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Tennessee Law Review

Document Type

Article

Abstract

Emoji are widely perceived as whimsical, humorous or affectionate adjuncts to online communications. We are discovering, however, that they are much more: they hold a complex socio-cultural history and perform a role in social media analogous to non-verbal behavior in offline speech. This paper suggests emoji are the seminal workings of a nuanced, rebus-type language, one serving to inject emotion, creativity, ambiguity-in other words, "humanity "-into computer-mediated communications. That perspective challenges doctrinal and procedural requirements of our legal systems, particularly as they relate to such requisites for establishing guilt or fault as intent, foreseeability, consensus, and liability when things go awry. This paper asks: are we prepared as a society to expand constitutional protections to the casual, unmediated, "low-value" speech of emoji? It identifies four interpretative challenges posed by emoji for the judiciary or other conflict-resolution specialists, characterizing them as technical, contextual, graphic, and personal. Through a qualitative review of a sampling of cases from American and European jurisdictions, we examine emoji in criminal, tort, and contract law contexts and find they are progressively recognized, not as joke or ornament, but as the first step in nonverbal digital literacy with potential evidentiary legitimacy to humanize and give contour to interpersonal communications. The paper proposes a separate space in which to shape law reform using low speech theory to identify how we envision their legal status and constitutional protection.

Publication Date

2018

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