How A Post-9/11 Law Can Get You Arrested For Your Emoji Choices

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.)

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 cited in the criminal complaint that led to Aristy’s arrest appear to include verbal or text-based threats to police officers. The teen’s references to law enforcement officers appear to be limited to 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?

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 probably 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,” Elwood said. “Though I guess someone could argued it was intended as a threatening smiley face.”

Being prosecuted and arrested are two very different things. Another expert who specializes on issues of freedom of speech, New York University Law Professor Burt Neuborne, told BuzzFeed News that while the “intent” clause may help a defendant in the courtroom, it doesn’t protect against arrest by police.

“The threshold to make an arrest is not the same as the one for a conviction,” Neuborne said. “This gives the police very significant power to harass people.”

Since the bar to obtain an arrest warrant on charges of making terroristic threats is only probable cause of the author’s intent, the NYPD could potentially arrest anyone who makes anti-cop statements, even if they come in the form of emojis.

“It is conceivable that a police department that is traumatized by the events of last year is going to overreact,” Neuborne said, referring to the assassination of two police officers in December in Brooklyn. “But if they keep making these arrests and they can’t get convictions, they are going to open themselves to civil liability. People are going to sue them for making false arrests.”

Aristy’s case — first reported by DNAinfo — is part of a renewed wave of arrests made in connection to alleged threats against police. Ever since the December’s lone gunman made good on an Instagram threat to kill two cops, the NYPD has opened at least 160 such investigations and arrested 38 people, Police Commissioner Bill Bratton said at a press conference on Monday. He did not say what portion of those threats were made online.

(The NYPD did not respond to questions regarding the criteria used to decide when to make arrests based on online threats.)

At least three of those arrested for threatening police have been charged with “making a terroristic threat.” It was unclear whether any of those cases involved emojis, but one case involved what police described as “a cartoon” of a man pointing a gun to a police officer.

Thompson’s office, which issued the warrant for the charges of terrorism that led to Aristy’s arrest, declined to answer questions on the criteria used to determine whether there is probable cause that a statement was intended as a threat, and on whether it was concerned about potential false arrests.

Instead, Thompson’s office issued a statement saying it “takes all threats to our law enforcement seriously” and that “cases are evaluated as they come in and decisions are made on a case-by-case basis.”

Some activists are worried that the current interpretation of the statute could potentially have a “chilling effect” on free speech on the internet.

“Emojis are a form of communication and are protected by the First Amendment,” Donna Lieberman, the executive director of the New York Civil Liberties Union, told BuzzFeed News. “Like words, they can provide the basis for a police investigation, but they cannot by themselves be a target for law enforcement. Our application of the principles of the First Amendment has to evolve as technology and culture evolve.”

Pratt, Aristy’s attorney, echoed the concern.

“What happens if you can’t say ‘I hate cops’ without worrying that you might get arrested?” he said.

It could be that the police do not see emojis as an issue of free speech, but rather as a matter of expediency. A former NYPD officer with six years of experience told BuzzFeed News that the cops probably “knew [Aristy] was a hump” based on his prior history — the teen has been arrested 12 times and pleaded guilty to robbery and assault in late 2014, when he was sentenced to five months of time served — and “probably used the message to get the ground” for an arrest.

The former officer added that many laypeople don’t understand the dangers faced by police officers, who are told over and over again that they face “ambushes and other attacks.”

“Getting arrested for emojis is dumb,” the former officer said. “But people don’t ever take seriously the danger that the cops face. If I let some yelling slide, then what if a young cop is walking down the street and kids decide to throw bottles because they weren’t pressed earlier?”

Professor Neuborne seemed to concur.

“There are plenty good cops out there, and you don’t want their wives worried about whether they are going to come home,” he said. “Simply because something is legal, doesn’t mean that it’s right. And the fact that you want to create a high standard to protect people from being arrested, it doesn’t mean that people should do this kind of things.

“I used to represent flag desecrators, and I won a lot of cases for them. But I also used to yell at them for burning the flags.”

update

This post has been updated to add the NYPD’s statement on the number of people arrested for making threats against police.

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