Written by Jeremy W. Peters
Hours after a Virginia jury awarded actor Johnny Depp more than $10 million in his defamation lawsuit against Amber Heard, his former wife, The Washington Post appended a lengthy editor’s note to the essay where the sordid dispute began.
It stated matter of factly that Depp had successfully sued Heard over the essay, which was published under her byline in the newspaper’s opinion section in December 2018. The note then carefully detailed how three claims that Heard made had resulted in a jury finding her liable.
Depp is hardly the first powerful man accused of sexual abuse who has turned the tables on his accuser by filing a multimillion-dollar defamation suit. But he is one of the most prominent so far to win and to demonstrate that defamation law can be a powerful tool if a jury decides there are legitimate reasons to doubt a woman’s story.
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PremiumThe result of the case — a rare outcome for a celebrity because US law requires public figures like Depp to clear an extremely high legal bar in proving defamation — highlighted the fraught decisions women face when coming forward with abuse claims.
It also 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. By sharing those stories, both the women and the press assume the considerable risk that comes with antagonizing the rich, powerful and litigious.
For the Post, which was not part of Depp’s lawsuit, even appending the editor’s note carried some legal risk. Because the jury found that 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 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.
Setting aside the furious back-and-forth over whether Heard was a credible accuser — Depp’s lawyers and his fans insisted she was not — defamation law is intended to make lawsuits by well-known people like him difficult to win. First Amendment experts said Depp was never in a strong legal position considering that public figures have to prove that the person they accuse of defamation acted with “actual malice” or that the person essentially knew he or she was telling a lie. And yet he still won, sending up a warning flare to anyone willing to publish such accusations: The First Amendment may be on your side, but a jury may find otherwise.
“The fact that actual malice is a such a high bar and that he was able to overcome that is kind of shocking,” said Lynn Greenky, a professor who teaches First Amendment issues at Syracuse University.
In the trial, Heard’s lawyers argued that her essay published in The Post was protected under the First Amendment. She described herself in the essay as a public face for abused women who had “felt the full force of our culture’s wrath for women who speak out.” Although she did not mention Depp by name, she implied that he had been her abuser.
Depp’s argument was that the case had nothing to do with the First Amendment’s broad protections for speech. Instead, he insisted, it was about the credibility of the accuser.
“The First Amendment doesn’t protect lies that hurt and defame people,” Depp’s lawyer told the jury as the trial came to a close.
Several lawyers said they were surprised by the outcome, especially because Depp lost a similar case in Britain, which has much lower legal standards for public figures who sue for defamation. A key difference, said George Freeman, executive director of the Media Law Resource Center and a former lawyer for The New York Times, was that a judge decided the matter in Britain whereas a jury sided with Depp in the United States.
“A jury decides what a jury decides, and there’s often no further explanation,” Freeman said.
The outcome was all the more curious, Freeman added, because the jury also sided with Heard on one count in which she claimed that Depp’s lawyer had defamed her by blaming her for damaging the couple’s penthouse.
“When one side is false, then the other is true,” Freeman said. “It seems kind of inconsistent to give awards to both.”
One implication of the split jury decision is that the law, because of its complexities, may not do what people expect it to do: be an arbiter for the kinds of he said/she said disputes that arise from allegations like sexual assault.
In other similar defamation cases, the publisher has also been part of the lawsuit. First Amendment experts who are concerned about the use of defamation suits in an increasingly polarized climate — especially against news organizations — said the fact that The Post was not named as a party in Depp’s case probably made his victory easier.
Had The Post been sued, the trial would probably have been more focused on the ways that defamation laws can be abused, said RonNell Andersen Jones, a law professor at the University of Utah.
“The newspaper isn’t a party to the suit, and so doesn’t get to frame for the jury the serious threat to public discourse that can result if defamation suits are too easily threatened or won,” Andersen Jones said. “But it still has to live with the outcome of a case in ways that may impact its ability to participate in that discourse.”
A spokesperson for The Post declined to comment on its appended editor’s note. But as Heard plans to appeal, her essay will remain on the newspaper’s website, an indication that Post editors believe there is no legal reason to remove it.
