In July 2022, the world watched with bated breath as Twitter sued Elon Musk. No one knew if the deal would happen or if everything was a perfect elf elf to begin with. (The two weren’t separate either.) Billions of dollars and the fate of a major global social media network hang in the balance. The suit was, in some ways, unprecedented. Legal experts found themselves beset with all kinds of tough questions.
For example, was this the first time the poop emoji appeared in court?
The answer is no. In 2018, the Seventh Circuit Court of Appeals issued an opinion on Emerson v. Dart In it, corrections officer Paula Emerson sued the county alleging workplace discrimination. While waiting for the suit, Emerson made some very unwise posts in the employees’ Facebook group. She was sanctioned by the lower court, and upon appeal, the Seventh Circuit decided to excerpt the Facebook post:
Correspondence with me will get your verified email. So glad this employer confession was so convinced of his own 💩
poop in emoji Emerson v. Dart It is only the tip of the brown iceberg. The legal system is built on endless stacks of paperwork – people sue, people add exhibits to their lawsuits, they get responses, the responses have attachments, and then sometimes a judge makes a ruling. The fact that the stool emoji appeared in the Seventh Circuit means that the stool emoji has been referenced countless times before — in filings made by parties, perhaps in a lower court decision, and in summaries written during the appeals process. king Emerson v. Dart He went to trial, no doubt the lawyers would have squabbled over how to read the “stool emoji” aloud in court to a jury. All of this to say — the poo emoji certainly showed up in court, long before Twitter’s lawyer shot Musk’s tweet about the poo emoji as evidence of his public disrespect for the company.
However, it’s not like the legal system is lousy with poop emojis. “It’s not in the top ten (emojis), I can say that with some confidence,” said Eric Goldman, a professor of law at Santa Clara University who has published scholarly work on emojis in law.
The messy emoji definitely made an appearance in court, long before Twitter lawyers even recorded Musk’s tweet
Jennifer Behrens, a law librarian who teaches at Duke University and is also a researcher on this topic, says that Emerson v. Dart It’s the only judicial opinion I’ve found with a poop emoji — but again, that doesn’t mean it hasn’t appeared in court in other forms. “Basic smiley faces were most common, along with ‘tears of joy,’” she told me in an email.
Emoji often have ambiguous meanings, ranging from the literal to the metaphorical to the sarcastic. The poop emoji is a little more on the direct side, but there are many different ways to interpret it, depending on the context. In its lawsuit in Delaware, Twitter cited Musk’s emoji as a case in which he violated the non-derogation clause of the purchase agreement.
Posted on its own, the poo emoji is at its most mysterious. “It’s not unusual for Musk because he likes to stir the pot and let everyone try to figure out his intentions,” Goldman said.
Was Twitter’s “nonsense” tweet a statement made by the then CEO of Twitter disparagingly? Is it better than the worst explanation (Twitter is shit)? Why did Elon Musk tweet that? All these questions are unknown and will remain forever. Delaware’s lawsuit to force Musk to buy Twitter was dismissed after he bought the company. (Several months later, he set press@twitter.com—the official channel through which journalists solicit comment—on Auto answer with “💩.”)
Related scams aside, all of this points to a growing problem with the law. In the judicial system, ambiguities are often resolved by the judge. And if a judge wanted to dig into past cases that reference the poop emoji, they would strain themselves to no avail.
If a judge wanted to dig into past cases that reference poop emojis, they would strain themselves to no avail
Behrens found that databases struggled with displaying emoji: some would delete them entirely or write them as an error. Even worse, these databases don’t index searches for emoji, which means you can’t just drop a 💩 into the search box and see what happens. It is simply not possible for Behrens and Goldman to accurately say how many times the emoji (or other emojis) have appeared in court. (Goldman found seven cases in its dataset that referenced poop emojis in some form, including the federal case v. Michael Avenatti.)
Byrnes, in particular, pointed this out Emerson v. Dart An opinion that includes an emoji while never using the word “emoji” in the rest of the opinion. Close observers like Goldman and Behrens know Emerson A case by name and you could easily provide me with it as an example of a poop emoji in court, but if I tried to search for the phrase “poop emoji” in a legal database, I might not have found the case.
Yes, this problem seems pretty simple, but keep in mind that databases also suffer from diacritics or mathematical and scientific symbols for the same reasons I can’t bring it up to them. And even something as silly as displaying an emoji can have serious repercussions. Legal issues work over how someone understands a sentence, and one emoji (or lack thereof) can drastically change that. Byrnes indicates that the person reading the Emerson The case would come with a completely different interpretation depending on what legal database they used to find it. Two services display the offending sentence as “This employer’s arrogance makes them believe in themselves?Two others introduced it as “The arrogance of this employer makes them believe in themselves “.
Legal issues run into how a person understands a sentence, and one emoji can drastically change that
Common law systems – such as those in the United States – are built on precedent after precedent, with some legal principles imported from England long before the American Revolution. Relying on precedent predates the databases and search indexes that currently dominate the legal profession. Law formerly involved encyclopedic knowledge and access to an expensive collection of very heavy books. But because of the limitations of paperback publications, full judicial opinions were not always published in these books. Unknown and unsearchable antecedents were lurking around the corner, ready to ambush Clouds.
In a way, legal, non-Unicode-compliant databases are a return to form. Technology takes two steps forward and then one step back. The vast, sprawling world of law, seemingly exposed by search engine technology, collapses once more into a dark haze, made possible by the humble emoji.
But it’s not just tools that need to catch up, according to Goldman. Lawyers and judges may not necessarily understand emoji — for example, what Unicode is or that eggplant is sexual — and it’s important to educate them before it negatively affects a case.
“I’ve done a number of judicial trainings for the judges because they’re all face emojis in their courtroom,” Goldman said.
“We had a four-hour training in Pennsylvania on emojis only,” he said. “That was an exaggeration in my opinion.”