The dawning of the digital age introduced new and unique interpretive quandaries for judges and litigators alike. These quandaries include (but are not limited to) misinterpretation of pictorial slang as used in instant messaging, new or collateral meanings invented by phrases paired with specific emoticons or emojis, and the existence of emojis alone as communicative accessories.

This Note analyzes how lawyers and judges have essential free reign to treat emojis as they see fit: a prosecutor can argue, even in good faith, that the inclusion of an emoji depicting an open flame means the sender knew the heroin he sold was laced with fentanyl. A family law attorney can presume a thumbs-up emoji meant informed consent to alleged parental kidnapping. The common consensus among jurists is that emojis are devoid of formality, irrelevant to courtroom analysis in most situations, and impossible to consistently interpret. While word-based slang is often addressed through means of experts, thorough interrogation, and witness testimony, picture-based slang has been relegated to gestures from the bench indicating sideline insignificance at best. While emoji meaning and intentionality often changes—even on a daily basis—litigators and judges do not have the luxury of ignoring them as a result. Emojis’ apparent ambiguity does not excuse willful ignorance any more than new and unfamiliar slang or code words can be ignored because their meaning is not plain-language apparent to the bench.

Litigators have a responsibility to understand how communication has changed in the digital age due to the introduction of pictorial slang. The steps to competency are threefold: 1) understand the interpretive consequences of copyright-derived cross-platform depiction diversity; 2) determine meaning and intentionality from the parties themselves or the parties’ communities (including racial, ethnic, and geographical factors); and 3) review and depict emojis in their natural habitat, the context in which they were originally seen, sent, and received.