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The emoji factor: humanizing the emerging law of digital speech

journal contribution
posted on 2018-08-01, 00:00 authored by Marilyn McMahonMarilyn McMahon, Elizabeth Kirley
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.

History

Journal

Tennessee law review

Volume

85

Pagination

517 - 570

Publisher

Tennessee Law Review Association

Location

Knoxville, Tenn.

ISSN

0040-3288

Language

eng

Publication classification

C Journal article; C1 Refereed article in a scholarly journal

Copyright notice

2018, Tennessee Law Review Association

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