Emoticon DefenseWhen is a death threat legally a death threat and when is it just a joke?

A group of girls in Indiana accused of cyberbullying and threatening to kill a classmate on Facebook are using the “emoticon defense” in an effort to escape punishment.

The American Civil Liberties Union has a federal lawsuit on behalf of the eighth-graders, saying that the Griffith Public Schools district in northern Indiana violated the civil rights of the students when they were expelled because of a personal off-campus conversation that their attorneys claim shouldn’t have been taken so seriously.

The lawsuit claims that any reasonable person would have realized the 14-year-olds’ remarks were made in jest, partly due to their use of emoticons and online shorthand like “LOL” and “ROFLMAO.”

“The legal analysis asks whether a reasonable person viewing the conversation would conclude that the girls were about to inflict imminent harm. I think the use of emoticons and other forms of Internet-speak are simply one factor demonstrating that that was not the case,” said ACLU attorney Gavin Rose via email.

Regina Webb, the mom of one of the students who was the target of the girls’ harassing comments, said she didn’t find the Facebook thread funny at all. She added that her 14-year-old daughter, who is Facebook friends with the girls, was afraid to go to school for two days after the thread was posted.

Justin Patchin, a criminal justice professor at the University of Wisconsin-Eau Claire and co-director of the Cyberbullying Research Center, says using cute emoticons doesn’t get you off the hook.

“We still see examples of students using emoticons like that even in actual cyberbullying cases,” Patchin said. “My position is it doesn’t matter if they did use those emoticons…It doesn’t matter if the intent was to joke around…If we look at the content, would we be threatened by it?”

Others would seem to agree.

“Cyberbullying is the emotional harm, not that they’re going to kill you, but that they’re talking about it even in a joking way,” said Parry Aftab, executive director of Wiredsafety.org.

Patchin agreed. “It doesn’t necessarily take an actual threat for the school to get involved in disciplining the students,” he said. “If the target in this case didn’t feel safe to be at school, then the school has the authority to take action,” he added.

What do you think?  Does the “emoticon defense” hold up, or is a threat a threat, no matter how you slice it?