A Brooklyn teen was charged, in part, with threatening police officers through his use of emojis. Whether the cartoons can be interpreted as terroristic threats is an open legal question.
Police officers in 2011 leaving at a ceremony honoring those who died on 9/11.
AP Seth Wenig
NEW YORK CITY — Osiris Aristy, a 17-year-old from Brooklyn, does not hold back in his Facebook status updates. He posts about his love for blunts and cough syrup, wanting to buy his mother a bigger home, and his disdain for the police.
Most of Aristy's anti-cop status updates seem tame compared to the vitriol found all over the internet. They are not altogether different from many hip-hop lyrics, where the figure of the cop killer is sometimes an archetype of rebellion and power.
But on the evening of Jan. 15, according to a criminal complaint, Aristy posted a photo of a revolver with bullets beside it, and wrote he felt "like katxhin a body right now." A few minutes later, he posted "nigga run up on me, he gunna get blown down ???." An hour later, he posted, "fuck the 83 104 79 98 73 PCTKKKK ???." (All three of the posts appear to have since been deleted.)
Less than three days later, on Jan. 18, the New York Police Department arrested Aristy at his Bushwick home on a warrant accusing the teenager of "making a terroristic threat," a felony that could carry seven years in prison upon conviction.
None of the Facebook posts that were cited to in the criminal complaint that led to Aristy's arrest appear to include verbal or text-based threat to police officers. The teen's references to law enforcement officers appears to be limited to the use of cartoon representations of police and firearms.
All of which raises a question that almost sounds silly, but is actually very serious: Can emojis be legally interpreted as terroristic threats?
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Osiris Aristy.
facebook.com
As with many laws passed in the months after the attacks of Sept. 11, the New York State statute defining "terroristic threats" is remarkably broad. The charge entered the penal code shortly after the attacks, when the state legislature found a need for laws "specifically designed to combat the evils of terrorism."
The statute says that any statement intending to intimidate civilians or the government by threatening to commit a specific offense can be prosecuted as terrorism. It adds that a defendant's unwillingness or inability to actually carry out the threat "shall be no defense."
But the statute does include one important qualifying factor, legal experts who specialize in civil liberties told BuzzFeed News. Namely, it requires prosecutors to prove that the person making the statement intended it as a threat, rather than a boast or a joke.
"Words that could be construed as threatening are enough to make an arrest," said John Elwood, an attorney with Vinson and Elkins in Washington, D.C. "But they shouldn't be enough to convict someone."
Elwood represents Anthony Elonis, a Pennsylvania man who was sentenced to prison in 2010 after he posted rap lyrics threatening his wife and co-workers on Facebook. The Supreme Court is currently hearing the case and may decide to overturn Elonis' conviction.
The Elonis case hinges on a question usually relegated to comparative literature departments — namely, whether the author's intentions should inform the interpretation of a text, or whether meaning is in the eye of the beholder.
Some states — New York included — hold that authorial intention is important, but others employ a less stringent standard. That lesser standard says a message can be considered a threat if a "reasonable person" would find it threatening. (Whether that reasonable person is an elderly judge or a brash teenager remains unclear.) The Supreme Court is expected to decide which of the two standards should apply on a federal level sometime this year.
Unless a prosecutor can prove that the teenager wanted to scare police officers with emojis, the grand jury convened by Brooklyn District Attorney Ken Thompson will likely dismiss that charge. In Elwood's view, that outcome is likely.
As of Wednesday, the grand jury was still hearing evidence to decide whether to indict Aristy on any combination of the charges he faces. During the arrest, police found a revolver and 25 grams of marijuana in Aristy's bedroom, according to the criminal complaint. This added criminal possession of a weapon and a controlled substance to the teen's charges – and a year and three months to his potential sentence.
The teen's attorney, Fred Pratt, told BuzzFeed News that he did not think his client's statements constituted terroristic threats. Aristy didn't return a request for comment.
"When somebody puts an emoji on a message, there's evidence that they were trying to make a joke, that there's no intent to intimidate," the attorney told BuzzFeed News. "Though I guess someone could argued it was intended as a threatening smiley face."
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