By Miranda Browne (‘16)  In mid-January Osiris Aristy, a Brooklyn teenager, was arrested for allegedly threatening the NYPD using emoji in his Facebook status updates. Aristy posted “N**** run up on me, he gunna get blown down,” then an emoji of a police officer followed by three guns. Later than night, he followed it up with “F*** the 83 104 79 98 73 PCTKKKK,” with another police emoji with two guns. According to authorities, the latter post could reference several police precincts in the New York area. Aristy, who has 12 prior arrests for charges including robbery and assault under his belt, has been charged with making terroristic threats and aggravated harassment, as well as possession of the weapon and marijuana police found when they searched his home. His trial began on January 30, 2015. Although the presumption of most citizens is that their speech is always protected under the First Amendment, the Supreme Court has allowed several exceptions over the years, including one for “true threats.” Virginia v. Black defines a true threat as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Justice O’Connor, delivering the majority opinion, went on to note that “The speaker need not actually intend to carry out the threat.” The intent aspect of a true threat is under inspection by the Supreme Court currently in Elonis v. United States. Elonis was arrested for allegedly making true threats against his estranged wife in the form of rap lyrics posted in his Facebook status updates. The Court is considering whether a true threat requires a subjective intent to threaten, or if it is enough that a reasonable person would feel threatened by the statement. New York’s terroristic threat statute follows the reasonable person standard, making it a felony to threaten a specific offense, with the intent to intimidate, which causes a reasonable fear that the threat will be followed through on in the immediate future.
The status updates Aristy was arrested for were deleted, but these include similar strings of emoji.
Following the recent murder of two NYPD officers, police are on high alert. An ordinary reasonable person might not see a threat in this arrangement of characters, but the hypersensitive NYPD, who have received over 40 alleged threats since the killings of Officers Ramos and Liu clearly feel differently. Under the New York statute’s objective standard, Aristy’s intent in posting the emoji is irrelevant in the face of the fear it generates with readers. Its only requirement is that the fear be reasonable. The state will likely argue that, given his history of violent arrests, it was reasonable to fear that he may take some violent action against the police. But this ignores the extreme ambiguity of communicating through emoji. The cop and gun emojis in Aristy’s status updates could have meant any number of things, including perhaps that he would shoot people “who run up on” him, the way cops shoot people on television, or that he now owned three police pistols. Even if he was talking about hurting cops, it could have been in the context of fight back in self-defense if they “run up on” him, as discussed in this blog. They are inherently ambiguous characters, with more than one use depending on the circumstances. Even the gun can be used to congratulate someone on a tough workout, or signal the start of a competition. Without the context that allowed this to serve as usable communication to his Facebook friends, it would be unreasonable to assume, as the police did, that the guns were meant to be pointed at the emoji’s head rather than placed next to him.

“Attention RHS students ”

This is in stark contrast to the November arrest of two teens for posting anonymous school bomb threats to the app Yik Yak. They were charged with making terroristic threats. Unlike Aristy’s Facebook status updates, the Yik Yak threats were targeted, listing the schools specifically. This creates a much more reasonable fear of the threats being followed through on. At the same time, they were available to be read by anyone with access to the app. There are no friends in Yik Yak. This removes most of the context rich environment in which emoji are usually interpreted, leaving only the plainest meaning of what is a fairly straightforward message to begin with. Aristy didn’t issue a direct bomb threat using tiny pictures of bombs with the name of the school. He posted conversationally, in language that was difficult to read for those not in his intended audience, and followed it up with a series of emoji meant to tell the rest of a story that his readers already knew. This should not be sufficient to make a reasonable person, or even a reasonable cop fear for their life.