely provide images of litigation subject material. Elizabeth G. Porter, Taking Images Seriously, 114 COLUM. L. REV. 1687, 1718 (2014). That’s true even when visual issues are an essential part of the court’s analysis. See id. at 1724 (giving an example of an opinion that used 1,500 words to describe the course of three rivers, something a map could have done more efficiently).

In keeping with that phenomenon, few court opinions have displayed emojis when recounting evidence in the case. See Karen A. Henry & Jason Harrow, Exhibit A — Winky Face: Emoticon Evidence Enters Courts, Law360, Nov. 17, 2015. More typically, opinions describe the emoji textually (e.g., describing it as a “smiley emoticon”) or simply omit the emoji (saying “emoji omitted” or something similar). E.g. Gonzalez v. Texas, 2017 WL 360690, *5 n.7 (Tex. App. Ct. Jan. 25, 2017) (“Neither party has placed any significance of the emojis and we have accordingly not reproduced them in this opinion.”). In Murgia v. Commonwealth, 2017 Va. App. LEXIS 141, *12 n.2 (Va. Ct. App. May 30, 2017), the majority opinion omitted the emoji but the dissent included it.

Not showing the emojis in question strips the opinion of essential meaning. Textually characterizing the emoji masks important nuances. For example, many emojis can be described similarly. At least a dozen different Unicode emojis are characterized as “smiling” or “grinning,” but each communicates different meanings. If an opinion textually characterizes an emoji as “smiling,” which one of these dozen options is the judge referring to?

Furthermore, even if the judge may not think the differences between similar emojis matter, readers of the opinion—including appellate courts or other courts trying to cite the opinion—might feel differently. For example, consider these passages (cites omitted):

Mr. Hiller was the author of the web posting at Exhibit VV-388, which was admitted into evidence. In that web posting on February 10, 2005, Mr. Hiller, referring to a roll cage he purchased, stated in part: “Have my cage now sitting in my living room (wife’s real happy about that)…I feel like a kid at Christmas that can’t go outside and play with his new toy (emoticon omitted).” The roll cage was sitting in the living room in pieces. This web posting is probative of Mr. Hiller’s state of mind at the time and contradicts his claims that he was in constant, disabling and incapacitating pain at that time….

Mr. Hiller was the author of the web posting at Exhibit VV-266, which was admitted into evidence. In that web posting on March 17, 2005, Mr. Hiller stated, in response to a web posting by “1BLKJP” about the posts on the new roll cage Mr. Hiller installed on his Jeep: “Just found that part out…Man my shins hurt (emoticon omitted).” This web posting is probative of Mr. Hiller’s range of motion getting in and out of his lifted Jeep Rubicon and it contradicts his claim that he was in unrelenting disabling pain at that time.

Hiller v. United States, 2007 U.S. Dist. LEXIS 85536, *23-25 (N.D. Cal. Sept. 28, 2007).

The court omitted the sender’s emoticons from both quotes, yet these quotes were probative of the litigant’s “state of mind” and feelings of pain. The omitted emoticons may have changed the meaning of the text, possibly even reversing its meaning. Without seeing the emoticons in question, we’re left to wonder how the emoticons might have modified or negated the probative value of these quotes.

As a result, opinions should not edit out emoji evidence or try to characterize it textually. Instead, the emoji evidence should speak for itself. See Henry & Harrow, supra (“courts should be encouraged to include actual emojis and emoticons in their opinions when possible… it will soon become imperative to show the characters themselves so that the reader can understand the information conveyed by the emoji”). In the case of Unicode-defined emojis, where the sender and recipient may have seen different versions, opinions should display both versions.

However, as with other audio-visual content, it will be difficult or impossible to display animated emojis without some textual characterization. Cf. State v. Jacques, 332 Wis. 2d 804 (Wis. Ct. App. 2011) (a defendant unsuccessfully argued that printouts stripped out animations that would have supported his defense).

UPDATE: James Grimmelmann sent the following comment: “Shouldn’t judicial opinions state the Unicode code points for any emoji they display? (Explicitly or by publishing in a file format that retains this information even after glyph selection.) That seems to be the ideal of unambiguity. Realistic? No. But the goal to aspire to? Yes.”

Emojis are back in the news due to the Wall Street Journal article “Lawyers Faced With Emojis and Emoticons Are All ¯\_(ツ)_/¯” featuring some of my work.