How using a gun emoji can get you arrested

While the use of emojis has been popularly embraced as a nuanced form of expression, new legal issues have followed the use of particular emojis that are deemed threatening.

Mary Altaffer/AP/File
Julie Zhuo, product design director at Facebook, demonstrates the new emoji-like stickers customers will be able to press in addition to the like button

Last November, when Oxford Dictionaries announced that its Word of the Year for 2015 was the "Face With Tears of Joy" emoji, not everybody was happy. In fact, the announcement triggered outrage among English majors and word nerds alike, who argued that emojis aren't words.

Emojis may not be words to purists, but particular emojis – including the gun and knife varieties – are powerful enough to get their users in trouble, as happened to one middle schooler.

In response to being bullied in school, a 12-year-old girl from Fairfax, Va., posted a message on Instagram last December, laden with gun, bomb, and knife emojis. As a result, she was arrested and charged with computer harassment and threatening her school. It was the latest incident among many, in which police say they are having trouble distinguishing if threats are real, The Washington Post reported.

Although the Fairfax County Schools ultimately concluded the threat was not credible, the girl was still scheduled to make her first appearance in juvenile court on the charges. The outcome of the case is unclear however, since the hearings are not open to the public.

While emojis have been popularly embraced as a nuanced form of expression, and for many users have become a shorthand form of communicating thoughts, emotions, and responses, a raft of new legal issues have followed, with police increasingly having difficulties figuring out whether online ramblings equate to real threats.

In December 2014, Anthony Elonis was convicted and sentenced to 44 months in jail for violating the federal threats statute, after he posted multiple Facebook statuses threatening to kill his estranged wife who had left him and taken their children.

As the International Business Times reported, the court found that a reasonable listener would determine that the posts were a real threat, but the Supreme Court overturned his conviction in June 2015, setting a precedent by ruling that a person's criminal liability cannot be judged without looking at their mental state.

In another case, Osiris Aristy, a teenager from Brooklyn, New York, was arrested in January 2015, for posting several Facebook statuses featuring gun emojis pointing at an emoji of the police, alongside text. One post in particular read: "N***a run up on me, he gunna get blown down." The charges were dropped after a grand jury failed to indict.

“I think something is definitely lost in translation,” Aristy attorney Fred Pratt said of police efforts to interpret teens’ emoji use, according to the Post. “These kids are not threatening cops, they are just trying to say, ‘I’m tough.’ It’s posturing.”

While police are trying to judge just how seriously to take threatening messages using emojis, experts admit that there is a challenge determining what a defendant actually intended by sending a particular emoji.

Dalia Topelson Ritvo, assistant director of the Cyberlaw clinic at Harvard Law School told The Washington Post that “the girl’s message sounds threatening, but prosecutors and the judge will have to sort out whether the bomb, gun, and knife emoji indicated a desire to threaten the school, simply anger, or something else entirely.”

“You understand words in a particular way,” she said. “It’s challenging with symbols and images to unravel that.”

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