Laura E. Little (Professor, Temple Law School) and Max Klenk (Student, Temple Law School)
Beware the world of non-verbal expression, where a wave, a wink, or even a thumbs-up emoji can cause serious legal problems. The following examples of North American cases illustrate an unlikely cross-section of trouble-making gestures. Although not hilarious, this quirky assortment of cases illustrates the breadth of law’s struggle with the mysteries of human communication and the comedy that can arise from odd or random occurrences. The examples range from private law disputes (contract and tort) — to contempt of court and criminal prosecutions — to principles of constitutional law.
Thumbs-Up Emoji: The Silent Contract?
Starting with a classic: the thumbs-up emoji. You might think it is a silent equivalent of “Yeah, sure,” but in 2023, a Canadian court decided that a thumbs-up emoji is more like the equivalent of signing a contract with your fingertips. Here’s the dispute that gave rise to the decision: a farmer and a grain buyer were negotiating a contract for flax. The buyer sent a signed contract to the farmer, asking for confirmation. The farmer sent back a thumbs-up emoji, which the buyer interpreted as a full-on, legally binding approval. The court agreed, ruling that the thumbs-up emoji amounted to a digital signature.
In another random emoji case, a New York state court in 2022 in Lightstone RE LLC v. Zinnex, 2022 WL 375785 (NY 2022)came to an opposite conclusion. The case turned on a sale of Personal Protective Equipment (flashback to jumpsuits, masks, and gloves during COVID-19). In this case, the seller texted a thumbs-up in response to a payment schedule, and the buyer asserted that the emoji created a binding contract. Reasoning that the issue turned on the intent of both parties and accepting the buyer’s representations of intent, the court found meeting of the minds was lacking. No contract.
The cautionary takeaway of these cases: a casual emoji response can threaten serious economic consequences, whether it be future commodity profits, business expenses, or whatever.
Mooning at Work
At the opposite end of the spectrum from non-threatening emojis are more dramatic forms of non-verbal communication with legal consequences. In Selch v. Columbia Management, 977 N.E.2d 287 (App. Ct. Ill. 2012), a fellow lost his job and his potential benefits after he mooned two of his company’s executives. In the employee’s subsequent lawsuit, an Illinois state court ruled that the mooning was “insubordinate, disruptive, and abusive” behavior, which amounted to cause for the firing him and for imposing forfeiture of termination benefits.
The Gestures Resulting in a Traffic Accident
And then there are other unwelcome legal consequences from gestures not obviously fraught with hostility. In Pittman v. Ball, 181 A.D.3d 842 (N.Y. App. Div. 2020), a school bus driver waved at another driver, attempting to communicate to the other driver that it was safe for the driver to turn in front of the bus. The driver, trusting the wave, turned immediately into the path of oncoming traffic, got hit, and sued. A New York state court ruled that the bus driver had a duty to ensure that the hand signal was reasonable, and found the bus driver liable.
In a contrasting case, Dyakiw v. Salian, 216 A.D.3d 619 (N.Y. App. Div. 2023),another hand gesture caused a traffic accident. In this case, Mrnacaj stopped his car to let Salian make a turn, then waved him on. Salian did turn and consequently crashed into an oncoming car while making the turn. Salian sued and the court ruled in favor of Mrnacaj, concluding that he should not be responsible for Salian’s lack of common sense to look both ways.
Courtroom Gestures: Effective or Problematic?
When it comes to non-verbal expression, the courtroom is a tricky place. On one hand, facial expressions and subtle gestures can effectively intimidate or distract opposing counsel: these are gestures that are usually not recorded on the official transcript or spied by the judge or jury. By contrast, the courtroom is decidedly tricky when making more obvious non-verbal protests. Two contempt-of-court examples bring home this point:
- In McCormick v. U.S., a man became upset after witnessing a sentencing in the District of Columbia District Court. He stormed through the courtroom doors, angrily spoke with friends, turned to the bench, pointed at the judge, and stormed out of the courtroom. The court wasn’t countenancing this behavior, and the man got 90 days in jail for his finger-pointing rage. (N.B. An appellate court reversed the district court’s order on other grounds, without discussing whether nonverbal conduct could ever support a criminal contempt edict. 635 A.2d 347 (D.C. Cir)).
- Even more dramatic was the criminal defendant in U.S. v. Perry, 116 f.3d 952 (1st Cir. 1997). Two hours into the prosecutor’s closing argument, Mr. Perry’s counsel handed the judge a note saying that Mr. Perry needed to use the restroom. After hearing from the prosecutor that the prosecutor would finish his closing in five-to-ten minutes, the judge told Perry that he would have to “hold it for a bit.” Undaunted, Perry urinated on the courtroom floor in response. Finding this to be deliberate and willful defiance, the court imposed a steep criminal contempt sentence: 90 days in solitary confinement.
Finger Guns = Disorderly Conduct?
In Commonwealth v. Kirchner, 2019 WL 4027512 (Super. Ct. Pa. 2019), a man was convicted of disorderly conduct for pretending to shoot his neighbor with a finger gun. The court concluded that the behavior merited criminal punishment. Stating the defendant’s shooting pantomime created a “hazardous condition,” the court ruled that Kirshner risked “an altercation. . . or other public disturbance.” Does the court’s ruling sound extreme? The trigger gesture could have been easily interpreted as playful. But given the circumstances, a reasonable person could interpret it as threatening. Why? Turns out that a court had previously entered a “no-contact” order binding both parties. Such orders are generally inspired by the potential for violence. The circumstances of the parties’ ongoing relationship therefore explain the result in the case.
Lewd and Offensive… and an interesting bottom line
And finally is State v. Charles, 477 P.3d 492 (Ct. App. Utah 2020), which presents arguably bizarre conduct triggering harsh legal consequences. In an apparent attempt to harass a woman, Charles approached the woman’s car as she pulled into a driveway to drop off her daughter’s friend. After the woman’s daughter and the friend left the car to enter the house, Charles approached the car, created a “V” sign over his mouth and stuck out his tongue in apparent simulation of cunnilingus. Charles put his other hand on his crotch at the same time. Unless Charles had an intimate relationship with the woman, the gesture easily falls into the category of harassing behavior. Not only did Charles lack an intimate relationship with the woman, but he even continued the gestures after the woman’s daughter came back into the car. Under these circumstances, Charles was convicted of violating a Utah statute criminalizing lewdness. While perhaps unremarkable that a court could find the gesture lewd, the case prompted an interesting debate: were Charles’s gestures analogous to a constitutionally protected “middle finger” pointed at policeman?
The case went to the Utah Supreme Court, but we never got an answer to the constitutional question. Turns out that no answer to the middle-finger analogy emerged because the court discovered that the trial transcript contained no positive evidence proving that the woman’s daughter was underage. Courts do this type of sidestep regularly: ducking the most important question presented in a dispute upon finding a procedural glitch that disposes of the case. Using this technique, courts can avoid any pushback about how they resolve potentially controversial legal questions, and reach dispositive outcomes for the parties without providing meaningful guidance.
Yet the interplay of the arguments in the Charles case brings out an important twist on problematic gestures. Caselaw does indeed establish that flashing the middle finger at an officer of the law amounts to expressive conduct protected by the First Amendment of the United States Constitution. See, e.g., Cruise-Gulyas v. Minus, 918 F.3d 494 (6th Cir. 2019). This could be a handy precedent if one encounters trouble when acting out with a gesture.
In the world of non-verbal communication, it turns out the law is watching—and often not laughing. Yet, in some cases, freedom of expression principles could save the day.