On various social media platforms, we can express various emotions with emojis. Sad face means sad. Frowning means anger, dislike, etc. But, some emojis are less clear. What does a fire emoji mean? What does a winking face mean? Those emojis have slowly been creeping into caselaw. In 2004, an emoji was part of a lawsuit filed in the Eastern District if Virginia. In 2016, there were at least 26 cases involving emojis referenced in court opinions. In 2023, there were more than 200 such opinions.

Eric Goldman of Santa Clara University School of Law researches court opinions involving emojis and emoticons. The 2023 case referred to a wide range of emojis, including heart eyes, pigs, skulls, and devils. Entire conversations across Snapchat can involve nothing more than emojis. Context is everything, says Mr. Goldman. One dispute involved Bed Bath and Beyond investor Ryan Cohen. In 2022, Mr. Cohen posted a tweet responding to a CNBC story that predicted the company’s share would drop. Cohen re-posted the story with a photo of a woman smiling – with the comment “At least her cart is full” and an emoji of a smiling moon. Other investors said they interpreted the emoji as a sign that the Mr. Cohen believed Bed Bath & Beyond stock would rise to the moon. They saw that post as advice that investors should buy or hold onto their investments, according to court pleadings.

Fraud

In 2023, Judge Trevor McFadden, sitting for the U.S. District of Columbia district court, found that Mr. Cohen and his venture capital firm would have to face plaintiff’s’ claims based on fraud. The plaintiffs claimed the smiley moon emoji was a fraudulent misrepresentation. Judge McFadden wrote that the smiling moon was “plausibly misleading.” The judge was probably addressing a motion to dismiss.

In a separate suit, Judge Ho in the Southern District of New York found that two shareholders could not force Mr. Cohen to return profits from selling his shares on Bed Bath and Beyond. Judge Ho found that the shareholders’ claims were moot due the bankruptcy of the company.

One issue is that interpreting emojis can be generational, says Prof. Leslie Y. Garfield Tenzer of the Elisabeth Haub School Law at Pace University and author of the Emoji Legal Dictionary. That dictionary is posted on the website of her law school. Prof. Tenzer points out that an eggplant emoji is just a vegetable to an older person. While, a younger person would see a symbol for a penis.

The other issue is how to address the emoji issue. Some judges would see the use of emojis as a fact issue, best decided by a jury. While other judges view the use of emojis as a question of evidence which require a ruling by the judge.

See Dec/Jan, 2024-25, Vol. 110, No. 6 edition of the ABA Bar Journal for more information.