Despite the decision in the American Silk Road case that emoji should be included in text provided to the fact finder, and the inclusion of a smiley face pictograph in a British judgment, there has been a noticeable lack of considered judicial thought on the non-verbal contributions of emoji. Almost all cases have been resolved at first instance and on other grounds. The reluctance of the US Supreme Court in the Elonis decision to provide some direction to our interpretation of nonverbal, digital speech has signalled a need for more informed guidance than can be provided by trial or appellate courts at this time
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