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Emojis and Emoticons Present Challenges in Student Disciplinary Hearings and in Court

Posted by Joseph D. Lento | Mar 03, 2016 | 0 Comments

College students often find themselves in hot water because of what they post on social media or send in a text message or email.  Facebook, Instagram, Twitter, SnapChat, other social media sites, and electronic communication in general are dangerous ground.  Regretfully, social media posts, text messages, and emails often come back to haunt students.  Students can find themselves charged with school disciplinary violations for what they post or send, and they can be charged even if their social media posts or electronic communications are ambiguous, and not necessarily on their face motivated by ill-intent.

As an attorney, I often deal with allegations involving social media and electronic communications in both the school disciplinary setting and in criminal court.  Sometimes allegations may seem minor, but in light of the today's climate at colleges and universities, what arguably should be dismissed with a slap on the wrist can result in serious and unexpected disciplinary sanctions.  Recent cases, not just in the college and university setting, give perspective as to how social media posts can have serious consequences for the poster.  Although interpreting the words in social media posts does not always present a challenge for school disciplinary boards and committees, emojis and emoticons can be a more complicated affair.  Disciplinary cases involving not just social media posts in general, but also cases specifically involving emojis and emoticons will continue to increase in number as more and more communication is done via electronic means.  When an estimated 92 percent of the online population uses icons and images in electronic communication, it is not surprising that an estimated 6 billion emojis and emoticons were sent today alone.

Student disciplinary hearings at colleges and universities are not the only forum that are interpreting the intent behind emojis and emoticons; courts are also doing so more and more frequently.  For example, a student in Fairfax, Virginia, was recently charged with threatening her middle school after posting an Instagram message that included a gun, knife, and bomb emojis.  The message read in part:

Killing 🔫

“meet me in the library Tuesday”

🔫 🔪 💣

The student's case is not unique.  Recently, a New York City grand jury was asked to decide whether 👮 🔫 was a threat to police officers, a Michigan judge was asked to interpret the meaning of :P (a face with a tongue sticking out), and the United States Supreme Court last year presided over a case regarding whether Facebook posts constituted a threat.

In December, the Instagram message that included the gun, knife, and bomb emoji came to the attention of a resource officer at Sidney Lanier Middle School.  The school resource officer interviewed students and made an emergency request to obtain the IP address associated with the Instagram account in question.  Authorities thereafter determined the poster's identity which led to the subsequent criminal charges against the student.  The student's mother stated that her daughter had been bullied and her post may have been in response.  The court will now determine whether the gun, knife, and bomb emojis were intended as a threat to the school, or were something more benign, despite their violent tone.

A 17 year old is arguably more culpable than a 12 year old, so it should not come as a surprise that a 17 year old New York City juvenile was charged with making a terrorist threat after posting on Facebook three gun emojis pointed at a police officer emoji's head.  Although a grand jury later declined to indict the 17 year old, the prospect and burden of being charged is enough to make some think twice before posting online or sending an electronic message.  Regretfully, many people of all ages, continue to find themselves in similar positions because of what they post online or send in an email or text.

A Pennsylvania man, arguably old enough to know what possible consequences could result, was convicted for threatening his estranged wife via his Facebook posts.  The United States Supreme Court heard his case on appeal and was asked to interpret whether the man's violent lyrics posted on Facebook about killing his wife were actual threats.  It was argued that the Facebook posts were not actual threats, but rather, were art, therapy, and/or made in jest.  To support the argument that the Facebook posts were not actual threats, it was noted that the posts were followed by an emoticon of a face with a tongue sticking out.  The Supreme Court sided with the husband and overturned his conviction.

It is not just police, prosecutors, defense attorneys, and courts that are trying to interpret the meaning behind emojis and emoticons.  Student disciplinary boards and committees at colleges and universities in New Jersey, Pennsylvania, and nationwide find themselves trying to do the same.  Considering what is at stake when a student is charged with disciplinary violations at school, namely, the risk of jeopardizing academic and professional goals, students need to think twice before hitting "send."

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges locally and nationwide while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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