Two Examples of How Courts Interpret Emojis
As I’ve noted before, we haven’t gotten a U.S. court opinion thoroughly interpreting emojis. The most incisive emoji law opinion to date remains the Israeli small claims court opinion that includes the baffling chipmunk emoji. Nevertheless, some court opinions do more than simply recite the emoji as part of the evidence. The post rounds up two examples of what I’m seeing.
People v. Jamerson, 2019 Cal. App. Unpub. LEXIS 940 (Cal. App. Ct. Feb. 6, 2019)
This is a sex trafficking case. The defendant is alleged to be a pimp. The case recites this evidence:
Searching Megan C.’s Samsung cell phone, the police found an Instagram conversation from April 29, 2017, with someone named “Drissy_Boo” or “Drissy_Bo,” as well as text conversations with someone named “Drissy.” The Instagram conversation began with Drissy_Bo asking, “ ‘Where are you at?’ ” The response was “ ‘[i]n the valley,’ ” and Drissy_Bo replied, “ ‘Trying to come get you ma.’ ” He asked, “ ‘Where yo nigga at?’ ” and she responded, “ ‘I don’t have a nigga . . . then come to the valley, then.’ ” He asks, “ ‘How old is you? Is you ready to be down?’ ” Miller, who also testified as an expert in the areas of pimping, pandering and prostitution, testified that the second question was “getting more specific to human trafficking,” which became more clear when Megan C. asked, “ ‘down for what?’ ” and Drissy_Bo replied, “ ‘down for yo crown’ with a crown emoji.” This phrase and emoji are “specific to commercial . . . sexual exploitation”: The crown signifies that the “pimp is the king,” asking “[a]re you ready to be down and support me as your king?” Another message said, “Teamwork make the dream work” (with emojis of high heels and bags of money), to which she replied, “ ‘Ain’t that the truth.’ ” Miller testified that the “teamwork” phrase was “almost like a bumper sticker for human trafficking,” so common that it had “Internet memes”; the high heels represented prostitutes wearing fancy shoes; and the money meant “wear your high heels to come make some money.”…
Many of the questions and answers appellant presents as objectionable involved Miller telling the jury that particular words or phrases were “specific to” or had a specific meaning in the world of pimping and prostitution, such as “ready to be down,” “down for yo crown,” “teamwork make the dream work,” emojis for money and high heels and “bust dates.”
Miller refers to detective Michael Miller.
People v. Smith, 2019 Cal. App. Unpub. LEXIS 1691 (Cal. App. Ct. March 12, 2019)
This is a witness intimidation case.
After T.R.’s testimony, she and Officer Rios met in the courtroom vestibule. T.R. held her cellphone. She was shaking and upset. She told Officer Rios, “Look at this. Please take me home.” Officer Rios observed a Facebook post on T.R.’s cellphone. The post, from “Sowe Beeh” (later identified as Smith), consisted of a photograph and the comment “#RteNow yah lookn [emojis representing two pairs of eyes] at the bitch [emojis of three fingers pointed down at the photograph] dat tld on the homie Baby Ticc [three emojis of a thumb and forefinger making a circle, plus four rat emojis] #T[.]W[.] [four gunshot and three gun emojis] share my post.” T.W. was T.R.’s Facebook username…
The comments on the photograph referenced the “bitch” who had told on Washington. The comments contained emojis of rodents. The later comments, following T.R.’s other name, “[T.W.],” included gunshot emojis, gun emojis, and the statement, “share my post.” The four gunshot emojis and three gun emojis were evidence Smith was seeking to encourage other viewers of his Facebook page to shoot T.R. His comments included three emojis, each representing a hand with the thumb and forefinger touching and the other fingers pointed up, representing the letter “b,” a symbol of the Bacc Street Crips. The jury could have reasonably concluded from the photograph and comments that Smith intended to communicate that T.R. was a despised female who had told on Washington, and she was therefore a “rat” or snitch whom members of the gang should kill to assure she did not testify against Washington at his trial.
The opinion does not explain which emoji is a “gunshot.” I suspect the court meant the “collision” emoji 💥, or maybe there’s a more specific Facebook emoji that’s not coming to mind.
Who Interprets Emojis? In the Smith case, the court interprets the emojis. It’s not that hard in context. “Rat” is a well-known euphemism for someone who makes “disloyal” information disclosures, and the gun emoji isn’t subtle. Evaluating the emojis in this context doesn’t require fancy judicial work. Instead, interpreting these emojis is part of a skill the court system has been refining for hundreds of years.
In the Jamerson case, the court recites testimony from an expert in sex trafficking. This helps because the expert claims that the emojis have specific and non-intuitive meanings in the sex trafficking context that would not be clear to lay observers. Emojis develop community-specific dialects, so it makes sense for an expert from the community to explain those meanings. Having seen this interpretation, I’m less likely to use the crown emoji!
Note this doesn’t leave much of a role for linguist experts based on their general expertise in emoji linguistics. In Jamerson, the court doesn’t need to know about the possible alternative meanings of the crown emoji; the court needs to know what the crown emoji means in the context of this thread between a putative pimp and a putative sex trafficking victim. For this type of inquiry, a community expert helps more than a linguistic expert.
Which Emojis? Neither court opinion displays the actual emojis at issue. Instead, both courts characterize the emojis textually. This is very, very common. Opinions rarely include the actual emoji symbols, and I don’t have a good way of finding the opinions that do depict the symbols because they may be invisible to my search keywords. But the textual characterizations are hardly satisfying. I already indicated that I’m not sure which emoji is the “gunshot,” and it should make a big difference if the “gun” emoji were the water-gun depiction rather than a more realistic pistol. As for the rat, it might make a difference if it were actually the mouse emoji instead of the rat emoji. Unfortunately, we have to accept the court’s characterizations, because that’s all we get. Judges can and should do better.
That’s It? As you can see, the actual court analysis of the emojis’ meanings is exceedingly slim. This is why I say that I keep waiting for a more substantive case. Most predecessor emoji and emoticon cases are similarly brief. For example, in Ghanam v. Does, this is what the court says about emoticons:
The third allegedly defamatory statement was posted by hatersrlosers in this thread and stated:
“They are only getting more garbage trucks because Gus needs more tires to sell to get more money for his pockets :P”
This statement on its face cannot be taken seriously as asserting a fact. The use of the “:P” emoticon makes it patently clear that the commenter was making a joke. As noted earlier, a “:P” emoticon is used to represent a face with its tongue sticking out to denote a joke or sarcasm. Thus, a reasonable reader could not view the statement as defamatory.
In U.S. v. Christensen, this is the court’s entire discussion about emoticons:
Christensen claims Neuhardt violated attorney-client privilege and the Sixth Amendment by offering, in an e-mail to the prosecutor accompanied by an emoticon, to “stipulate that my client is guilty.:)” No one took Neuhardt’s frivolous e-mail as an actual stipulation. Neither element of the Strickland test is met. This claim is denied.
I’m sure we’ll get a good US battle royale over emoji interpretation eventually. It hasn’t come yet.
For more on emoji law, check out my roundup post, Everything You Wanted to Know About Emojis and the Law.