When Amber Heard published an op-ed in the Washington Post referring to herself as “a public figure representing domestic abuse,” Johnny Depp, her ex-husband, sued her for defamation. Not the Post.
That distinction is possibly one reason why Depp won his lawsuit, legal experts say.
Winning a defamation lawsuit in the United States is difficult, thanks to the “actual malice” standard established by the 1964 Supreme Court ruling in New York Times Co. v. Sullivan. To win a defamation case against a public figure, a plaintiff must prove that the defendant knowingly published a false statement or that they published a false statement with “reckless disregard” of the truth.
Depp had previously lost a libel suit brought in England against the News Group Newspapers, when a judge found that a 2018 article by The Sun that called Depp a “wife beater” was not defamatory. Though it is generally easier to win a defamation lawsuit in England than in the U.S., the judge in that case found 12 instances out of 14 in which Depp had allegedly assaulted Heard to be “substantially true.”
Yet on June 1, a jury of five men and two women found that Heard had defamed Depp on three counts based on her op-ed in The Washington Post, awarding Depp $10.35 million in damages. (They also found that Depp’s former lawyer Adam Waldman had defamed Heard when he called Heard’s allegations of abuse a “hoax” and awarded her $2 million in damages.)
“My initial reaction was, ‘This is why you don’t want to be in front of a jury litigating a defamation case many times,’” said Roy Gutterman, director of the Newhouse School’s Tully Center for Free Speech at Syracuse University. “I disagree with the verdict in many ways because I’m not sure it follows the letter of defamation law entirely.”
Gutterman, who followed the trial closely and is an expert in communications law and the First Amendment, said he wasn’t sure the evidence presented had established falsity or that Depp had suffered any reputational damage linked directly to the op-ed. Other legal experts also said they were surprised the jury found that Heard had met the actual malice standard.
“Generally speaking, most public figure plaintiffs lose when they are suing for defamation because it is almost impossible to prove or to convince in clarity the presence of actual malice,” said Kyu Ho Youm, a media law expert who serves as the Jonathan Marshall First Amendment Chair at the University of Oregon School of Journalism and Communication.
Several experts attributed Depp’s win to the fact that the trial was decided by a jury, not a judge. Juries can be “a little less dispassionate,” said media attorney Leslie Machado, and may be swayed by what they see in court, whereas a judge may focus more on the facts and the law. Though jurors were instructed not to read about the case, they were not sequestered, and some experts have pointed out that jurors may have inadvertently been exposed to one of the countless memes about the trial on social media.
Washington and Lee University journalism professor Toni Locy, who has spent 25 years covering courts, said that it seemed to her that the jury just liked Depp better: “(Heard) wound up with the short end of the stick there because of the sexism in our society, and he got the benefit of the doubt.”
If The Washington Post had been the defendant, the trial may have ended differently, experts said. The lawsuit would have come across as an attack on the freedom of the press — a freedom enshrined in the First Amendment — and other media outlets likely would have come to the Post’s defense. It would also be more difficult to convince a jury that a media company had acted recklessly since reputable news organizations do not knowingly print falsehoods.
“Strategically, it was pretty smart of Depp not to sue The Washington Post,” Gutterman said. “If The Washington Post was the defendant, this would have been a First Amendment, free press issue, as opposed to this private domestic dispute between two warring former spouses.”
Because the lawsuit was between two private individuals, there’s not much media organizations need to be concerned about, said Joel Kaplan, who teaches media law and is the associate dean of Newhouse School at Syracuse University’s office of graduate programs. At most, the verdict may indicate that libel has now become the “weapon of choice” for public figures. Kaplan said it remains difficult to prove that media publications have demonstrated actual malice pointing to the recent verdict in Sarah Palin’s defamation lawsuit against The New York Times. In that case, both the judge and the jury ruled in the Times’ favor.
Locy agreed, saying that while she does not think the case necessarily has implications for journalists, it does have implications for how seriously women who are victims of domestic violence are taken by the public.
“If there is a danger, it is that people who behave badly and get called out for it may feel emboldened to try to enlist a jury to vindicate themselves (and) to engage in revisionist history of their lives and sort of embellish or polish or clean up their reputation,” Locy said.
The case does not set any legal precedents, which can only be set by appellate courts. But some experts said the case may serve as a blueprint for other people who have been accused of misconduct. Depp’s friend, musician Marilyn Manson, has already sued actor Evan Rachel Wood for defamation based on comments she had made alleging that he repeatedly and violently abused her while they were dating.
Advocates for victims of domestic abuse and sexual violence have warned that the Depp v. Heard trial could make them more hesitant to talk about their experiences. That chilling effect could also extend to victims’ willingness to serve as sources for journalists, Gutterman said. One psychologist told Rolling Stone that she has already heard from “hundreds” of survivors wanting to withdraw from court cases or retract statements they had made to the press.
People may not only feel comfortable suing their accusers, but also media outlets in which those accusations appear.
“In this country, there are large segments that think that the press is biased, that the press doesn’t do a good job,” Machado said. “I wonder if going forward, you will have people saying, ‘I’m willing to take on the media.’”
Kyle Rittenhouse, who shot and killed two men and injured a third at a protest in Kenosha, Wisconsin, in 2020, has already tweeted that the Depp v. Heard trial is “fueling” him. Earlier this year, he set up an initiative called The Media Accountability Project to fundraise money to “hold the worst offenders in our activist media accountable in court,” according to the project’s website.
Problems could arise if a future defamation suit against a media organization rises through the courts and appears before the Supreme Court, Youm said. At that point, the court would have a chance to review the actual malice standard set in New York Times Co. v. Sullivan.
Supreme Court Justices Clarence Thomas and Neil Gorsuch have already said the court should revisit that case. In a 2021 dissent, Thomas wrote, “The lack of historical support for this Court’s actual malice requirement is reason enough to take a second look at the Court’s doctrine. Our reconsideration is all the more needed because of the doctrine’s real-world effects.”
In some ways, the Depp v. Heard defamation case was not about uncovering the truth, but rather a “grudge match,” said Youm, who plans to mention the case in a future edition of his textbook for journalism students, “Communication and the Law.” Over the past several weeks, the trial has evolved into a public spectacle, one that has seen numerous attacks on Heard and her credibility. Though it doesn’t set precedent, the case is notable in showing that the actual malice standard can be overcome, Youm said.
“From a First Amendment perspective, the jury verdict and this particular defamation case illustrate a very troubling and disturbing development in which the defendant-friendly Sullivan rule — I am talking about the actual malice rule — is now not necessarily as unassailable as it was in the past,” Youm said.
Last week, Heard’s lawyer Elaine Charlson Bredehoft said they plan to appeal the verdict. Depp’s lawyer Benjamin Chew indicated on Thursday that Depp may waive the damages if Heard drops her appeal. If Heard does appeal, experts are split on her chances of success. Though Kaplan said he expected the decision to be overturned on appeal, he acknowledged that Heard may face difficulty since this was a private defamation case. Locy pointed out that courts in Virginia, where the lawsuit was filed, can be more conservative and may be sympathetic to Depp.
“It’s tough to make a prediction. If I was making a prediction eight weeks ago, I would have said that there’s no way Johnny Depp is going to win at trial,” Gutterman said. “I think there are certain elements under the First Amendment and certain elements under the body of defamation law that could be strong for Amber Heard’s appeal, but we’ll see how they frame it.”
