EXTRA: Emoji and the Law

Summary

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The Economics of Everyday Things

EXTRA: Emoji and the Law

Host: Zachary Crockett
Guest: Eric Goldman, Professor of Law, Santa Clara University
Air Date: September 4, 2025

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Episode Overview

This extra episode dives into the surprising and increasingly important role that emojis play in modern law. Host Zachary Crockett interviews Eric Goldman, a law professor and scholar of internet and tech law, who has become an expert in tracking how courts interpret and adjudicate the meaning and use of emoji. From copyright disputes to pivotal court verdicts—sometimes even involving a single emoji—the episode explores the evolving intersection of digital symbols and legal consequences.

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Key Discussion Points and Insights

1. Copyrights, Trademarks, and Emoji Commerce

• The Unicode Consortium is responsible for approving new emojis and publishing recommendations for what they should look like. Device makers like Apple and Google then create their own emoji artwork, which they protect by copyright (03:06-03:50).
• Open source emoji sets (like Openmoji) allow for legal commercial use, and many products available online use these designs (04:01-04:19).
• Emojico and the "Emoji" Trademark:
  • A company called Emojico holds trademarks for the word "emoji" across thousands of product categories.
  • Emojico's strategy: They search for products using the word "emoji" in product descriptions (regardless of the emoji’s actual design or copyright status), file lawsuits with hundreds of defendants at once, and obtain court-ordered freezes of sellers’ Amazon accounts and funds—forcing many to settle out of necessity (04:37-06:05).
  • Quote:

    "Emojico is a licensing company that has obtained trademark registrations for the word emoji in thousands of different product areas... They do an Amazon search for the word emoji and then any product that references the word emoji, they just sue them." — Eric Goldman (04:37)

2. The Legal System's Approach to Emoji

• U.S. Courts as Interpreters:
  • Courts are increasingly called to interpret emoji, especially as they become ubiquitous in digital communication.
  • As of 2025, Goldman has tracked over 1,000 U.S. court cases involving emoji, with more than 300 new cases in 2024 alone (06:46-07:14).
• Emojis are Multifaceted:
  • An emoji can substitute for words, add emphasis, or mean entirely different things depending on context (07:23-08:18).
  • Quote:

    "It might even be the exact same symbol, but performing different functions and at the same time. An interpreter, including a court, needs to be aware of the different interpretive functions and then to make sure that they're applying them properly." — Eric Goldman (08:18)

• Cross-Platform Confusion:
  • Emoji appearances differ by device, causing potential misunderstandings between sender and receiver (08:48-09:15).
  • Quote:

    "The sender sees one face and the recipient sees a face with slightly different details. That’s a recipe for misunderstanding." — Eric Goldman (09:15)

3. Emoji in Legal Evidence and Court Decisions

• Emojis as Evidence:
  • Emoji are increasingly displayed as evidence, sometimes prominently, and occasionally sway verdicts (10:27-10:46).
• Most Common Contexts:
  • Early legal cases involving emoji often pertained to sexual predation, explicitly referencing emojis as evidence in chat logs (11:50-12:11).
• Classic Example—The Eggplant Emoji:
  • Courts recognize that certain emojis (like 🍆) are used as sexual metaphors, not literal illustrations (12:17-13:08).
  • Quote:

    "No one ever uses the eggplant emoji as a vegetable... People are using the eggplant as a metaphor for the general category of sex. It's an easy conclusion for the courts. They're very good at understanding that an eggplant is not just an eggplant." — Eric Goldman (12:17)

• Emoji Forensics in Action:
  • Example: In a sexual harassment case, the precise version of a Heart Eyes emoji in a chat screenshot was shown to be impossible for the device cited—proving fabrication and resulting in the plaintiff losing the case (13:18-14:56).
  • Quote:

    "What the defendant did is what I call emoji forensics. They were looking at the depiction of the emoji as a way of carbon dating the item and showing her story could not possibly be true." — Eric Goldman (14:56)

4. Emoji in Finance and Contracts

• Meme Stocks and the Moon (🌝):
  • Investors scrutinize the use of emojis in public figures' social posts for perceived coded messages about stocks (especially meme stocks like Bed Bath & Beyond), sometimes leading to lawsuits (15:16-16:36).
  • Quote:

    "In the meme stock community, the moonface emoji might be a coded reference to suggest this stock is going to the moon." — Eric Goldman (16:01)

• The Contentious Thumbs Up (👍):
  • Central legal question: Does a thumbs up emoji mean “I acknowledge” or “I agree”?
  • Case 1: Canada — Contract Law
    • Farmer responded to a contract offer with 👍, buyer sued when seller reneged. Court ruled the emoji constituted contract acceptance, leading to damages for the seller (17:18-18:33).
  • Case 2: U.S. — Parental Custody
    • Parent responded with 👍 in messages about custody; court ruled it only acknowledged the message without granting consent (18:38-19:32).
  • Goldman's Analysis:

    "We have two different outcomes with a thumbs up emoji. And I think both... were right. In the case of something like child custody... it makes total sense that the courts would reach different outcomes." — Eric Goldman (19:32)

5. Context, Gesture, and the Future

• Body Language vs. Digital Symbols:
  • Unlike physical gestures, emojis lack context like facial expression, tone, or intent—so courts must rely on surrounding evidence (19:45-20:17).
• Beyond Emoji: Evolution of Digital Communication:
  • Anticipation of new forms: Memojis, Animojis, GIFs, memes, etc., will continue to challenge courtrooms (20:22-20:56).
  • Quote:

    "There's going to be additional iterations of ways that we can express ourselves online that are going to eventually eclipse emojis in my mind." — Eric Goldman (20:56)

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Notable Quotes & Memorable Moments

• On Emojico's trademark tactics:

  "It's like the old protection rackets that we would joke about with the mob. You know, it'd be a shame if anything happened to your business, but you can pay me so that nothing bad will happen." — Eric Goldman (06:10)

• On emoji’s legal weight:

  "Use emojis, use them smartly. Recognize that like the words we pick, like the hand gestures we make and the facial expression we make, they all have legal consequences. But don't allow that to inhibit the beauty of human communication." — Eric Goldman (20:59)

• On personal use:

  "Yeah. My kids will laugh at me every single time." — Eric Goldman, on his continued use of 👍 (21:24)

• Crockett’s reflection on legal nuance:

  "We don't have to talk about these cases in like, excruciating detail or anything, but…" (21:31)
  "I'm sorry, you're talking to a law professor, so excruciating detail kind of comes with the territory." — Eric Goldman (21:54)

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Timestamps for Key Segments

• [01:25] Content warning; introduction of Eric Goldman
• [02:35–04:37] Emoji copyright and Emojico’s trademark strategy
• [06:46–08:18] How courts track and interpret the meaning of emoji
• [09:10–09:25] Cross-platform emoji confusion
• [11:50–13:08] Emoji as evidence in sexual predation cases, the eggplant emoji
• [13:18–14:56] Emoji forensics (Heart Eyes case)
• [15:16–16:36] Emoji, meme stocks, and securities lawsuits
• [16:43–19:32] The thumbs up—contract v. acknowledgment
• [20:22–20:56] The future: memojis, GIFs, and next-gen digital symbols
• [20:59–21:24] Personal takeaways and Goldman's advice on emoji use

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Takeaway

The episode reveals that our digital shorthand—whether it’s a 👍, 🍆, or 🌝—can have wide-reaching legal implications, sometimes amounting to contractual agreements or evidence of intent. Courts are adapting to these new forms of expression, but ambiguity, technology, and evolving norms mean that context is everything. As communication continues to shift toward symbols and memes, the law will keep racing to interpret—and sometimes catch up with—what we really mean when we click “send.”

Transcript

[Zachary Crockett]

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[Zachary Crockett]

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[Zachary Crockett]

Hey, it's Zach. Before I get started, just want to let you know that we touch on some adult topics in this episode. If you're listening with kids, you might want to review it first. All right, on with the show. Sometimes we interview really interesting people for this podcast who just don't end up making it into an episode like this guy.

[Eric Goldman]

I love talking about emojis, so we got lots to talk about.

[Zachary Crockett]

That's Eric Goldman.

[Eric Goldman]

I am a professor of law. I'm associate dean for research, and I'm co director of the HITECH Law Institute. And that's all at Santa Clara University School of Law.

[Zachary Crockett]

A couple weeks ago, we did an episode on emoji. You know, smiley Faces, Hearts Fire. While I was doing research for that episode, I came across an incredible 2018 paper by Goldman titled Emojis and the Law. The legal side of emoji didn't quite fit in with the rest of our episode. But today we're going to give Goldman the stage, because as it turns out, lawyers and judges have a lot to say on the subject.

[Eric Goldman]

The courts will play a role in determining the meaning of emoji. That outcome's inevitable. The question is whether they're doing it fairly.

[Zachary Crockett]

For the Freakonomics Radio Network, this is the economics of Everyday Things. I'm Zachary Crockett. Today, an extra episode for you on the unexpected Legal side of emoji. When I talked to Eric Goldman, he had just gotten back from a trip to China.

[Eric Goldman]

Apparently I'm big in China. I did a five city speaking tour.

[Zachary Crockett]

He was there to present on something that's been causing a lot of trouble for Chinese merchants selling products on Amazon. And in a way, it tied back to a question I had had about emoji while we were working on our episode. In it, we talked about how a non profit organization called the Unicode Consortium is responsible for approving the emoji that are on our phones. They decide that we need an icon of, say, a shovel, then publish a recommendation for what that shovel should look like. And then the companies that make mobile operating systems like Apple and Google, create their own designs for the shovel emoji. Generally, these companies protect their designs with copyrights.

[Eric Goldman]

Apple has hundreds if not thousands of copyright in individual emoji depictions. They've been successful at convincing the copyright office to uphold their request.

[Zachary Crockett]

There are also open source emoji sets from places like Openmoji that are free for commercial use. If you go on Amazon, you'll find hundreds of emoji themed products for sale. From Christmas tree ornaments to earrings. Most of them are based on those open source emoji. So it's completely legal for them to sell goods with those designs. But as Goldman warned the merchants in China, a threat is lurking in the shadows. Because as it turns out, there's a company called Emojico that has trademarks on the dictionary word emoji.

[Eric Goldman]

Emojico is a licensing company that has obtained trademark registrations for the word emoji and in thousands of different product areas, things like pens and mugs and T shirts, even sex toys. They do an Amazon search for the word emoji and then any product that references the word emoji, they just sue them.

[Zachary Crockett]

So if I'm selling like a coffee mug that uses an open source poop emoji on it that doesn't infringe on any trademark, Emojico can still send me a cease and desist for simply using the word emoji in the description of my product.

[Eric Goldman]

So the short answer is yes, but it's actually worse. The way it works is that Emojico will file a lawsuit with hundreds of defendants listed in the lawsuit. And then they go to the court, they explain that they think there's been trademark infringement by these online merchants. The court will issue a temporary restraining order that is designed to keep everything status quo until the court can take a closer look at the case. But by Keeping things as status quo. Online marketplaces like Amazon will freeze a merchant's account and they will freeze a merchant's cash and they'll say, you're out of business until the court says otherwise or the trademark owner says otherwise. Emojico can then say, if you want to have your business back, you can buy it back from us, right, as a check. And they've done that hundreds, if not thousands of times.

[Zachary Crockett]

We reached out to Emojico for comment, but they didn't get back to us.

[Eric Goldman]

It's like the old protection rackets that we would joke about with the mob. You know, it'd be a shame if anything happened to your business, but you can pay me so that nothing bad will happen.

[Zachary Crockett]

Could Emojico technically even go after a big company like Apple for using the word emoji?

[Eric Goldman]

They wouldn't likely go after a big player like Apple. Apple would fight back. They go after people who can't fight back.

[Zachary Crockett]

For Goldman, this is just an anecdote. As a scholar of Internet and tech law, he's taken up a special interest in how new forms of communication, including emoji, are interpreted by the courts.

[Eric Goldman]

I have alerts set up in various electronic databases that notify me every time a court uses the word emoji or emoticon. And every time that I see a case like that, then I add it to my census, which is well over 1,000 cases now in the US this year, the number will be over 300. Almost every case now, where you've got emails or text messages or Slack messages going to have emojis in them, that's just now ordinary standard procedure for most.

[Zachary Crockett]

Litigators as a form of communication. Emoji aren't so simple. Sometimes we use them as a substitute for words.

[Eric Goldman]

I use, for example, the thumbs up emoji to signal okay all the time. So if someone sends me an email and they said, I'm going to follow up with you in the following way, I'll send back a thumbs up emoji. That's the same as saying, got it? Or okay, I'm just substituting in the emoji for that.

[Zachary Crockett]

Other times, we use them to emphasize the things we write or to convey extra meaning.

[Eric Goldman]

I might say something like I love you and then add a heart or a kiss or the emoji with the three hearts that shows I'm feeling good. The text story said what it needed to say, but the emoji just says, and I really mean it.

[Zachary Crockett]

In many cases, emoji take on a life of their Own. For instance, a skull emoji is often used to communicate laughter rather than death. People have all kinds of ways of communicating with emoji, and not every reader can understand what a specific icon means in a particular context.

[Eric Goldman]

Most of the time, a particular communication format or method really only serves one purpose here. The emojis are serving a variety of purposes. It might even be the exact same symbol, but performing different functions and at the same time. And interpreter, including a court, needs to be aware of the different interpretive functions and then to make sure that they're applying them properly.

[Zachary Crockett]

This is complicated a bit more by the fact that each platform has their own designs for emoji.

[Eric Goldman]

If I type out the characters I, L, O V, E U, the person who gets the message is going to see those characters and they're going to recognize them the same. That's not necessarily the case with emojis. They can look different on different platforms.

[Zachary Crockett]

So if you send like a cringe face emoji on an iPhone, it'll look different on a Samsung device.

[Eric Goldman]

Correct. The sender sees one face and the recipient sees a face with slightly different details. That's a recipe for misunderstanding.

[Zachary Crockett]

So how does all of this play out in the courts? Well, in one sense, this isn't unlike any other form of communication. Hand gestures, facial expressions, body language, and slang can all be ambiguous. And judges already have really good ways of interpreting those things.

[Eric Goldman]

U.S. courts are really very capable of interpreting communication in order to divine reasonable meaning associated with it. So when it comes to understanding whether or not a person wearing a particular clothing with a color in it is part of a gang or not, courts are pretty good at figuring out the differences between someone just randomly picking something out of their wardrobe and someone signaling that they were a member of a gang by deliberately invoking the colors. Because courts are so good at interpreting non textual communication, emojis actually work really well for them.

[Zachary Crockett]

Even so, emoji are showing up in more court cases than ever before. They're pulled from text chains and chat logs and displayed on big charts in front of juries. And sometimes they even play a pivotal role in the verdict that's coming up.

[Walmart Wellness Event Announcer]

Honey, do not make plans. Saturday, September 13th.

[Eric Goldman]

Okay.

[Curious Listener]

Why?

[Interested Listener]

What's happening?

[Walmart Wellness Event Announcer]

The Walmart wellness event. Flu shots, health screenings, free samples from those brands.

[Interested Listener]

You like all that at Walmart?

[Walmart Wellness Event Announcer]

We can just walk right in, no appointment needed. Who knew we could cover our health and wellness needs at Walmart?

[Interested Listener]

Check the calendar.

[Walmart Wellness Event Announcer]

Saturday, September 13th Walmart wellness event. You knew?

[Zachary Crockett]

I knew.

[Walmart Wellness Event Advertiser]

Check in on your health at the same place you already shop. Visit Walmart Saturday, September 13th for our semi annual wellness event Flu Shot. Subject to availability and applicable state law. Age restrictions apply. Free samples while supplies last.

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[Zachary Crockett]

When he looks at his database of court opinions that reference emoji, Eric Goldman says one type of case stands out.

[Eric Goldman]

Historically, the number one category of places emoji showed up in court opinions related to sexual predation cases. There was a chat log or a message transcript of conversations between these individuals, all in the context of seeking sex.

[Zachary Crockett]

One emoji in particular tends to take center stage.

[Eric Goldman]

No one ever uses the A clan emoji as a vegetable. If you look at Unicode's representative glyph, it's basically in an oval shape, kind of like an hourglass type of shape that they provide as the outline for that. And someone somewhere along the way decided to depict that more in the Japanese eggplant style, which is basically long and thin. So they took Unicode's representative glyph and they picked a different outline of an emoji. It looks like a penis. It has come up a couple of dozen times in the case census I've maintained, and people are using the eggplant as a metaphor for the general category of sex. It's an easy conclusion for the courts. They're very good at understanding that an eggplant is not just an eggplant.

[Zachary Crockett]

In most instances, emoji are just a passing reference in the evidence. But Goldman also told me about a case in which the emoji itself was the smoking gun.

[Eric Goldman]

The setup is A woman complains that she was sexually harassed in her workplace, and as part of that she includes a trans a chat log where there were some indicators that confirmed her story of sexual harassment, including the hard eyes emoji. And the defendant said, I didn't sexually harass her. We've got a classic he said, she said story. We have to figure out who we believe. The defendant said, I want to see the device where this transcript allegedly took place. The device is unavailable. Says I don't have it anymore. But she indicates that it was on a older version of an iPhone.

[Zachary Crockett]

The defense team did some research and realized that the version of the Heart Eyes emoji used in the text transcript provided by this woman couldn't have possibly been typed on an old iPhone model.

[Eric Goldman]

What happened is that over time, Apple has evolved the depiction of the Heart Eyes emoji so that it looks different on different variations of the iPhone. Now, the differences are not significant. The eyes got a little bit bigger and the smile got a little bit bigger. But it was enough to show that if she had taken that transcript screenshot on the device, she claimed she could not have seen that emoji because the version that she was using was only visible on a later version of Apple's operating system.

[Zachary Crockett]

In the end, the court ruled that the Heart Eyes emoji in the provided text transcript was fabricated. The woman lost the case.

[Eric Goldman]

Essentially, what the defendant did is what I call emoji forensics. They were looking at the depiction of the emoji as a way of carbon dating the item and showing that her story could not possibly be true.

[Zachary Crockett]

Sometimes emoji even find themselves at the center of a security fraud lawsuit.

[Eric Goldman]

There's an entire genre of investing that's sometimes called moving meme stocks. These are situations where the stock price doesn't necessarily reflect the underlying economic value in that community. There's essentially a form of pump and dump that takes place where someone buys stock hypes. It gets people to buy the stock as well, drives up the price, and then dumps the stock, leaving the latercomers holding the bag.

[Zachary Crockett]

In 2022, the activist investor Ryan Cohen took a big stake in the ailing retailer Bed Bath and Beyond. And he shared a social media post that included an emoji called the Full Moon Face.

[Eric Goldman]

This is a long tail emoji. This is something that doesn't get used very often. But in the meme stock community, the moonface emoji might be a coded reference to suggest this stock is going to the moon. So some stockholders in Bed Bath beyond challenged Ryan Cohen for including the Moon faced emoji in his message, saying essentially he was hyping up the stock, telling everyone to buy it so that he could liquidate his position and make a profit. And the court said that's a plausible interpretation of why he included the Moonface emoji.

[Zachary Crockett]

Sometimes even the most innocent emoji ends up at the center of a legal dispute. Like the thumbs up.

[Eric Goldman]

I love the thumbs up emoji. It's one of my most commonly used emojis.

[Zachary Crockett]

Yeah, it's the classic dad emoji.

[Eric Goldman]

Sadly, I live up to the stereotype.

[Zachary Crockett]

Goldman says the thumbs up is more contentious than it seems.

[Eric Goldman]

The thumbs up emoji has come up in a number of litigated cases. The last time I counted was over 50. And the essential gist of the legal dispute is whether or not a thumbs up emoji means that I acknowledge your message or I agree with your message.

[Zachary Crockett]

Take for instance, a case that played out in Canada when a farmer offered to sell around £190,000 of flax to a grain buyer.

[Eric Goldman]

The buyer sent over a contract via text message and said, I'd like to buy your flax. The seller responded with a thumbs up emoji. As it turned out, that particular year, flax crop didn't go the way they wanted it to. The seller says, I'm not going to sell you my flax. The buyer says, we have a contract. You gave me the thumbs up emoji. And I interpret that as an assent to my offer. Those particular parties had a history of dealing with each other that suggested that the thumbs up emoji in their relationship would have been an ascent and not just acknowledgement. And so the court used standard contract interpretive principles to look at the conversation they had as well as the dealing that they had in the past to say, I'm pretty confident that this was not acknowledgement. This is an acceptance. And the court held that it was in fact a binding contract. And as a result, the seller owed tens of thousands of dollars of damages for not performing under that contract.

[Zachary Crockett]

But the courts don't always accept a thumbs up emoji as an indication of agreement.

[Eric Goldman]

There's another case here in the US where the parents of a child who were now separated were discussing whether the child live with one parent in a foreign country or here in the US with the other parent. And in those conversations, one of the parents gave the thumbs up emoji and the other parent said, that was an assent to allowing me to have the child stay with me as opposed to the other parent. And the court said, no, I don't think so. In that context, that was an acknowledgement. The parent was simply signaling that they were acknowledging the message, but they were not agreeing to transfer custody of their child to another country by the thumbs up of emoji. And so we have two different outcomes with a thumbs up emoji. And I think both of those courts were right. In the case of something like child custody, the stakes at issue, it makes total sense that the courts would reach different outcomes.

[Zachary Crockett]

I wonder, hypothetically, if those parents were in person and one of the parents gave a physical thumbs up and it was like caught on a ring, video camera or something. How that would play out differently, it.

[Eric Goldman]

Might very well reach a different outcome. We would look at the body language, the facial expressions, the sincerity of the delivery of the hand gesture, and we could try to divine what that person was saying when they did the thumbs up. But the emojis, we've stripped away the facial expressions, we've stripped away the body language, we stripped away the sincerity of the hand gesture. All we get is a single symbol. And as a result, the courts are going to have to rely on other contextual clues to interpret it.

[Zachary Crockett]

Emoji won't be the last thing to shake up that interpretive process.

[Eric Goldman]

We're already evolving our communication methods to other forms of non textual communication. There's been a proliferation of variations of emojis such as memojis or animojis. And of course, people are also using memes and GIFs in some cases for the same basic purpose. There's going to be additional iterations of ways that we can express ourselves online that are going to eventually eclipse emojis in my mind.

[Zachary Crockett]

Has researching all this made you think twice about sending an emoji now?

[Eric Goldman]

Yeah, no doubt about that. Honestly, I think that's a healthy thing. And I encourage people to use emojis, use them smartly. Recognize that like the words we pick, like the hand gestures we make and the facial expression we make, they all have legal consequences. But don't allow that to inhibit the beauty of human communication. It's such a great way for us to talk to each other.

[Zachary Crockett]

So you're sticking with a thumbs up emoji?

[Eric Goldman]

Yeah. My kids will laugh at me every single time.

[Zachary Crockett]

For the economics of everyday things. I'm Zachary Crockett. This episode was produced by NEAT and Sarah Lilly and mixed by Jeremy Johnston. We had help from Daniel Moritz Rapson. We don't have to talk about these cases in like, excruciating detail or anything, but.

[Eric Goldman]

I'm sorry, you're talking to a law professor, so excruciating detail kind of comes with the territory.

[Zachary Crockett]

The Freakonomics Radio Network. The hidden side of everything.

[Walmart Wellness Event Advertiser]

Stitcher.

[Walmart Wellness Event Announcer]

Honey, do not make plans. Saturday, September 13th.

[Eric Goldman]

Okay?

[Curious Listener]

Why?

[Interested Listener]

What's happening?

[Walmart Wellness Event Announcer]

The Walmart Wellness event. Flu shots, health screenings, free samples from those brands you like.

[Interested Listener]

All that at Walmart?

[Walmart Wellness Event Announcer]

We can just walk right in, no appointment needed. Who knew we could cover our health and wellness needs at Walmart?

[Interested Listener]

Check the calendar. Saturday, September 13th.

[Walmart Wellness Event Announcer]

Walmart wellness event. You knew?

[Zachary Crockett]

I knew.

[Walmart Wellness Event Advertiser]

Check in on your health at the same place you already shop. Visit Walmart Saturday, September 13th for our semi annual wellness event Flu Shot. Subject to availability and applicable state law, age restrictions apply. Free samples while supplies last year.