Court Explains How Smileys Are “Prone to Multiple Interpretations”–In re State

This case involves a real estate dispute that’s been in the courts for almost 30 years. (Any case tied up in the courts that long is bound to have lots of drama associated with it and usually has gone well past the point of economic rationality). An associate worked for the defense firm, billing 1 hour to the case. That associate then left the defense firm and later got hired by the plaintiff firm. A lawyer at the defense firm texted the associate:

The image quality isn’t ideal, but the emoji at the end is a smiley.

The defense firm sought to disqualify the plaintiff firm because of the imputed conflicts from the newly hired associate. The judge denied the disqualification order. The appellate court affirms.

The defense firm argued that the above text exchange warned the associate about the potential disqualification. The appellate court sees it differently:

Slavin’s alleged “warning” about disqualification was followed by a smiley-face emoji, which is prone to multiple interpretations. [cites to Microstrategy v. Bus. Objects; U.S. v. Christensen; Apatoff v. Munich Re; Dean v. REM Staffing; Arnold v. Reliant Bank; In re Oladiran]…It is possible that the emoji was indeed intended to soften the blow of Slavin’s warning about the disqualifying consequence of working for Kelly Hart. But in context, the trial court could have conceived at least three other reasonable interpretations:

  • I could disqualify Warren, but I won’t;
  • I intend to disqualify Warren and it makes me happy; or
  • Gotcha.

The appellate court doesn’t pick among these interpretations. It merely needed to find that the lower court’s decision wasn’t clearly wrong, which the range of plausible smiley meanings demonstrates.

In my talk about emojis and the law, I make the point that smileys are indeed capable of multiple interpretations–indeed, the same smiley symbol might be used by the same sender for multiple meanings in the same post. I also point out that smileys always have the capacity to indicate that the associated text was sarcastic, in which case the smiley can flip the text’s meaning. That makes a simple smiley an indispensable part of every conversation where it appears, because it might be reversing the meaning of the text around it. That’s another reason why I hate it when courts don’t display the emojis in their opinions, because the emojis might be adding a lot of meaning to the conversation. Fortunately, this court showed us what it saw.

For more on the meanings courts have ascribed to emojis, see Leslie Y. Garfield Tenzer & Ashley Cangro, An Emoji Legal Dictionary.

Case citation: In re State, 2022 Tex. App. LEXIS 3119 (Tex. Ct. App. May 9, 2022)