Q&A About Emoji Law

I did another interview on emoji law that I thought was worth sharing here.

* * *

1. Please tell me about your childhood and young adulthood. Did you play games (ie, Atari, Nintendo) that required you to “read” icons and simple graphics? What sparked your interest in emoji? What early traumas or triumphs led you to internet law?

I don’t think anything in my childhood predicted my love for emojis. I had a typical GenX childhood. I was a latchkey kid. I watched a lot of TV.

I fell in love with the Internet in 1991 when I got my first email account. Email overcame several communications challenges. I could communicate for free (an important consideration given how expensive telephone calls were), I could broadcast my content to new audiences I could never previously have reached, my messages could travel around the globe instantly (as opposed to the time lags of postal mail), and I could engage in asynchronous conversations with people regardless of their time zone and how busy our respective schedules were. I immediately became an email enthusiast, and I anticipated that email would be an essential part of future communications.

I’ve never been an early adopter of technology, including cellphones, so my passion for emojis came much later than most. Around 2016, I spotted a legal opinion that referenced emoticons–something I hadn’t noticed before. It prompted me to attempt to all of the emoji and emoticon cases I could find. I have been maintaining that case census ever since.

2. I read somewhere that way back in the 1990s you created a “smiley dictionary” for your law class. What led you to do that? Did you have any idea back then that emoticons would explode and become a kind of language unto themselves?

I taught my first Internet Law course (then called “Cyberspace Law”) in Spring 1996 at the University of San Francisco Law School. There weren’t any commercially published casebooks for the course at the time, so Internet Law instructors created their own readers. In Fall 1995, I assembled the materials for my own reader.

I considered what materials should go into the reader. Students certainly needed to read the Internet Law cases and statutes, but those were quite few in number at the time. I felt like the students also needed to understand the unique “culture” of “netizens,” and that included how people spoke online. I found a “smiley” glossary online that had all of the basics as well as many silly and rarely-used emoticons. I included it in the reader.

3. You mentioned somewhere (Reddit??) that you decided to find a new area of law that no one else had noticed yet and specialize in it, so that you could become its leading expert. Is that true? If so, could you elaborate. When did you decide that emoji law would be a thing? Was there a case that struck you as a turning point?

Internet Law scholars routinely analyze what’s unique, special, or different about new technological developments compared to existing technologies. In the Internet context, it’s called “Internet Exceptionalism.” Based on that intellectual background, I instinctively consider legal exceptionalism for every new technology I encounter.

When I first encountered emojis in court opinions, I wondered: what’s unique, special, or different about emojis compared to other ways we communicate with each other? My first major project on emoji law, my Emojis and the Law paper, explained how emojis are both exceptional and not. That is, emojis generally don’t need exceptionalist interventions, but there are some quirks with emojis (such as cross-platform depiction diversity) where the legal system needs to recognize emoji’s uniqueness.

4. It seems like emoji law fits well with your sartorial instincts and sense of humor. There aren’t many other lawyers who cosplay their area of expertise. Can you tell me more about what it’s like to be the “emoji guy” at every legal conference? More about your on-brand outfits and headgear?

I am not known for being fashionable, so it would be uproarious if anyone found my fashion choices laudable or inspiring.

From my perspective, it would be weird for an emoji law enthusiast to not acknowledge how much fun emojis are and how many people enjoy using them. I have embraced this ethos by getting an emoji Hawaiian shirt, an emoji tie (which I don’t wear with the emoji shirt–even I have limits), emoji shoes, and emoji socks (custom-knitted for me by my co-author Prof. Rebecca Tushnet). As ridiculous as I look wearing them, they actually signal to the audience that I am the expert because I am deeply invested in the topic.

I especially love wearing the emoji shirt when I do emoji law trainings for judges. Judges are used to people appearing before them wearing their most professional attire. When I show up with my emoji shirt, they instantly know that my talk is going to be different–and maybe even fun.

5. What is the most dangerous emoji to use, legally speaking? 🔪 👠💊 🍆 or something totally unexpected?

Every emoji can be associated with illegality. For example, one court concluded that the “water” emoji (really, the sweat droplets emoji) was slang for meta-amphetamines, which contributed to sending people to jail. Another example is the “crown” emoji, which pimps use in the sex trafficking community to declare themselves king. If you aren’t in these communities, you might not have any idea of the criminal meanings.

From my perspective, the most “dangerous” emojis have the highest likelihood of being misunderstood. In 2022, Adobe released a report saying that “🤠(#1), 🍒(#2), 🙃(#3) are the most misunderstood emoji.” Use those emojis advisedly! Other emojis that are notoriously subject to misunderstandings are the astonished face and dizzy face emojis. Also, in 2016, some academics showed how the “Grinning Face with Smiling Eyes” meant “blissfully happy” in one iteration of Apple’s depictions and “ready to fight” in an earlier iteration. Those disparate meanings could lead to misunderstandings and even violence.

Finally, I note the “thumbs-up” emoji. In some cultures, it is offensive (it has the same meaning as the middle finger), and some courts have suggested it could be an affirmation of contractual consent when a party allegedly used the emoji simply to acknowledge the other side’s message.

6. I’m fascinated by the rise of emojis as a kind of universal language (with its own local dialects). Could you riff about that?

I feel like emojis are analogous to hand gestures, which develop regional slang. The thumbs-up is an affirmation in Western countries and an insult in others. The OK sign is another affirmation symbol in some countries that has derogatory meanings in other countries (and has become a possible hate sign in the US). The fact that emojis develop local slang meanings is not surprising.

7. What’s next for emoji law? Is there a big case coming up? Something else weird or unexpected? Will emojis factor into the 2024 election somehow?

Platforms keep proliferating new types of “-oji” symbols, such as animated and personalized emojis. We haven’t seen too many cases involving them yet, but courts are surely going to be baffled by them when they do.

Like all other areas of the law, emojis show up in political matters. For example, the “shushing” emoji got some attention recently when it showed up in some evidence supporting allegations that Trump (directly or through proxies) destroyed evidence. The emoji may support the inference that there was a deliberate effort to hide or cover up evidence destruction.

8. What’s next for you? Working on any big cases? Exploring a new facet of the law? Is there some particular emoji or lawsuit that is obsessing you right now?

As I have done for several years, I maintain my census of new US cases involving emojis and emoticons. I blog new interesting cases as they emerge. There are 200+ cases a year referencing emojis or emoticons, but only a small fraction of those actually analyze the meaning of the symbols. I give talks about emoji law regularly, including judicial trainings. Some day I hope to write a book about emoji law. Every year brings more opinions that will be great for the book.