It’s impossible to be online these days and not see a joke, meme, or article related to the Johnny Depp and Amber Heard defamation case that is currently being heard in Virginia. The Depp/Heard defamation case is live streaming on several media outlet websites, and everyone has at least caught a story about it here or there. Johnny Depp is suing Amber Heard for $50 million in response to an opinion article she wrote for The Washington Post in 2018 about her alleged experiences with sexual assault.
Heard never mentioned Depp by name but referred to herself as “a public figure representing domestic abuse.” In May 2020, Heard filed a request for a temporary restraining order against Depp. Depp took exception to the article and sued Heard for defamation in Fairfax County, Virginia, where The Washington Post is published and where it has its online server. Heard is counter suing Depp for $100 million. Depp is only suing Heard and not The Washington Post.
What Is Defamation?
People tend to mix up the two forms of defamation and refer to all defamatory statements as defamation, but there are specific differences. Defamation is the act of damaging the good reputation of someone by making a false statement. Defamation is broken down into two distinct categories, libel, and slander. Different jurisdictions have different laws in place that handle the two forms of defamation.
Slander is defamation that is spoken. For instance, in order for a party to be guilty of slander, they would have to defame the character of a person by using their speech. In other words (no pun intended), they would have to be running around the community accusing the wronged party of illegal activity. It would have to reach beyond the level of simply “trash talking” the party or giving a negative personal opinion about them. The defamatory statement would have to influence other community members in a decision on whether or not they wanted to socially or professionally associate with the wronged party.
Libel is defamation that is communicated to the third party using the written word, pictures, and even gestures in some instances. In order to prove that someone has committed libel, you must show that the false statement caused harm and that they did not research the truthfulness of the statement before they made it. When the wronged party is a public official or a celebrity (like Depp), the wronged party must show that the libelous statement was made with an intent to do harm (malice) or a reckless disregard for the truth.
In the Depp Heard case, the opinion article that Heard wrote contained statements that alleged she was the victim of at least one sexual assault and that she was a survivor of domestic violence, all crimes.
But she never used the name, Johnny Depp. Heard never wrote in her article that Johnny Depp had committed those crimes that she stated she was a victim of. Naturally, that begs the question, how does Depp have a case for defamation when he was never mentioned by name, and no specific statement was made by Heard in her article that Depp was a domestic abuser? A lot of people believe that, as long as a party is not named when the allegedly libelous statement is made that there is no case for defamation. There are some jurisdictions that require the person who was harmed by the false statement to be specifically named. But there are also jurisdictions that recognize that providing enough detail so that the false statement can be identified and connected to that person by the recipient of the communication is enough for a defamation claim.
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The Commonwealth of Virginia recognizes that a defamation plaintiff does not need to be named explicitly in the defamatory statement. In fact, Virginia is satisfied when the defamation plaintiff shows that the published statement was intended to refer to the plaintiff and would so be understood by persons reading the article or hearing the article, in this case, to refer to Depp. The fact that Virginia does recognize defamation by implication or innuendo has put Heard in a challenging position legally.
Her relationship with Depp was widely publicized, and there are few people who didn’t know about the allegedly abusive relationship and its end. However, the ultimate defense against an accusation of defamation is that the statement or statements made about the defamation plaintiff were true. At this point in the trial, Heard’s team is focusing on sharing evidence and testimony supporting their assertion that Heard was the victim of sexual violence and abusive behavior. If Depp cannot show that Heard’s statements are not factual, he has no defamation case.
Another critical aspect of a defamation case is for the defamation plaintiff to show that they were harmed by the untruthful statement. In the Depp Heard defamation case, Depp has already testified and brought his witnesses to the stand who have provided testimony about Depp losing work in Hollywood as a result of Heard’s article in The Washington Post. Naturally, because Depp is a well-known and highly paid actor, the financial repercussions of being passed up for roles are significant, strengthening Depp’s claim of damages against Heard. A notable example is that Depp was removed as a primary character for the well-known and extremely lucrative role of Grindelwald in the Fantastic Beasts movies based on the Harry Potter books and movies. Originally there were five movies planned, and Depp appeared in the first three movies but has since been replaced by another actor.
A Breakdown of the Depp Heard Defamation Case
There is a reason the case is being heard in Virginia. Typically, you see legal cases being filed in the party’s state of residence, which would typically be California in this instance. In the Depp Heard case, however, The Washington Post, the newspaper that ran Heard’s opinion article, is based in Fairfax County, Virginia. The Washington Post has its publishing service and online news server in Virginia. Since the newspaper is based in Virginia, a venue in Fairfax County is proper in this case.
Virginia also recognizes anti-SLAPP law, which could be beneficial in Heard’s defamation defense. SLAPP stands for strategic lawsuit against public participation. A SLAPP suit is a civil claim filed against an individual or an organization arising out of that party’s speech or communication to the government about an issue of public concern. The legal crux of the SLAPP suit is the petition clause of the First Amendment. Prior to going to trial, the Virginia court ruled that Heard could use the anti-SLAPP law available in Virginia in her defense against Depp. Heard can assert that the anti-SLAPP law grants her immunity in this particular set of circumstances. The reasoning of the court in allowing Heard to use the anti-SLAPP law in her defenses is that the article Heard wrote was about domestic violence, and as such, the topic was of significant importance to the public. In other words, an issue of public concern. The jury will likely be provided with specific information and instructions in relation to the anti-SLAPP law in Virginia and should take it into consideration during their deliberations.
As the plaintiff, in this case, Depp got the opportunity to call his witnesses first since it is his case. When conducting a trial, the plaintiff always goes first. On a non-legal note, the fact that Depp got his side of the story out there early on has created a great deal of backlash towards Heard. You could even say that by going first, Depp and his legal team controlled the narrative early on and created a hole that Heard and her legal team must now dig their way out of. Every jury trial in the United States has its themes and narrative; the attorney presents a story for the jury to hear and pass judgment on. Use of the word “story” is not meant to imply that what the plaintiff or defendant is saying is untrue, just how the facts and evidence are packaged for the listeners. Opening and closing statements, the order in which witnesses and evidence are presented, and cross-examination are all strategically designed by each side for the best possible outcome.
The intense amount of coverage that this case is receiving has garnered a great deal of public attention. Depp getting on the stand and testifying and then bringing many of his witnesses to the stand first have created the current atmosphere that Heard must be guilty. There are an extensive number of memes and heavily edited videos from the trial testimony to date circulating online. Many of the memes and videos paint Heard as the guilty party, make fun of her testimony and assume that she is dishonest. There have even been instances of Depp supporters hissing and booing Heard as she travelled between her car and the courthouse.
Such an intense and aggressive reaction by the public is definitely premature before all evidence has been presented to the court. It is standard procedure for each side in a litigation to present the facts and evidence that best support their claims, but nothing is decided until its decision, and it is up to the jury to consider all of the evidence presented and make their decision. The case is currently expected to go to the jury on May 27. An important thing to keep in mind is that this case, whatever its outcome, could and might likely be appealed. If the case is appealed, the final outcome will be further delayed.
The media coverage of the trial has been significant, with multiple platforms live streaming testimony from both sides. This is unusual for a defamation case but not unbelievable considering the high visibility of both parties. Depp and Heard are well-known actors, and the public tends to have a high level of interest in the activities of celebrities. Furthermore, other celebrities have been attached to the case and have even provided testimony for each side. People have traveled to the courthouse in Fairfax, Virginia, and have been camping outside, hoping to catch a glimpse of the parties. People have made signs taking sides with Depp or Heard. Unfortunately, a great deal of the in-person supporters have been very vocal about supporting Depp and verbally abusing Heard, booing and heckling the actress when her car drives past the crowd.
Conclusion
Ultimately, the jury and not public opinion will decide the case. The case will be handed to the jury on May 27, and then the jury will begin its deliberation. The length of deliberation is never something that can be accurately evaluated. In a jury trial, all it takes is one jury member to be stuck in their opinion to slow down or even stop deliberations. Heard’s team has one more week to present evidence and testimony, and it could be a week that entirely changes the course of the trial.
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