Archive for the 'Lawsuit' Category

How do the Courts Handle Emojis, Part 1: Interpreting Emoji’s

In 2016, 92% of the online population was reported to use emojis and emoticons in their messages. A total of 2.3 trillion messages were sent which had emojis or emoticons in them. In 2017, 71% of U.S. citizens said they used emojis when asked for a survey. Emojis are an enormous cultural force, entire websites exist to define the different emojis and the sheer number of emojis and emoticons in circulation continues to consistently grow.

As such an enormous part of our daily communication it’s no surprise that these emoticons and emojis have found their way into the courts quite a few times–requiring courts to figure out exactly what they mean in each context.

Emojis have made their presence felt in the legal system for years now. However, the number of U.S. cases dealing with them have skyrocketed in the last few years. 2016 saw 30% of the total cases dealing with emojis in the history of the U.S. If you combine this with 2017, the last two years have included nearly have of all the cases dealing emojis since they first appeared.

These little images have had an impact on cases ranging from criminal threats to landlord tenant law to contract situations. So how exactly do the courts deal with them? What impact do they have on law such as intellectual property or workplace sexual harassment?

It’s a larger topic than you may imagine, so much so that even a cursory glance is going to need two articles to break down. In today’s article we’ll be looking at how the courts look at and parse emojis and emoticons. Later this week, we’ll switch gears and look at some of the most common legal questions that come up in the context of emojis–how they’re treated for sexual harassment and intellectual property purposes.

emojiWhat are Emojis and Emoticons?

First and foremost, it’s worth defining our terms. At this point, pretty much everybody knows what an emoji is and list off a laundry list of examples–emoticons have existed since around 1982. However, there is an important distinction between emoticons and emojis.

Emoticons are a combination of existing symbols to form an image. They can be as simple as a smiley face such as this :). They can be as complicated as the popular table flipping emoticon– /(╯°□°)╯︵ .

However, the important point on which they differ in definition from an emoji is that while an emoticon is made of symbols existing on your keyboard an emoji is an independent image such as a frowning face, a dog, a car, etc. Emojis are much more recent than emoticons. However, at this point it is likely that emojis see more use by the public.

It’s also worth noting that some emojis and emoticons are near universal, while others are proprietary to specific platforms or have variations from platform to platform. Regardless, both are so pervasive in modern communication that courts have been addressing and interpreting them for years.

Emojis in the Courts

Interpreting non-written language–physical gestures for example–is nothing new to the courts. They’ve been doing it for many years, emojis and emoticons are in many ways just another form of this. Many courts have been well equipped to deal with these issues. There are many examples of them doing just that.

In 2011, a Texas man put forth a particularly distasteful argument in his criminal violent sexual assault case that the defendant had consented to sex via a winking face in an otherwise non-sexual text. Thankfully, the court was not buying it and the man was found guilty after they ruled that you could not read that much into a winking smiley face in a text.

The year 2015 saw quite a few notable emoticon cases. A case dealing with the online black markets of the Silk Road ruled that the original emoticons in all communications related to the case should be preserved as they had the potential to change the meaning of statements–even make them mean the opposite of the text.

The Supreme Court even heard a case dealing with emojis. They overturned the conviction of a Pennsylvania man for criminal threats against his ex-wife on Facebook. The threats in question included quotes of threatening rap lyrics and redone scripts from a sketch comedy show to change the context to threatening a wife. The man relied partially on an argument that his threats shouldn’t be taken seriously since they ended in a 😛 emoticon.

The same year saw courts throw out allegations against a New York teenager after he was arrested by police on charges of terrorist threats for posting on social media “run up on me, he gunna get blown down” followed by a police officer emoji and three gun emojis. The court felt these emojis were insufficient to establish that he was making an imminent threat of violence against the police.

More recently, a Michigan court ruled on emojis and emoticons. The court looked at the “:P” emoticon in a defamation case, ruling that the emoticon meant that the statement proceeding it was meant as a light hearted and sarcastic statement as opposed to a defamatory statement to be taken as a serious attack on character.

The court looked to an Israeli court ruling as part of reaching its decision. In the Israeli case, the court ruled on a text reading “Good morning — 🙂 — we want the house ” followed by emojis–in order–of a flamenco dancer, two dancing girls, a peace sign, a comet, a squirrel, and a champagne bottle, then more text reading “just need to go over the details…When suits you?”

The court decided that the celebratory tone of the text, along with its content, reasonably led the landlord to believe the person texting was making an offer on the house–although they didn’t act as a binding contract. The consistency in the type of emojis used apparently convinced the courts of their reasonable interpretation.

Problems When Courts Interpret Emojis

As you can, see courts can and have interpreted emojis as part of their rulings. The above examples are just a few situations of many more where courts have dealt with this problem. However, this doesn’t mean that this interpretation doesn’t raise issues unique to emojis and emoticons.

There an enormous number of emojis and emoticons out there now–a number that is growing every day. There is very little out there in terms of official definitions for these emojis. Websites exist however they have varying levels of success or accuracy when it comes to rounding up every emoji or even properly defining them.

Emojis frequently take on a meaning different from their intended meanings. The folded hands emoji was originally meant to symbolize please or thank you but is much more frequently used as a symbol for praying or a high five.

The skull emoji is very rarely used to symbolize actual death, more frequently used as embarrassment or something else. There’s also very little history here for more recent emojis that courts can look at to define their meaning–the usual approach courts take in defining something like a gesture.

When emojis are strung together, it can change their meaning entirely–making interpretation a more case by case issue. They can also mean a totally different thing from one group to another. For instance, in Japan the bank emoji with the letters “BK” embedded in it is not associated with banks at all but is rather used to represent the slang term “bakkureru” which means hiding from your responsibilities.

This is just one example and you need not travel to a different country to see emojis change meanings, emoji meaning can vary by platform or even friend group. This can easily lead to miscommunications leading to perceived contracts (an email chain can easily make a contract in the right circumstances) or even criminal threats as we’ve seen in the above cases.

How this will impact a case will vary based on the law in question and the facts–usually making it an evidentiary issue. Some sections of law, such as contracts, have established means of handling such misunderstandings among the parties themselves–regulating what happens when one party misinterprets the other party’s meaning.

However, it will still by and large be a case by case issue. It is an issue that is pervasive to nearly every area of law as an evidentiary issue and becomes even more complicated when emojis meet intellectual property law such as copyright or trademark. However, that’s an issue for later this week. Check back later and we’ll go from understanding the basics of “emoji law” to where the rubber hits the road–how they’re treated on specific legal issues.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Is It Protected Speech: Can You Legally Flip Off a Cop?

On August 21, 2017 Indiana State Police trooper Matt Ames pursued a driver along U.S. 41. Ames cut off another driver, Mark May, in order to catch the driver. As Ames cut off May, May “gave the finger” to Ames. When Ames saw the gesture, Ames pursued May and ticketed him for “provocation.” Indiana Criminal Code charges an individual for $500 if the person “recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable person to commit battery commits provocation.”

Mark May challenged his ticket at Terre Haute City Court. The traffic judge found May guilty. May appealed his ticket and won, whereby the conviction was dismissed. The District Attorney’s office declined to proceed further with the case.

Mr. May is now suing the state of Indiana, with assistance from the ACLU, for violating his First and Fourth Amendment rights. The ACLU of Indiana alleges that May’s gesture was expressive conduct protected by the U.S. Constitution. The lawsuit also argues that the state trooper engaged in an unconstitutional search and seizure because Ames lacked probable cause to stop May. May seeks damages, including lost income for his two days from work for his court appearances.

protected speechConstitutional Speech or Provocative Conduct?

The ACLU has made two claims, but the Fourth Amendment claim is dependent on the First Amendment argument. If flipping off a police officer is constitutionally protected speech, then the officer would need another probable cause to stop the vehicle.  If it is not, then Trooper Ames would have witnessed a crime in progress (provocation) and would have probable cause to stop May.

The Supreme Court has ruled that speech can be more than mere words. Conduct can also be a means of communicating ideas. The Court is especially protective of political speech, especially speech meant to change government policy or to protest government conduct. Flag burnings are protected speech under these rules. If “giving the finger” to a government figure is a means of protesting the government, then it would also be protected speech. Suppose that a President of the United States walked down the street and everyone on the street gave him a middle finger salute as he passed by. The First Amendment would protect anyone who pointed their finger at the President.

On the other hand, there might be situations where engaging in provocative behavior would endanger not only the defendant, but the general public as well. Suppose that a gang member was driving down the highway when a member of a rival gang cut in front of him. When the gang member gave the other driver the finger, the rival gang member responds by shooting at him. The other driver misses his target and ends up shooting a nine-year old girl in another car.  Clearly, the middle finger would be a proximate cause for the murder in that case. This example is slightly exaggerated, but road rage in a gun happy culture is a bad idea.

Between these two extremes, we can derive a few ideas where this kind of law might be acceptable. First, government officials should not be able to abuse provocation to protect themselves from citizens. Second, the law should be narrowly tailored so that it protects the public from people who might injury others because of a fight.

How Will This Case Play Out?

The anti-provocation law, as written, is constitutional. Application to this case is a little harder. The fact that Trooper Ames was acting as a representative of the state at the time is central here. Normally, a court would ask whether giving another driver the figure would reasonably cause the other driver to commit battery. If we assume everyone is an adult capable of controlling their emotions, the answer is probably no. So we must ask if Trooper Ames gave the ticket because he was offended or because he thought other drivers would be offended if they were in his situation.

The state would lose if Ames pulled May over because he was personally offended by the gesture. Ames would be abusing his power by punishing a citizen for a personal grudge instead of enforcing the law as an agent of the state. Likewise, the state would lose if May gave Ames the finger because May thought that a police chase would be unsafe or that the person Ames was trying to catch should not have been targeted.

The only way that Ames could lawfully ticket May for giving him the finger is if May was angry that a car, regardless if it was a cop or not, had cut him off and if Ames thought May’s reaction would likely cause any other driver to react poorly. If this exact situation sounds too farfetched, then Mr. May should be able to legally flip off Trooper Ames.

Court Orders Amish to Use Electrical Sewer Pump

A Pennsylvania Appellate Court has ordered an Old Order Amish family to use an electrical sewer pump. The electrical sewer pump would connect the Amish home to the main municipal sewers of the county.

The Amish have often fought with local, state, and even the federal government about compliance with laws that govern the rest of society. The right to home school children exists because the Yoder Amish were successful in winning an exemption from Wisconsin’s compulsory education laws in the 1970s. The Amish are most famous for shunning the use of modern technology, including the use of electricity.

The majority opinion of the court is that the Yoders would not be burdened by the electrical pump. The Yoder Amish have incorporated other electrical devices into their lifestyle, including telephones, power tools, and even cars, without religious conflict. The electrical pump would connect the Amish family’s house to the main sewer line, thereby preventing a potential public health hazard.

amishJudge McCullough dissented, arguing that there less intrusive ways of disposing sewerage without the use of an electrical pump that would violate the Amish’s religious beliefs.

The Sanctuary of Hearth and Home

Although maintaining religious freedoms with public health standards usually requires a balancing act, very little balancing is required in this case.  Laws must not substantially burden religious practices without a compelling reason and without a better way of achieving that goal. If there is a way of disposing sewerage without the use an electrical pump, then the Amish should prevail.

Logically, there must be a way to dispose of sewerage without electricity. Removing human waste is a problem that has existed for as long as society has existed. Since mass consumption of electricity only began in the late 1800s, there must have been ways of disposing human waste before the modern era. If the Amish are willing to take on the burden of using pre-electrical methods of removing sewerage, there is no reason they should be compelled to use technology that is against their religious beliefs.

The majority’s focus on whether the Amish use technology is thus misplaced. Even if the use of an electrical device would not significantly burden the Yoders, Pennsylvania has yet to show that there isn’t a better way. The question is not whether the Amish can use modern technology, but whether the Amish have a way of addressing the public health issues without resorting to modern technology. If they do, then the Amish’s religious beliefs can be preserved without conflict.

What’s the Takeaway?

The most striking aspect of this case is that it involves such an intimate area of human living. The state seeks to regulate the bathroom of a private home. Most people don’t care about what happens after they flush their toilet, but this is government intrusion into a part of the house that most people prefer others not view. This is more intrusive than a bakery refusing to bake a wedding cake. Pennsylvania should work harder to accommodate the Amish’s religious beliefs than they have.

Volvo Settles Disability Suit with Employee Recovering from Addiction

Volvo just settled an Equal Employment Opportunity Commission (EEOC) lawsuit alleging Americans With Disabilities Act (ADA) violations to the tune of $70,000 after they refused to hire a man over his medically prescribed suboxone as part of his recovery process from opioid addiction. It may come as a surprise to some, but it is well established rule that addiction–both to drugs and alcohol–count as a disability under the ADA.

The rules are a bit more complicated than the usual ADA rules, but courts have generally been in agreement that failure to provide appropriate accommodations to those recovering from addiction before taking negative employment action (or even offering a job) can be disability discrimination under the Act. But there’s more to the exact extent of your duties as an employer or your rights as an employee than usual when it comes to addiction. To understand these rules, let’s look at Volvo’s situation, the basic ADA rules, and the rules when it comes to addiction.

Volvo’s Lawsuit and Settlement

The cause of Volvo’s legal woes was a conditional job offer for a laborer position made to an otherwise qualified applicant by the name of Michael Files back in early 2015. The condition was that Files submit to a post-offer physical examination. At this examination, Files disclosed to the nurse that he was taking medically prescribed suboxone as part of his road to recovery from former addiction.

It had been five years since Files had used any drugs–he had been a suboxone-assisted recovery program since 2010. However, the nurse told him that Volvo considered the use of suboxone on the same level or worse than using heroin. When Files showed up to start his job, Volvo’s HR department told him that they wouldn’t hire him because of his suboxone use.

This was the source of their EEOC issues, the ADA requires employees to make hiring decisions (and firing/promotion decisions) based on the qualifications of an applicant as opposed to any disability–including qualified situations where a former addict is involved with a medically supervised treatment program.

Where an ADA qualified disability comes up, the employer must explore reasonable accommodations for the employee or would be employee. This doesn’t mean an employer needs to bankrupt themselves, but they at least need to explore ways to make accommodate the disability.

So long as it isn’t extremely prohibitively expensive, and the disability doesn’t render the person incapable of performing the job the employer must provide these accommodations and consider only the applicants qualifications.

Volvo didn’t investigate the program, or individualized accommodations, whatsoever. It’s also unlikely that the suboxone program would have rendered Files incapable of manual labor. This meant that this would have been a bit of an uphill legal battle or Volvo. Thus, the settlement is not a huge surprise to avoid a costly legal struggle in court.

Besides the $70,000, the Volvo settlement includes a consent decree for the next three-years which bars Volvo from violating the ADA in the future. This is obviously a bit of an odd provision from the outside, obviously Volvo doesn’t want more lawsuits and promising not the break the law could seem a little silly, however it means that Volvo will be held more easily accountable for ADA violations soon.

Volvo is also required under the settlement to amend its policy on post-offer medical and drug evaluations to conform with the ADA. provide ADA training to its STAFF and distribute information to its employees on their ADA rights. Finally, Volvo will need to report to the EEOC on its handling of future complaints regarding ADA violations.

As mentioned, it’s no surprise Volvo settled. The only real remaining issue to discuss in their case with the evidence at hand were the complicated issues of addiction under the ADA. Even with this in mind, it seems likely that the expense of litigating a case with a poor chance of success wasn’t worth it to Volvo. Let’s look at how addiction works under the ADA to understand the thought process of Volvo here.

volvoAddiction and the ADA

There’s a bit of a push and pull when it comes to drug and alcohol use and the ADA. The ADA explicitly allows employers to ensure that they comply with federal laws regulating drug and alcohol use and keep their workplace free of illegal use of drugs and alcohol–including through drug testing. State by state, the rules get a bit more complicated for marijuana. However, at a federal level the ADA also treats addiction as a disability and provides protection to recovering drug addicts and alcoholics.

First and foremost, the ADA does not protect current use of illegal drugs. If this is the case, the addiction does not count as a disability. However, if the person was formerly addicted to drugs but is currently rehabilitated–holding this against them in an employment action violates the ADA. A current user under the ADA is anybody using drugs at the time of the decision–whether casually or as a serious addiction.

The law defines a current user as anybody who has used an illegal drug recently enough to justify an employer’ reasonable belief that there is an ongoing drug issue. Some guidelines for situations when this may be the case include positive drug test results, however the exact definition will be based on the situation at hand–the person and type of drugs involved–and can vary from one to weeks.

In a very few examples, with the right facts and history of repeated relapses courts have even allowed for current use to stretch back as far as months. It’s also worth noting that a former casual user of drugs or alcohol is not protected by the ADA–only those who have suffered addiction.

A qualified individual under the ADA must either have been successfully rehabilitated and no longer using illegal drugs, currently in a rehabilitation program but not using, or erroneously believed to be using illegal drugs such as Mr. File’s medically prescribed rehabilitation.

Even when qualified, employers can still demand that these employees meet the same performance and conduct standards as other employees. An employee cannot enter drug rehabilitation after testing positive for illegal drugs, even the same day as the test, and receive ADA protection.

Common accommodations for qualified individuals under the ADA include modifying work schedules for recovery programs and allowing employees to take leave to receive treatment without punishment.

When it come to alcoholism, the ADA treats it nearly identically to drug addiction. The same types of accommodations must be extended in similar circumstances. You can still obviously prohibit alcohol at work and require employees not to show up drunk.

You also don’t have to offer rehabilitation instead of punishment for any issues at work related to alcohol–this used to be a requirement known as firm choice rules but the EEOC no longer requires it of federal employers.

An employer is also not required to provide leave to an alcoholic employee if they can establish that such treatment would be futile. Employees are further not allowed under the act to blame alcoholism related incidents on their disability when seeking ADA protection.

It is worth noting that, for both alcoholism and drug addiction, an employer is only required to provide accommodations for those who admit to their disability and request accommodations. This means, as an employee, it is important to communicate your situation if you want protection.

This obviously raises a slightly touchy real-world issue, how will an employer react to this sort of news—ADA or no. However, if you want these protections, it is important you are clear about your situation.

Pre – Employment Issues

As is clearly shown by Volvo’s case, the ADA also applies to situations during the hiring process. While an employer can ask if an applicant drinks alcohol or is currently using drugs, they are not allowed to ask if that employee is an alcoholic, addicted to drugs, or has ever been in a rehabilitation program for one of those issues.

The situation changes after a conditional offer of employment has been made, as it was to Mr. Fine. After this point, the employer is free to ask the above questions if they ask everybody. However, as seen with Volvo, you can’t disqualify and employee on that basis alone. You’re allowed to test for drugs before or after a conditional offer of employment and take action if illegal drugs are detected. On the other hand, a medical examination can only be required after a conditional job offer.

After drug testing, it is important to ensure that you are not erroneously detecting a legally prescribed drug. As mentioned above, this can lead to an ADA violation. Normally, an employer isn’t allowed to ask about prescription drugs before making a conditional offer. However, the exception to this is to follow up for explanation on a drug test that comes back positive.

How to Avoid Volvo’s Situation

As either an employee or an employer it is crucial to understand the workings of the ADA to protect your rights or your business respectively. Volvo has settled the matter and is already has steps underway, both under the settlement and otherwise, to help them avoid this sort of costly pay out in the future.

Drug addiction and alcoholism are serious diseases that have enormous impact on the lives of tens of millions of U.S. citizens. The road to recovery can be extremely difficult, even with the help of a rehabilitation program. It can be even more difficult without a job to help support you through those trying times. The ADA takes this into account, along with the realities of running a business, in offering protection to those struggling with these serious issues.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

City of El Cajon Charges Group for Feeding Homeless in Park

Last October, the city of El Cajon banned food sharing events in public spaces. The city justifies the ban on the basis that it prevents the spread of Hepatitis A. An outbreak of Hepatitis A began in November 2016. Since the beginning of 2018, 577 cases of Hepatitis A have been reported. Symptoms include nausea, fever, fatigue, loss of appetite, stomach pain, vomiting, yellowing of the eyes, dark urine, and diarrhea. There have been 20 fatalities so far.

A group called Break the Ban has been holding food sharing events to feed the homeless at these parks in protest of the ban. They have held four such gatherings so far. Organizers claim that each gathering has drawn more people in need. The group believes that the ban’s actual purpose is to prevent homeless people from coming to the parks, since the ban excludes birthday parties, sporting events, and other social gatherings.

Nevertheless, the city has chosen to crack down on the activists. Police have cited nine people on misdemeanor charges for violating the food ban.

The city argues that the ban is necessary because Hepatitis A is usually transmitted by sharing food or having sex with an infected person. Break the Ban counters that Hepatitis A is being spread by human feces and refusal to wash hands after using the restroom.

At first glance, Break the Ban has a decent equal protection claim against the city. Although the city has a reasonable purpose in passing the food ban, the law doesn’t seem like it’s designed to actually address the problem. If preventing the spread of Hepatitis A through food is really the goal, it makes no sense for the city to exempt sports events and birthday parties. Hepatitis A can just as easily spread by giving food to sports players and little children as giving food to homeless people.

el cajonEqual Protection Not Applied Equally

However, Break the Ban would likely lose any lawsuit against the city if they sued for violation of equal protection. Courts give greater protection if the law discriminates based on certain characteristics, such as race or national origin. Laws that discriminate based on race must serve a compelling state interest and the means must narrowly fit that interest. For example, a law that requires all persons of a certain race to wear a badge would likely fail because there is no good purpose that such a law would serve.

The problem Break the Ban has is that being homeless is not a trait that courts give greater protection to. Instead of strict scrutiny, courts will defer to the government as long as the legislature can provide a genuine reason for passing such a law. In this instance, a judge would most likely look at the food ban as a reasonable method of preventing Hepatitis A since infection rates have dropped since the ban was passed.

What Will Happen, Going Forward?

This is not the first case where activists accused city and state governments of banning people from feeding the homeless. Three years ago, Arnold Abbott was arrested for violating a Lauderdale Beach City, Florida ordinance prohibiting the feeding of homeless people. The city dropped its charges last year after the negative publicity became too much.

In fact, it’s the negative publicity which often causes cities to dress up their anti-homeless laws in pretext. Pretext is a false reason given for adverse laws that cover up the government’s true motives. In cases involving protected traits, courts are vigilante against pretext. However, since anti-homeless laws would likely survive a lawsuit even if cities were completely honest about their intent to expel homeless people from city limits, the pretext is not for the courts’ benefit. Pretext such as city health is for public consumption.