Emerson v. Dart involved a Title VII retaliation claim brought by a female corrections officer. During the course of the litigation, the plaintiff was sanctioned for making a threatening Facebook post to a group of fellow correctional employees:
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 😊. 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 💩.
In upholding the sanctions against Emerson, the appellate court quoted her threatening message and reproduced the emoji images. As How Appealing blogger Howard Bashman noted, "The words 'poop' and 'emoji' don’t appear anywhere in the opinion, raising the question whether Westlaw, Lexis, and similar legal search engines will implement some method of searching for emojis in a judicial opinion."
But actually, as Fastcase CEO Ed Walters noted a few days later, the first hurdle for research services was not how users might search for the emoji, but how the research services would even display them:
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| Fastcase CEO Ed Walters Tweet (Aug. 17, 2018), regarding how research services will handle emoji display |
So how did the major online legal research services compare? The threatening Facebook message included both a smiley face emoticon and the notorious concluding emoji. Each service, as of August 20, displayed the images slightly differently.
First, a quick look at the Seventh Circuit opinion, available at the court's website and through PACER.
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| 7th Circuit opinion, Emerson v. Dart (Aug. 14, 2018) |
Westlaw's version of the opinion, at 2018 WL 3853761, appears to have copied and uploaded an image of the court's version of the emoji. Westlaw's smiley face is a bit hard to see until the font size is enlarged, but overall it is a fairly faithful replication of the Seventh Circuit's opinion.
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| Westlaw display of Emerson v. Dart emoji |
Lexis Advance and Bloomberg Law both displayed the smiley face, but their systems did not display anything in place of the other emoji image – leaving Emerson's quoted post to appear to trail off at the end.
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| Bloomberg Law display of Emerson v. Dart emoji |
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| Lexis Advance display of Emerson v. Dart emoji |
Fastcase, as its CEO indicated on Twitter, spent some time on the second emoji, inserting Unicode #128169 to the end of the transcribed Facebook message to ensure proper visual display. Unfortunately, they overlooked the smiley face, which appears (at least in two tested browsers) as a question mark.
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| Fastcase display of Emerson v. Dart emoji |
Other court opinions that have referenced emoji generally describe their contents in writing, leaving the visuals to be found in the various exhibits filed with the trial court. Researchers can view the screenshot of Paula Emerson's original Facebook post in the trial court docket, where it was Exhibit A in a motion for sanctions. Since this case was in federal court, the motion can be accessed in PACER.gov or through Bloomberg Law's Litigation Intelligence Center. While the court filing best illustrates that none of the research services quite captured the smiley face, it has its own drawbacks in the loss of color and the poor reproduction quality.
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| Trial exhibit in Emerson v. Dart (N.D. Ill. 2016) |
In situations like these, it is worth comparing results if possible, or at least trying to track down the most "official" source for the opinion. For assistance with that process, be sure to Ask a Librarian.
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