Could Johnny Depp’s win against Amber Heard deal a blow to free speech?
Whatever you may think about the courtroom drama between Johnny Depp and his ex-wife Amber Heard — and just about everybody seems to have something to say about this star-studded domestic dispute — it leaves me feeling like she was elegantly, if quite legally, mugged.
At the same time, the court of public opinion performed exuberantly or, in some cases, tearfully outside the courtroom and across social media with barbs mostly aimed against Heard, by my reckoning, branding her as an uppity “woke” member of the Hollywood elite for standing up against domestic abuse.
Somewhere in the more than six weeks of charges and countercharges of domestic abuse, leading up to a verdict against Heard on Wednesday, the proceedings seemed to lose sight of what the trial was supposed to be about.
At issue, amid the contretemps over which of these film stars was the bigger liar and who was the bigger victim, was the pointed question of whether Heard defamed Depp by writing an op-ed in which she identified herself as “a public figure representing domestic abuse” and argued that “institutions protect men accused of abuse.”
What was striking to me, among other skeptics, was how defamation was inflicted by an essay that didn’t mention Depp’s name. She also testified in court that she was not writing about her ex-husband. The guessing game brought to mind a modified version of an old Carly Simon song: Was Depp just “so vain” that he thought this essay was about him?
Well, not quite. Depp’s adept lawyers went to work on her credibility, focusing among a host of allegations, on three statements in her 2018 Washington Post opinion piece in her role as “ambassador on women’s rights at the American Civil Liberties Union”:
“I spoke up against sexual violence — and faced our culture’s wrath. That has to change.”
“Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”
“I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”
Sounds like normal political discourse to me. Yet, on Wednesday, a jury in Virginia’s Fairfax County
Circuit Court awarded Depp $15 million in damages in libel suit against his ex, and gave her $2 million in her countersuit against him.
This comes two years after a High Court judge in Britain dismissed a libel claim Depp had filed against the Sun newspaper for an article that had called him a “wife beater.” Without a jury, that judge ruled that it had been “proved to the civil standard” that Depp had assaulted Heard on 12 of 14 alleged occasions, all of which have been denied by Depp.
How did Depp’s allegations fail in London but succeed in Virginia? British and American libel law are quite different. As Mark Stephens, a London-based international media lawyer, told the BBC, in British courts the author or journalist has the burden of proof — and typically loses.
In American law, the burden of proof rests with the person who brings the libel claim, leading to a tradition of judicial tourism for well-heeled defendants seeking a break.
Or, as an old saying goes, a trial is a contest to see who can afford the better lawyer.
Meanwhile outside the courtroom, the trial in Virginia was livestreamed to one of the largest audiences since the O.J. Simpson murder trial in the 1990s. Millions picked it up and relayed it on social media, and “Saturday Night
Live” predictably lampooned it.
Most of this was only lightly covered by the mainstream media compared to the daily blizzard of allegations and gossip from right-wing outlets, who delight at the opportunity take on the #MeToo feminists.
House Judiciary Committee Republicans tweeted an animation of a triumphant Jack Sparrow, as played by Depp in “Pirates of the Caribbean.”
“And thus ends the #Me-Too movement,” tweeted a triumphant Ann Coulter.
What I find ironic about Depp, in particular, is how he touted his victimization after his earlier lawsuit lost and declared himself to be a champion of “free speech.” Then chose an odd way to show his free-speech beliefs with court fights that could serve to chill legitimate discourse.
What else can we expect if speaking out candidly, even without naming names, on a serious issue such as domestic abuse invites counterattack on your finances? Even Jack Sparrow could be impressed by that sort of piracy.