Emoji arrest raises questions of First Amendment protection

Part of the emoji exhibit at the Eyebeam gallery in New York City, on Dec. 14, 2013.

By Colin Daileda2015-02-07 20:41:12 UTC

When a 17-year-old from New York City was arrested and charged last month with making terrorist threats, the primary focus of the charge was two emoji.

Osiris Aristy posted several Facebook statuses last month that may not have explicitly threatened police, but included gun emoji pointing at emoji of police officers, which the New York City Police Department interpreted as a threat. While the terrorism charge was dropped, the case has raised questions over whether text and emoji receive equal protection under the U.S. First Amendment.

Aristy's lawyer said the NYPD overreacted; some would agree, but there is no definitive answer yet.

Although the law is murky when it comes to emoji, two things are clear, according to legal experts: First, symbols are as protected by the First Amendment as text, which theoretically means emoji are covered. Second, the terrorism charge would hinge on whether or not Aristy had made a "true threat."

A "true threat" is difficult to define. It requires knowing the intent of the message, and determining whether someone who heard or saw the message would feel threatened. But interpretations of emoji can vary.

It really comes down to whats surrounding the matter," Bradley Shear, a lawyer who focuses on social media law, told Mashable. "When someone sends an emoji, it can mean a whole bunch of different things.

On one hand, Aristy posted his emoji-littered statuses on Facebook for all to see. He didn't direct them at any particular officer, even if he clearly didn't like police.

"F*ck the 83 104 79 98 73 PCTKKKK," Aristy wrote in one status, which include a police officer emoji and two gun emoji. The numbers refer to NYPD precincts.

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Emoji arrest raises questions of First Amendment protection