They might be confusing, they're sometimes irritating, and depending on how this case turns out, they might also be threatening. Osiris Aristy, 17, of Brooklyn, was arrested on Sunday after he threatened police with ... with what?? A knife? A gun?
Nope: Emojis. In a Facebook post on December 12, Aristy posted photos of himself captioned with gun emojis pointed at a police officer emoji. For that, the juvenile was charged with making terrorist threats, as well as marijuana and weapons possession, Gothamist reports.
Can You Threaten Someone With Emojis?
It's a crime to threaten someone, whether or not you actually intend to carry out the threat. In Aristy's case, his lawyer told DNAinfo he "never threatened to take action against police." But that's not really a defense; the crime of making a threat is complete when the threat is made and received, not when the threat is carried out, and even if it's never intended to be carried out. The crime is placing another person in fear.
Making a terrorist threat is a heightened version of making a criminal threat. New York Penal Law Section 490.20 defines a terrorist threat as one made "to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government." It appears, then, that making a terrorist threat requires not just an intent to threaten, but also an intent to influence public policy.
That last part might be a problem for prosecutors. It's not clear from news reports -- at least not beyond a reasonable doubt -- that Aristy's emojis, even if they were threatening, were intended to influence public policy. Prosecutors, however, often charge the most punitive crime they have probable cause for, not the crime they think a jury will convict for.
Objective or Subjective Threats
While it might seem strange for emojis to be considered threatening, threats aren't evaluated in isolation. As California courts have said before, "Threats are judged in their context." As a result, an emoji could potentially be threatening, depending on the emojis used and the surrounding words and images.
Aristy's case could also be influenced by the outcome of U.S. v. Elonis, a U.S. Supreme Court case dealing with Facebook threats. That case deals with a federal law, but the key issue is whether threats have to be objectively threatening (meaning a reasonable person would find them threatening) or subjectively threatening (meaning the person doing the threatening had to intend for the statements to be threats).
Depending on how that case comes out, Aristy could try to argue that he didn't intend for his emojis to be threatening, although the Supreme Court will probably decide that statements have to be both subjectively and objectively threatening.
Until then, stick to smiley faces.