Happy face. Sad face. Angry face. There's no better way to convey these expressions in a text message than through the use of emojis. Usually, in the form of images and icons, emojis serve to increase the precision and clarity of our messages in electronic communication. The emoji world has expanded to include food, animals, and even activities like walking and dancing. Emojis can serve to lighten the mood, convey sarcasm, and overall to communicate in places where words might fail us. Because they're an extension of our speech and communication, they should be protected as part of our freedom of speech.
It was determined in Cohen v. California that two elements of speech - the emotive and the cognitive - are protected by the law. This is based on the rationale that it would be difficult to strictly regulate what is said because it runs the risk of suppressing ideas.
For this reason, it is important that censorship is minimized in free speech. That being said, the use of emojis is a recent development of speech and expression, but it is a form nevertheless. Emojis can often do a lot to express certain nuances and intonations in communication that are often lost in the boring text of a message. Read the following conversation:
Person A: Do you want to do something tonight?
Person B: Maybe.
Now read it again, this time with an emoji:
Person A: Do you want to do something tonight?
Person B: Maybe. (:
The happy face in the second example serves to convey a sense of enthusiasm on the part of Person B that isn't conveyed in the first example. The differences are subtle, but emojis can be powerful tools. With the additional fact that social media has been finding its way into our everyday lives, emojis have found their way up debates in the courts. It is a complicated issue because it isn't always clear what emojis mean or whether they should be taken literally. Take, for example, the knife or gun emoji. Can they be used as evidence of a threat in court? If emojis are to be protected under our freedom of speech, then yes, they can also be used as evidence. But with any issue taken up in the Supreme Court regarding the freedom of free speech, there are many elements to take into consideration before a decision is made. Emojis are a form of emoting on the digital platform, of which their use and longstanding effects are still evolving.
Mina Kim, a student in Jon Pfeiffer's Fall 2017 Media Law class at Pepperdine University, wrote the above essay in response to the prompt:In Cohen v. California, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas). How do emojis come into play? Are they expressions of emotions? Of ideas? Some hybrid or would it be fallacious to even draw the connection?
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