Emoticons have become an inescapable part of our communication. I resisted using them for a long time (I am that person who still spells out full words when writing a text), but it is too tempting to lean on emoticons and emoji to clarify tone in a medium where it can be easily misinterpreted. The ubiquity of emoticons now means that courts are being asked to interpret them in the context of cases, and Amanda Hess has a fascinating piece at Slate about how that is playing out. Unsurprisingly, a number of the examples Hess cites involve men trying to excuse their threatening and violent behavior toward women by citing emoticons:
Last spring, a U.S. District Court judge in Michigan was asked to rule on the meaning of “:-P.” The case concerned a University of Michigan law student who was investigated by local cops after a female classmate reported that he had been stalking and harassing her online. When prosecutors declined to press charges, the student sued the woman, his school, and the cops, claiming that the investigation had been launched without cause and executed unlawfully. In his defense, the student argued that several text messages he’d sent to a friend—in which he called himself a “petty bastard” who wanted to make his classmate “feel crappy” and experience “deep dark pits of depression”—should never have been taken seriously by police because he’d thrown a couple of wry emoticons in, including one indicating a stuck-out tongue. A proper understanding of the symbol, the man argued, would have led a reasonable officer to understand that he was not “sadistically bloodthirsty for revenge” against the woman, but rather just “deeply unhappy” about the status of their friendship. The judge disagreed, writing that the emoticon “does not materially alter the meaning of the text message.”
A major challenge is that there is no standard way to understand how emoticons are employed. Hess looks at their origins and the failure of studies to establish any kind of consistent interpretations.
So far, efforts to build a unified emotional context for hundreds of emojis used by millions of people around the world have failed. The Emoji Sentiment Ranking relies on a rudimentary emotional scale, and it doesn’t acknowledge that emojis are often used to soften or counter the emotion present in a written text, or are just casually appointed to a tweet like a non sequitur. In one 2013 Twitter defamation case, a British judge wrote that an emoticon is tantamount to a digital “stage direction” that instructs readers on how to imagine the writer’s facial expression as she formulated the statement. But he cautioned that even within that fairly literal interpretation of the emoji, parties could spar over whether the face had been presented as a “sincere” communication of emotion or an “ironic” prank. As Schnoebelen told me: “The Joker’s smile is not reassuring.”
It’s encouraging that in most of the examples Hess cites, judges were not persuaded by attempts to soften threatening behavior by pointing to emoticons. But given how our culture often responds to violence against women and the lack of a standard, it’s hard to imagine we won’t see some problematic interpretations. I am halfway through reading Kate Harding’s Asking For It, a thorough and engaging exploration of rape culture. It lays out clearly the disturbing pattern in our country of impugning women based on their behavior and excusing men for criminal acts. Are we likely to see a court case where a 🙂 in a text to a rapist a woman knows is presented as evidence that their relationship was friendly and not threatening? Or a man’s admission that he raped someone is dismissed because of a ;)?