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Determining Intent in the Age of Emojis

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By Casey C. Sullivan, Esq. on June 05, 2015 11:55 AM

It can be hard to convey your intentions online. Without the context of a face to look at or voice to hear, the plain words of a text, tweet or email can easily be interpreted, and misinterpreted, in many different ways.

While the Internet has stubbornly refused to adopt context clues like the interrobang or irony punctuation, tools like emojis and emoticons can help visual express the intent behind words. But not always.

I'm Gonna Kill You :-)

That's what a Bay Area high school student found out after she went on a two to three hour Twitter spree, threatening to shoot up her school, but sprinkling her messages with smiling and laughing emojis. "L.F.," as the juvenile girl is called in court records, was arrested after a parent from her Fairfield, California, high school saw the tweets and reported them to police.

The girl's messages were a mix of threats and laughter. Her messages included tweets such as "I'm leaving school early and going to get my cousin gun now (three laughing emojis and two clapping hands emojis)" and "Ain't nobody safe ('100' emoji)," according to Fairfield's Daily Republic. When she was arrested, she claimed she had only been joking.

L.F. was charged and convicted for making felony threats and her conviction was upheld yesterday. "But wait!?" you interrobang. "Didn't the Supreme Court just rule that online threats should be determined by the intent of the speaker, not by whether they could reasonably be perceived as threats?" You are exactly right. However, L.F.'s case was different, as the trial judge found that the tweets were intended as threats, laughing emojis be damned.

A Jurisprudence for Emojis?

The case highlights the difficulties of determining intent in the emoji age, whether they're in potentially criminal threats or texts to a colleague. Emojis can make their own sort of language -- Moby Dick has been translated into them -- but that language can still be hard to decode.

Is "give me my money (skull emoji)" a death threat or joke? What about "Happy hour after work (reddress dancing woman emoji)?" A invitation to have fun or sexual harassment?

Unfortunately, L.F.'s case doesn't give the rest of us much to work with. The court found anger and intent to terrorize behind the emojis, but provided little guidance other than to go with its gut. But as electronic communications continue to develop, lawyers and courts will be increasingly pressed to develop a standard interpretation of "(phone) (mustache man) (sail boat) (whale) (okay sign)."

(That's "call me Ishmael," by the way.)

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