Communication through emoji and emoticons has become more commonplace in today's world of electronic communication. There is research that indicates that approximately 88% of teens aged 13 to 17 have access to cell phones or smart phones, and that 90% of teens use these phones to send text messages. In addition, there are large numbers of teens using social media to post thoughts and ideas that often include emoji and emoticons. With this common use of these simple images, their interpretation is becoming a question in criminal cases.
One such illustration is a case of a 12-year-old in Virginia charged with threatening her school after she used emoji showing a gun, a knife, and a bomb on Instagram. These images were viewed as a threat and reported to the police, and the girl was ultimately charged with a criminal offense. In New York, a grand jury declined to indict a teen for terrorist threats to law enforcement for using emoji to illustrate his dislike for police officers.
The question of the interpretation of Internet posts as threats has been decided by the United States Supreme Court with regard to the application of a federal law banning threatening speech. In that case, Elonis v. United States, the Supreme Court held that in order to be convicted of making a threat under the federal statute, the person making the threat has to have intended his or her words as threatening, or have known that they would be taken as threatening.
This definition does not make clear what would constitute a threat, at least under the federal law, when it comes to emoji and other illustration-based forms of communication. Under New York law, a person can be charged with harassment or aggravated harassment if he or she initiates communication, including by telephone, intending to harass a person. While there are many ways the prosecution may seek to show a person's intent, it may be more difficult if the accused is using communication that does not include words, or is mainly pictorial in nature.
The First Amendment
The First Amendment does play a role in questions of speech and what can be criminalized. There are limitations, however, and a person cannot rely solely on the First Amendment to protect speech that is threatening or harassing to another person. In most cases, a person's First Amendment rights are weighed against the criminalization of speech to determine whether the greater good should outweigh a person's right to say something. Ultimately, the First Amendment does cover imagery, and therefore may apply to a person's use of emoji.
Contact an Experienced Criminal Defense Attorney
If you have been arrested and are facing criminal charges, you need an experienced criminal defense attorney who can help you fight the charges against you. A conviction can carry lifelong consequences. Contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation.