Should Emoji Hold Up in Court?

A smiling pile of poop. A rainbow. A cat with hearts for eyes.

Do these belong in the courtroom?

Because they’ve been showing up there lately. Two months ago, 17-year-old Osiris Aristy was arrested for making a threat against the New York Police Department. His threat included a police officer emoji – a tiny cartoon symbol you can text someone; in this case, a man wearing a police cap – and three gun emoji. The Brooklyn resident posted them to his Facebook profile.

Of course, that wasn’t his entire message. Aristy also wrote “[Black man] run up on me, he gunna get blown down,” and, hours earlier, a photo of a gun with “feel like katxhin a body right now.” That was enough to get him charged with making a terroristic threat.

Aristy’s charges were dropped last month, but it’s pretty significant that he was charged at all. He’s not the first, either. Emoji have been used as evidence in a handful of recent court cases, raising the question, is it ethical to use these tiny, seemingly harmless cartoons as evidence? Especially since their meaning can be so murky?

Basically, do emoji count?

To answer that, let’s take a look at their prevalence, usage, and meaning.

First, emoji are definitely part of language. Currently, statistics about how many emoji have been texted are not available; however, on Twitter, people use them more often than hyphens, the number 5, or capital V. A dizzying real-time emoji tracker reports that the most popular emoji on Twitter, a face crying tears of joy, has been used more than 626 million times. Since there are some 720 emoji, total use on Twitter alone is probably in the hundreds of billions.

If their popularity alone isn’t proof enough that they’ve become part of the lexicon, well, ask officials at the Library of Congress and the Oxford English Dictionary. The former accepted a copy of Moby Dick made up completely of emoji in 2013. Two years earlier, the heart symbol became part of the Oxford English Dictionary, meaning “to heart” or “to love.” You can try to brush emoji off as fringe teen slang – their main home is on an iPhone screen, after all – but they’re increasingly becoming mainstream. Legal experts even say emoji are covered under our First Amendment right to freedom of speech.

So whether we like it or not, a cartoon pizza slice now counts as language.

Make no mistake, emoji are open to interpretation. For instance, using a winky face can be flirtatious, or at the end of a text that reads “I hate you,” express someone is joking. Some think the emoji of praying hands is actually a high five. You have to consider the relationship between the sender and the receiver, the context of the message, and typical use of the emoji itself. (A gun is less ambiguous than a wink.) Thanks to irony, sarcasm, and plain ol’ variations in usage, language is no straightforward thing.

So yes, it would be ridiculous to base an entire court case on emoji. As Wired writer Julia Greenberg writes, “None of these cases [that mentioned emoji] relied solely on the emoji, of course. Evidence, arrests, and prosecutions are far more complicated than that.”

But sometime soon, courts will have to answer Eli Hager, who asks on the criminal justice news site The Marshall Project, “[Are] emoji significant and unambiguous enough to be presented to the jury the same way the words are? Are some emoji significant, but others, not?” The gun emoji, for instance, seems especially incriminating and straightforward.

In the case of 22-year-old Christopher Levi Jackson, however, using the gun emoji a whopping 27 times wasn’t enough to get him charged with murder. A few hours after someone shot and killed 25-year-old Travis Mitchell, Jackson texted Mitchell’s sister, “It’s a chess game. I’m up two moves a head … try again. Bang bang, bang,” followed by 27 gun emoji. Detectives on the case believed that Jackson’s text meant Mitchell wasn’t the intended victim, and Mitchell planned to kill whoever was. Police arrested Mitchell for first-degree murder, but without further evidence, they had to release him.

And that’s how it should be. As D.C. attorney John Elwood told Buzzfeed, “Words that could be construed as threatening are enough to make an arrest, but they shouldn’t be enough to convict someone.” Emoji should be examined with as much context as possible, in light of the sender’s criminal record, past behavior, and other factors. Time will tell how much value juries place on them.

For now, the emoji is in its infancy; words are still our main units of language. You wouldn’t build a court case on body language, even though it’s a huge part of communication (55 percent, according to researcher Albert Mehrabian, who came up with the famous “93 percent of language is nonverbal” statistic). There isn’t a benchmark yet for emoji use in court. Lawyers can’t even agree on whether emoji should be read or shown in the courtroom.

In a recent court case, for example, the defendant’s lawyer argued that emoji should be included as evidence because they shed light on the rest of the message. The defendant’s lawyer not only asked the judge to include an emoji after a particular statement, but to show the emoji to the jury. In a letter to the judge, the lawyer argued that describing emoji aloud wasn’t sufficient because they “cannot be reliably or adequately conveyed orally.”

The bottom line is, just because you can say or text something doesn’t mean it’s free of consequences. Emoji are part of how we communicate, so they have repercussions. At the risk of sounding like an after-school special, think before you text.

After all, interpretation often matters more than intention. Do you really want to wind up in jail for threatening arson because you used 12 angry faces and 16 fire emoji? Didn’t think so. Because even if you’re  , jail is .