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85 Tenn. L. Rev. 517 (2017-2018)
The Emoji Factor: Humanizing the Emerging Law of Digital Speech

handle is hein.journals/tenn85 and id is 529 raw text is: THE EMOJI FACTOR: HUMANIZING THE EMERGING LAW OF DIGITAL SPEECH ELIZABETH KIRLEY & MARILYN MCMAHON INTRODUCTION. ....................................... ..... 518 I. CHALLENGES TO EMOJI TRANSLATION ........ .......... 521 A. Humble Beginnings: From Emoticons to Emoji........... 521 B. The Development of Emoji as Digital Speech...............527 C. Technical Issues that Alter Perception ...... ......531 D. Contextual Factors that Alter Meaning ..... ......534 1. Emoji Choice.............................534 2. Placement in Relation to Text and Other Emoji ...538 3. Purpose of the Communication as a Whole............540 4. Individual Factors and Cultural Cues....................543 II. CASE STUDIES ANALYSIS .................... .........548 A. Criminal Law..........................549 B. Contract Law ............................... 556 C. Tort Law.. ...................................557 III A LEGAL RESPONSE TO DIGITAL SPEECH .......................559 A. Constitutional Protections and Low Speech Theory.. 559 B. A Discrete Legal Space... ..................... 566 CONCLUSION .............................................568 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

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