More than 70 percent of Americans use emoticons – also referred to as “emoji” – on a regular basis. In fact, there are now upward of 2,600 emoji that people may include in their communications with others.

As a result of this emoji explosion, courts across the United States are being called on more and more to interpret the meaning of emoji in admitted evidence, including text messages, emails and social media posts. According to the Wall Street Journal, emoji were mentioned in more than 30 federal and state court opinions in 2017 – an increase from 25 opinions in 2016 and 14 opinions in 2015.

For example, here are some questions that might be considered by a court:

  • What does >_< (angry face) mean in a text message between a divorcing couple?
  • In a sexual harassment suit, how should 😉 (smiley face with wink) be interpreted in an email between a supervisor and a subordinate?
  • Does a knife emoji in a social media post show threatening intent in an assault case?

Court Interpretation Of Emoji In Michigan

Michigan is one state where the courts have tackled the meaning of emoji, including one emoticon in particular – the stuck-out tongue, which often looks like this: :-P.

In 2015, Judge Robert H. Cleland of the Eastern District of Michigan was asked to rule on the meaning of 😛 in a text message. The case, Enjaian v Schlissel, involved a male student at the University of Michigan Law School who was investigated for reportedly harassing and stalking a female classmate. When no charges were filed, the student sued the classmate, the school and the police, arguing the text messages he sent should not have been taken seriously because they included sarcastic emoticons, including :-P.

But Judge Cleland disagreed with the student, finding the protruding-tongue emoji did not “materially alter the meaning of the text message,” in which the student said that he wanted to do “just enough to make [the classmate] feel crappy.”

The Michigan Court of Appeals saw things differently in Ghanam v. Does, 303 Mich App 522 (2014). In Ghanam, a defamation case, one of the statements the plaintiff claimed was defamatory was this: “the city was ‘only getting more garbage trucks because [the plaintiff] needs more tires to sell to get more money for his pockets :P.'”

According to the Court of Appeals, the stuck-out-tongue emoji at the end of the sentence could not be taken seriously because its use made it “patently clear” the plaintiff was joking. The Michigan Supreme Court denied leave to appeal in Ghanam.

What Does The Future Hold For Court Interpretation Of Emoji?

The growing use of emoji presents some interesting legal questions. For example, staunch supporters of free speech have become troubled that certain emoji are typically viewed as threatening. Meanwhile, defense lawyers argue that emoji should not be admissible at all, or only in limited circumstances.

Given the increased use of emoji in our everyday communications, it can be difficult to argue these strange (sometimes funny) little pictures do not convey the intent or feelings of the user. In fact, I admit that when I insert an emoji into a message or social media post, it usually reflects my attitude or feelings at the time … whether good or bad.

It does not appear that emoji are going away anytime soon, which is why they will continue to be analyzed by courts when they are part of admissible evidence. As a result, courts will keep facing interpretation challenges.

Why are emoji so difficult to fully understand? Because they can be ambiguous in their use and, although they often support the intent behind the communication, they can also undermine it. And while courts have only begun interpreting the meaning of emoji in recent years, they have frequently reached opposite conclusions, further muddying the emoji waters. So for now, it seems the meaning of an emoji will turn on the specific facts of a case.

In the meantime, lawyers should not disregard the importance of emoji. Attorneys need to know about, and understand, their clients’ pertinent communications that include emoji. Lawyers also need to begin grasping the subtle nuances of emoji. To help in this regard, studies are currently underway that analyze the use and meaning of emoji, and legal conferences are now offering instruction on how lawyers can determine what emoji mean and how people (clients) use them.

WIRED’s Julia Greenberg hit the nail on the head with this statement: “When the digital symbol for a gun, a smile, or a face with stuck-out tongue comes up in court, they aren’t being derided or ignored. Emoji matter.”