Mixed Messages: Courts Grapple With Emoticons And Emoji

Emoticons—such as :-)—and emoji—such as —are ubiquitous in online and mobile communications; according to one study, 74 percent of Americans use emoticons, emoji and similar images on a regular basis.

Given their popularity, it comes as no surprise that courts are increasingly being called upon to evaluate the meaning of emoticons and emoji that are included in material entered into evidence, an exercise that has highlighted just how subjective—and fact-specific—interpretations of these symbols can be.

For example, in a opinion last year dismissing a male law school student's suit against local police and a female classmate for having the male student formally investigated based, at least in part, on text messages that he had sent, a federal district court in Michigan held that the male student's text messages showed that he may have had an intent to harass the female classmate despite "the inclusion of the emoticon, a '-D,' which appears to be a wide open-mouth