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Depp/Heard Verdict a Loss for Violence Survivors—and a Free Press Ari Paul ([link removed])


Washington Post: I spoke up against sexual violence — and faced our culture’s wrath. That has to change.

Amber Heard found out that speaking out against sexual violence (Washington Post, 12/18/18 ([link removed]) ) can cost you $8 million.

The high-profile Johnny Depp/Amber Heard defamation trial ended with what seemed like a split decision: Both were found to have defamed each other. But with the jury awarding millions more in damages to Depp than to Heard, the outcome suggests that she defamed him more. The chilling effect of the ruling on survivors of domestic violence who want to speak out against their abusers is clear ([link removed]) , but the damage from the case extends to all issues that depend on unfettered discussion in a free press.

Entertainment media coverage turned the legal battle of the two celebrities into a “media circus” (CBC, 4/24/22 ([link removed]) ; HuffPost, 5/17/22 ([link removed]) ), a voyeuristic and sadistic form of entertainment that harkened back to the days of the Jerry Springer Show. Progressive and centrist news outlets seemed reluctant to dig into the details of the case, perhaps assuming that the trial was a frivolous celebrity story. "Usually reliable outlets tended to steer around the facts," an analysis on public radio's WNYC (6/2/22 ([link removed]) ) noted. Yet the substance of the allegations was gravely serious: Heard wrote a Washington Post op-ed (12/18/18
([link removed]) ), in which Depp’s name does not appear, where she described herself as a “public figure representing domestic abuse.”

The verdict has been loudly condemned, especially by feminists who saw the outcome as a successful retaliation by a powerful man against a woman who dared to call him out publicly (Guardian, 6/2/22 ([link removed]) ). Us Weekly (6/4/22 ([link removed]) ) reports that Heard plans to appeal.


** Blow to a free press
------------------------------------------------------------

Heard’s op-ed didn’t mention Depp, but it outlined an agenda for fighting gender-based abuse as it painted a picture of her own personal hell—not just as an intimate partner, but as a participant in a public conversation. “I write this as a woman who had to change my phone number weekly because I was getting death threats,” she wrote, noting that for months, “I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars.”

The op-ed was written with assistance from the American Civil Liberties Union, the trial revealed (Guardian, 4/28/22 ([link removed]) ).
Daily Beast: Why Johnny Depp’s Decision to Sue Amber Heard in Virginia Paid Off

Daily Beast (6/1/22 ([link removed]) ): "Depp and his attorneys chose to file their suit in Virginia...because of the state’s weak protections against frivolous defamation suits."

Numerous outlets speculated that Depp had pushed for a Virginia venue because its laws are laxer when it comes to so-called strategic lawsuits against public participation, or SLAPPs (Bloomberg Law, 5/16/22 ([link removed]) ; WTTG, 5/30/22 ([link removed]) ). The Daily Beast (6/1/22 ([link removed]) ) said, “Virginia’s anti-SLAPP laws are far weaker than California’s, which allow those accused of defamation to file a motion to dismiss the case before it even gets to trial.”

Given the outcome of the trial, how likely is it that the Washington Post, and many other outlets as well, will think twice about commissioning a public face to speak about serious matters of public concern that are rooted in personal experience? The fact that Depp had earlier lost a libel case over the Sun calling him a "wifebeater" in Britain, whose legal system has traditionally given less protection to journalists in defamation cases, is a bad sign for the ability of the First Amendment to protect the press from complaints about damaged reputations.

The Depp/Heard trial did not directly challenge the central legal protection for criticism of the powerful, the 1964 Supreme Court ruling Sullivan v. New York Times, which requires that public figures suing for libel prove "actual malice," that is, that the statement at issue was made "with knowledge that it was false or with reckless disregard of whether it was false or not." As Fabio Bertoni pointed out in the New Yorker (6/3/22 ([link removed]) ):

Once the jury determined that the statements were false—that is, they believed Heard was lying about the abuse—the step to finding that she knew they were false when she made them was virtually automatic.

But that doesn't mean that the spectacle of a well-known celebrity taking contested claims to court and winning legal vindication won't encourage other public figures to follow suit. Kyle Rittenhouse, who was acquitted of murder charges ([link removed]) after shooting and killing protesters during the 2020 Black Lives Matter uprising in Kenosha, Wisconsin, has already indicated that the Heard verdict has inspired him to pursue defamation suits against outlets that covered his case (Vice,6/3/22 ([link removed]) ). “Johnny Depp trial is just fueling me,” he tweeted. “You can fight back against the lies in the media, and you should.”

Former Alaska Gov. Sarah Palin already brought suit against the New York Times for a retracted connection it drew between a Palin ad and a mass shooting (FAIR.org, 2/25/22 ([link removed]) ). She lost, but her defeat only increased the grumbling by right-wing judicial activists that the “actual malice” standard ought to be tossed out altogether (FAIR.org, 3/26/21 ([link removed]) ). Undoing that standard would make it much easier for public figures like Depp—or powerful politicians and CEOs—to sue news outlets for defamation.

In the wake of the Supreme Court striking down Roe v. Wade, other longstanding precedents look less permanent than they once did. Justice Clarence Thomas has made clear his enthusiasm for eliminating the Sullivan standard—most recently in his protest against the Court's declining to hear the case of a homophobic ministry that tried to sue over being called a "hate group" by the Southern Poverty Law Center. Following the "originalist" logic that brought down Roe, Thomas wondered whether "the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard" (Washington Post, 6/27/22 ([link removed]) ).


** Legal hammers
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NYT: Depp Trial Exposes Risks to Media in Airing #MeToo Accusations

New York Times (6/3/22 ([link removed]) ): When media report women's #MeToo stories, "both the women and the press assume the considerable risk that comes with antagonizing the rich, powerful and litigious."

The rich and powerful have been able to use legal hammers to attack the press in other ways. Billionaire venture capitalist Peter Thiel famously funded the lawsuit that ultimately took down Gawker (Guardian, 6/10/16 ([link removed]) ). As Forbes (6/21/16 ([link removed]) ) said at the time:

Critics have argued that Thiel's money gives other billionaires a blueprint for how to silence media outlets they dislike. Thiel's approach has also added a new twist to what's known as "alternate litigation financing.”

As the New York Times (6/3/22 ([link removed]) ) discussed, these kinds of lawsuits have become worrisome for news outlets during the #MeToo movement, as they “showed the delicate considerations for publishers—an engine of the #MeToo movement since it erupted more than four years ago—when they air those claims.” The Times' Jeremy Peters noted, “Both the women and the press assume the considerable risk that comes with antagonizing the rich, powerful and litigious.” Noting that the Washington Post had added a note ([link removed]) to the Heard op-ed explaining that parts of it had been found to be defamatory, Peters explained:

For the Post, which was not part of Mr. Depp’s lawsuit, even appending the editor’s note carried some legal risk. Because the jury found that Ms. Heard’s essay was defamatory, updating it with new information could be considered tantamount to republishing it and, therefore, grounds for a lawsuit. When Rolling Stone was found liable for publishing the false account of a woman who said she had been raped at a University of Virginia fraternity, a jury found ([link removed]) that the addition of a correction could be used to find the magazine liable for defamation—even though it had no liability for the initial publication itself.

When then-President Donald Trump said he wanted to reopen libel laws in order to sue news organizations (Politico, 2/26/16 ([link removed]) ), he was likely blowing hot air, but in reality, the change in legal attitudes toward defamation and the media is happening before our eyes. Writers and potential writers have watched the Heard verdict closely, with the biggest takeaway being that one fiery op-ed implicating a public figure could make for legal trouble—all the public figure would have to do is find the right venue, the right jury and the right lawyer to make the right charismatic case to that judge and jury. That’s a kind of legal cancel culture we should worry about.


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