A court case between actors Johnny Depp and Amber Heard will commence on April 11 in Virginia. Depp filed a $50 million defamation lawsuit against Heard, his ex-wife, on the grounds that her op-ed about sexualized violence in The Washington Post, in which she did not name him, attacked his character. The case will start only four days before the release of “Fantastic Beasts: The Secrets of Dumbledore,” which Depp was fired from due to domestic abuse allegations.
Both Depp and Heard have made serious accusations against each other about domestic abuse, and this is not the first court case about how their relationship has played out in the media. In November 2020, Depp lost a libel case in the United Kingdom against The Sun, which wrote that he was a “wife beater” (Heard testified in this case). Heard’s lawyers tried to get the Virginia case thrown out due to the results of the U.K. case, but a judge did not do so due to the differences between the United States’ and United Kingdom’s laws.
Besides making headlines on entertainment sites, will this defamation case set any precedents for people who write about surviving domestic violence and their alleged perpetrators?
The New York Times Co. v. Sullivan case in the 1960s set an important precedent for how coverage of public officials, which also extends to public figures, is protected under the First Amendment.
“The ground for that decision was the court’s desire to ensure that defamation cases not become a new version of seditious libel and undermine public debate,” said, Lili Levi, professor of law and dean’s distinguished scholar at the University of Miami School of Law.
That is, unless plaintiffs can prove that the defendants acted with actual malice.
“Actual malice for defamation law purposes means that the statement was made either with knowledge that it was false or with reckless disregard as to whether or not it was false,” Levi said.
In other words, Depp would have to prove that Heard, in writing the op-ed, knew that her statements about surviving sexualized violence were false or did not care whether or not they were truthful.
A judge ruled on Thursday that Heard could use an anti-SLAAP provision in her arguments, as her article touched on an issue that is in the public’s interest: domestic violence.
Even if this case between Depp and Heard follows prior legal precedent, it may have the effect of making survivors of gendered and sexualized violence who identify with Heard more hesitant to write about their experiences or share them with journalists. Nicole Froio, a feminist researcher and journalist, is concerned that if Depp’s defamation suit is successful, it could lead to some perpetrators of domestic violence trying to silence survivors.
“It’ll give abusers ideas as to how to handle abuse charges or legal suits for things that they should be held accountable for,” Froio said. “It’ll give them legal avenues to silence their victims.”
Heard’s op-ed did not name Depp as someone who had abused her. However, him not being named in her article is not necessary because it is implied that he is her abuser.
“Although defamation law requires that the statement be ‘of and concerning’ the plaintiff and Ms. Heard’s column didn’t name him, Mr. Depp would argue defamation by implication because readers of the op-ed would have been aware that in 2016, before she filed for divorce, Amber Heard claimed that Johnny Depp had hit her,” Levi said.
Joel Kaplan, a former investigative journalist and the associate dean of Newhouse School at Syracuse University’s office of graduate programs who teaches media law, also said that The Washington Post is unlikely to be implicated in this case.
“The Washington Post is only culpable if Depp can prove that they knowingly published false and defamatory statements specifically related to him,” Kaplan said, who also thinks Depp’s case is weaker legally than Sarah Palin’s recent case against The New York Times. “He would not be able to prove that.”