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The complexity of this question (whether or not emojis are protected under the First Amendment) lies within defining what counts as speech or rather, what kind of expression doesn't count as a form of speech. It's more difficult than ever to define interpret the First Amendment in terms of what forms of expression and "free speech" it protects because of the variety of mediums and methods we use to communicate.
Take texting, for example. Say friend "A" sends this message to friend "B":
"I'll pick you up in ten minutes for lunch."
If friend "B" responds with:
Is that a neutral response? Passive aggressive? Was the responder in a rush? The text communicates by using enough language, but it doesn't do a completely adequate job.
Now, if instead of just "okay" the receiver responded with "Okay" and added a couple of emojis, many would argue that the message would become more clear because the icons indicate a tone, they take the communication one step further. Still, the message might be much more understandable if friend "A" and friend "B" were close friends and could easily infer the tone of the texts based off of their previous knowledge of one another's communication style. If emojis were part of this scenario, then both friends would begin reasoning something along the lines of: "that's an emoji she frequently uses to express happiness." But does the emoji stand on its own as a form of expression? Do they articulate complete concepts and emotions? Or do they function more along the lines of punctuation? If friend "A" and friend "B" were strangers, I'd venture to guess that there wouldn't be as much trust or consideration of the emoji, although it looks cute.
I think emojis are a helpful resource to have, especially for texting and social media, but without words, they don't do a complete job of communicating emotions. Emojis are like little emotional ornaments that hang on the end of our words. They are cute and fun to use but, are not designed to illustrate the complexity of emotions and don't cover the spectrum of emotions. There is a vast collection of emojis available from faces to religious symbols to food and shoes, however without actual expression using actual words, most emojis are interpretive and there is no universality to them. A "crying face" emoji could mean happiness and joy or it could mean sadness or distress. Do the "two girls dancing" mean friends or romantic love? Emojis are impossible to completely protect under the First Amendment because they are too vague and do not have enough of a definition. At the end of the day, how can you protect something you cannot define? Emojis are emotional clues but do not do a sufficient job of communicating emotions in terms of exactness or scope.
Addy Rogers, 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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