The 7th U.S. Circuit Court of Appeals is making headlines for its recent ruling in an employment discrimination case, although probably not for the reason the Court would like: its decision.
Rather, the 7th Circuit is being recognized in Emerson v Dart as the first federal Circuit Court to include a “poop” emoji in a published opinion.
Yes, a pile of poop. Yes, in a federal court decision.
No, this is not a bunch of BS. (Or is it?)
Now let’s be fair and point out the 7th Circuit did not use the poop emoji the same way we might use it when texting a friend or posting on social media. Instead, the emoji was part of a comment the plaintiff had made on Facebook and the Court was quoting the comment in its opinion.
Why did the Court include the plaintiff’s Facebook comment in the opinion? Because the comment was made while the employment discrimination suit was pending. In fact, the comment was a central piece of evidence in the case … and led to the plaintiff being hit with thousands of dollars in sanctions.
The plaintiff was a corrections officer who sued the defendants in the U.S. District Court for the Northern District of Illinois. She asserted that two county employees had discriminated against her when she worked at a county detention facility.
After litigation in the case began, the plaintiff posted the following on Facebook:
“To my fellow officers! DON’T GET IN A FIGHT THAT IS NOT, I REPEAT THAT IS NOT YOURS. I’VE JUST RECEIVED THE NAMES OF SOME PEOPLE THAT THE COUNTY IS ATTEMPTING TO USE AS WITNESSES, (1) IS A SGT, (2) OFFICERS, (1) OPR INVESTIGATOR, on the job 18mths, this fight is from 2009 & I’ve been off since 2012, sooooo do the math. Yes, I will definitely put your name out there in due time [insert smiley emoji here] This is a PSA for those of you still believing that being a liar, brown noser will get you something. MESSING WITH ME WILL GET YOU YOUR OWN CERTIFIED MAIL. SO GLAD THAT THE ARROGANCE OF THIS EMPLOYER HAS THEM BELIEVING THEIR OWN "poop" emoji”
When defense lawyers learned of the plaintiff’s Facebook comment, they filed a motion for sanctions. The District Court found the Facebook post looked a lot like a litigant threatening potential witnesses in the case and slapped the plaintiff with $17,000 in sanctions.
On appeal, the 7th Circuit affirmed the sanctions. In its opinion, the Court quoted the plaintiff’s Facebook comment – including the "poop" emoji – because it was crucial to the appeal.
In its analysis, the 7th Circuit said the plaintiff’s argument “border[ed] on preposterous,” noting that she targeted and publicly threatened potential witnesses. “She … claims that her pledge to serve ‘certified mail’ on those who ‘mess’ with her is ambiguous,” the Court said. “We see no ambiguity, and neither did [the] intended targets.”
The 7th Circuit also called “nonsensical” the plaintiff’s claim that her Facebook post could be “read fairly as an open call to the union members to testify truthfully” because she threatened only “liars” with legal action.
Regarding the plaintiff’s argument that the sanctions amount was improper, the Court said, “This argument has no merit. … [She] does not offer a shred of evidence or argument to explain why this was improper. It is her burden to do so, and we will not rescue her on appeal.”
Lawyers: Don’t Discount The Emoji
Although the 7th Circuit’s opinion did not address the impact or meaning of the poop emoji, its presence in the opinion shows just how important these quirky little pictures can be – and how they can get a client into trouble.
According to an article in the May 2018 issue of BRIEFS, the monthly publication of the Ingham County Bar Association, more than 70 percent of Americans use emoji on a daily basis, whether in their text messages, social media commentary or emails.
The exploding use of emoji is forcing courts across the country to interpret the meaning of these strange little pictures when they’re part of admissible evidence (text messages, social media posts or emails). In fact, here in Michigan, two courts have interpreted the meaning of the “stuck-out tongue” emoji, with the courts leading to opposite conclusions based on the facts of the case. (See, Enjaian v Schlissel and Ghanam v Does.)
As more people continue to use emoji, we as attorneys cannot ignore their importance. When talking to clients, we must learn and understand the clients’ use of emoji in all relevant communications. We must talk openly with our clients about why an emoji was used in a social media post, a text or an email. In order to do this, we as lawyers need to better understand the subtle nuances of emoji.
Perhaps more importantly, we must advise our clients to refrain from commenting publicly about their case, especially on social media. The plaintiff in Emerson did just that – and it cost her a five-figure sum.
And that’s no BS.