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The Emoji Factor: Humanizing the Emerging Law of Digital Speech


Elizabeth A Kirley

Deakin University School of Law



Marilyn M McMahon

Deakin University, Geelong, Australia – Deakin Law School

The Emoji Factor: Humanizing the Emerging Law of Digital Speech


Emoji are widely perceived as a whimsical, humorous or affectionate adjunct 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 behaviour 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 non-verbal 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.

OH SCT Justice Shares Sexual Exploits on Facebook


OH SCT Justice Shares Sexual Exploits on Facebook

For some reason, Ohio Supreme Court Justice and gubernatorial candidate Bill O’Neil felt the need to discuss his sex life on Facebook.

ABAJournal.com: Ohio high court justice apologizes for boastful Facebook post defending ‘heterosexual males’


Senate Discusses Judge’s Tweeting History


Senate Discusses Judge’s Tweeting History

As the article below explains, the U.S. Senate, during a recent confirmation hearing, inquired quite extensively into the tweeting habits of Texas Supreme Court Justice Don Willett who is a well known user of Twitter. Justice Willett is being considered for an appointment to the U.S. Fifth Circuit Court of Appeals.

Legaltechnews.com: Willett’s Tweets Become Focus Of Senate Hearing

SESTA and the Tech Companies

SESTA and the Tech Companies

As discussed in the article below, it looks like that some tech companies are no longer in opposition to the the Stop Enabling Sex Trafficking Act (SESTA) which is currently making its way through the Senate. According to the article,

SESTA is designed to make it easier for prosecutors to target websites like Backpage that host ads or otherwise enable sex work. While Backpage was ultimately taken down in a prosecution led by then-California Attorney General Kamala Harris (now a senator), the site’s owners escaped criminal trafficking charges thanks to the protections of Section 230, which prevents sites from being prosecuted for crimes committed by their users. SESTA would change that, explicitly stripping 230’s protections from any platform found to be assisting a sex trafficking enterprise.

While it is not certain whether this bill will become law, the fact that some of the major players in Silicon Valley are no longer against it dramatically increases the odds that this bill will get out of committee and on the Senate floor for a vote.

Theverge.com: Tech companies are cheering on a bill that guts internet protections

The Honest Ads Act Won’t End Social Media Disinformation, but It’s a Start


Ellen Goodman


Lyndsey Wajert


The Honest Ads Act Won’t End Social Media Disinformation, but It’s a Start


The Honest Ads Act, introduced in the Senate in October 2017, would hold social media and other online platforms to the same political advertising transparency requirements that bind cable and broadcast systems. No longer would these platforms be able to deny that they know they are distributing foreign and other covert political ads (as part of a disinformation campaign), and no longer would the public be blind to advertiser identity. Above a certain threshold, the buyers of these ads would be exposed. However, paid political advertising is a relatively small part of the disinformation that infected the public sphere during the U.S. 2016 federal election. The Honest Ads Act will not reach organic social media posts, troll farms or — most fundamentally — the logic of social media sites which rewards outrage and bias confirmation. Moreover, it would not reach paid ads that are not considered “political”, and there is a risk that an overly broad definition would raise First Amendment problems. Even given these limits and caveats, even relatively weak disclosure regulations have proven to foster a culture of greater transparency in commercial advertising. They could do the same with online political advertising, without compromising free speech values. Normalizing social media to the standards of traditional media transparency is a reasonable place to start.