When Ross W. Ulbricht, a thirty-year-old California man accused by the US government of running the black-market website Silk Road, was on trial in a federal district court in Manhattan in early 2015, his defense attorney lodged an unusual complaint with the judge. He claimed that prosecutors had failed to include a vital piece of evidence in the case it presented to the jury, one that spoke to his client’s innocence and credibility: a smiley face.11x1 Benjamin Weiser, “At Trial, Lawyers Fight to Include Evidence They Call Vital: Emoji,” New York Times, January 29, 2015.
It turns out that the purported criminal mastermind was, like many of us, a devotee of the emoji, or emoticon. Ulbricht’s case is not the only one in which emoticons have been weighed in the balance. A case that came before the US Supreme Court in 2015 hinged on whether a man who made threats on Facebook against his estranged wife should have his conviction overturned. (He eventually won his case before the Supreme Court.) The man claimed that his threats weren’t serious because they included emoji of a face with its tongue sticking out, a tactic suggesting that perhaps we have entered the era of the Winkie Defense.