Johnny Depp v. Amber Heard Case Explained
Recently, the defamation suit kicked off between Johnny Depp and his ex-wife Amber Heard following a long and conflicting string of events.[1] In opening statements and witness testimony so far, opposing stories already sounded online came into the courtroom: each argues that the other party was the perpetrator of domestic violence and have presented massive amounts of conflicting evidence.[2]So how did we get here?
With the filing for divorce from Depp in 2017, Heard also filed for a restraining order and accused Depp of violently attacking her.[3] Prior to the trial for that restraining order, Heard and Depp released a joint statement saying they had put their dispute to rest and there was never any intent of physical or emotional harm.[4]
Regardless of that statement, The Sun tabloid posted an article on their site which referred to Depp as a “wife beater.”[5] Depp sued the publisher of The Sun for libel in English court for the comment, but Depp would lose that case after Heard testified that Depp abused her fourteen separate times.[6] There are substantial differences between English and U.S. defamation law, as English law does not require a showing of actual malice, and a likely true statement (Heard’s statements of testimony corroborating the comment) is an absolute defense in England.[7]
The current U.S. lawsuit began in 2018 following an op-ed written by Heard in the Washington Post.[8] While the op-ed never mentioned Depp by name, Heard stated that once she came out about experiencing domestic abuse she was harassed and was told by she would never work again as an actress.[9] There was a wave of public backlash at Depp after the release of the op-ed online which would eventually lead to Depp being forced to resign from the recent Fantastic Beasts film.[10] Depp is suing in Virginia state court for fifty million dollars in damages due to losing out on film deals and the massive hit to his reputation following the article.[11]
Why was the case even brought in Virginia? The reasoning is not entirely clear, but Depp’s team fought for the case to stay in Virginia, and successfully argued to keep it there.[12] The court allowed for Virginia to be venue for the case because the state is home to two Washington Post offices and the paper is widely published through servers located in the county (even though the Washington Post is not a party to the suit), but that does not explain why they wanted Virginia so badly.[13] It is likely that the main reason for the suit being brought in Virginia is that, when the complaint was filed, Virginia did not have an anti-SLAPP law, and even after one was passed in 2020, Virginia’s anti-SLAPP law is still not as broad as California’s, where both Depp and Heard reside, and which would have been Heard’s choice of venue.[14]
Anti-SLAPP (which is short for anti- strategic lawsuits against public participation) laws are created to prevent people from using the court system and threats of lawsuits to intimidate people who are exercising their right to free speech.[15] These statutes can be used by news organizations and journalists to protect themselves from groundless defamation cases brought by the subject of an investigative story.[16] The individual being sued can make a motion to strike the case because it involves speech on a matter of public concern and the plaintiff has the burden of showing a probability that they will prevail in the suit.[17] If the plaintiff cannot meet that burden, then the suit is dismissed through anti-SLAPP proceedings and, in some states, defendants then can collect attorney’s fees.[18]
Virginia’s anti-SLAPP law, passed in 2020, creates immunity from civil liability for individuals facing claims of defamation based solely on statements that are made to third parties regarding “matters of public concern that would be protected under the First Amendment.”[19] Unlike other states, Virginia fails to identify any special procedures allowing a defendant to invoke these protections at an early stage of the proceedings. So, in Virginia, Heard will only be allowed to raise the argument of anti-SLAPP immunity with the jury.
California, on the other hand, has a very strong anti-SLAPP law. To challenge a SLAPP suit, defendants must show they are being sued for “any act… in furtherance of the person’s right of petition or free speech.”[20] A defendant can file a motion to strike the complaint which the court must hear within 30 days.[21] The California anti-SLAPP law also gives a successful defendant who can show that the plaintiff filed the lawsuit to harass or silence the speaker, the ability to file a so-called “SLAPPback” lawsuit against his or her opponent.[22]
What does Depp have to prove? In Virginia, the elements of a defamation claim are as follows: a (1) publication of (2) an actionable statement with (3) the requisite intent.[23]
In order to be “actionable,” the statement must be both false and defamatory.[24] To be defamatory, a statement must be “more than merely unpleasant or offensive;” it must “make the plaintiff appear odious, infamous, or ridiculous.”[25] Additionally, some statements are defamation per se where the statements are so bad that they are always considered defamation.[26] Virginia recognizes four broad categories of per se defamatory statements, including statements that “impute the commission of a crime involving moral turpitude.”[27] Here, the statements by Heard are being viewed as clearly defamatory because domestic violence is a criminal offense that is highly repugnant.[28]
As Depp is obviously a general-purpose public figure, in order to win this suit Depp will need to prove that Heard acted with the intent of actual malice – or knowing that the statements she was making were false or she was recklessly disregarding their falsity.[29] Under Virginia’s standards, it also not likely that the fact Depp was not explicitly referred to or that the statements occurred in an opinion piece will have any impact on the decision; Depp was quite clearly identified by implication, the general public knew of The Sun libel case and had heard of the divorce and legal proceedings in the years preceding the article.[30]
Will Depp be able to prove actual malice? It depends on the evidence and how convinced the jury will be by the conflicting testimony that will be presented over the course of the trial. If the allegations against him by Heard are true, that is an absolute defense to defamation. If the statements are proven false, then Depp has a chance of winning the suit with the jury.
Footnotes
