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That Emoji Can and Will be Used Against You… ;)

Like an actual picture, an emoji is worth a thousand words – and a possible stint in jail if you aren’t careful. Recently, a Brooklyn teen was arrested after making the following post on social media, according to this CBS New York article.

“(Expletive) run up on me, he gunna (sic) get blown down.”

His words were followed by emoji: a head representing a police officer followed by three guns pointing at it.

Police took this threat seriously and arrested the teen on charges of making terroristic threats, aggravated harassment, and possession of a weapon and drugs.

Another recent case involving legitimacy of emoji regards the Silk Road trial. After a prosecutor read the text of an Internet post without mention of the emoji it contained – in this case a smiley face, Judge Katherine B. Forrest instructed the jury to take note of such symbols as they are, “…part of the evidence of the document,” according to The New York Times.

Now that emoji have earned their place as valid evidence, will we soon see the court needing to do a better job of clarifying how the First Amendment applies to social media? Could emoji play a role in your California divorce, custody or domestic violence hearing? It sure looks that way.

“Recoverable communication will always carry the risk of being used in a trial, whether it is a photo, emoji or social media post,” says San Diego divorce attorney John Griffith. “Although emoji and social media posts are newer territories, you can expect to see more rulings from the Supreme Court regarding their use and effect on our amendment rights.”

In fact, the Supreme Court made a ruling regarding how the First Amendment applies to social media in December 2014. In the case of Elonis v. the United States, Anthony Elonis was found guilty of threatening to injure another person after he posted explicit comments on social media under the guise of rap lyrics. You can read more about Elonis v. United States in this CNN article.

The lesson to be learned in the wake of these recent rulings citing emoji and social media post is that you need to be careful about the content your Facebook status updates, tweets and Instagram posts contain, and how it can be interpreted. Emoji may not be what convicts you solely, but when judged amongst the context of other evidence, the sad face emoji with a gun pointed at it that you sent to your ex in a text may be just what the jury needs to be convinced you are not stable enough to maintain custody of your children.

For further information about how social media posts can be used against clients in family law cases, click here.