DEPP, HEARD, AND THE SOCIAL MEDIA CIRCUS

By: Elisa D’Amico

Image Credit: GABBOT / WIKIMEDIA COMMONS

Johnny Depp and Amber Heard’s marriage lasted 15 months. Their trial lasted six weeks. And the jury deliberations lasted only three days (or about 12 hours). Shortly after 3:00 PM ET on June 1, 2022, the jury verdict was announced in court and by livestream around the world. The jury unanimously ruled in favor of Johnny Depp in his libel lawsuit against Amber Heard, finding that she defamed him and in doing so acted with actual malice. The jury awarded Depp compensatory damages of $10M and punitive damages of $5M. But the jury also found that, to a certain extent Depp defamed Heard, awarding her compensatory damages of $2M for her counterclaim; the jury did not award Heard punitive damages.

Although Johnny Depp and his team is undoubtedly celebrating this win, he certainly paid a price – justice comes at a hefty cost. And, despite the ruling, the reality is that this dispute is far from over. Not only will Depp and Heard have to face the court of public opinion, but we can most definitely expect Amber Heard to appeal the court’s decision. If this trial was any indication of interest, we can expect the appellate circus to sell out – the show will go on (and on, and on, and on).

The Real Issues

With the glut of real and doctored social media coverage about this case, it must be quite a task for any judge or jury to remain unbiased and to maintain an unbiased opinion about the two critical issues underlying in this case: the First Amendment and domestic violence. Anyone who categorizes this dispute as a celebrity squabble is dead wrong; to the contrary, the fundamental right to freedom of speech has gone head-to-head with the #MeToo movement.

Welcome to the Social Media Circus

Social media has become a feeding ground for those hungry to consume celebrity gossip. And those who chose not to tune in to the testimony wound up hearing about it anyway. Social media was force-feeding all of us whether we liked it or not. Although at its core the issues in this lawsuit are incredibly serious, the trial and media coverage has been anything but that. Outside the courtroom, fans line up with signs in-hand – some Depp fans even dressed up in costume in support of their fearless Captain (Captain Jack Sparrow that is). Tik Tok has exploded with clips of the trial as thanks to Court TV, cameras have recorded every single moment in the courtroom – from Heard blowing her nose to Depp’s commentary about finding feces in his bed. But even Depp would likely agree that Heard, not Depp, has been forced to bear the brunt of the internet harassment and the mob mentality of those responsible for it. Heard described the experience as “agonizing.” The trial in County Court may be over but the aftershocks will be felt for a very, very long time.

The Lawsuit

Depp sued Heard alleging that she defamed him in a Washington Post Op-Ed she penned in 2018 where she spoke freely about being a victim of domestic violence. She titled the Op-Ed “”I spoke up against sexual violence — and faced our culture’s wrath. That has to change.” And in it, she referred to herself as “a public figure representing domestic abuse.”

Although the piece did not mention Depp by name, he accused Heard of irreparably harming both his reputation and career prospects. Depp filed a lawsuit against Heard seeking $50M in damages based on her allegedly libelous Op-Ed. Heard filed counterclaims against Depp arguing, among other things, that Depp (by way of his attorney) defamed her by referring to her domestic violence allegations as a “hoax.” She insisted that he abused her and sought $100M in damages therefrom.

Virginia is for Ex-Lovers

Neither Depp nor Heard work or live in Virginia, but Depp was allowed to sue in the Commonwealth because the Washington Post – where Heard’s Op-Ed was published – “houses its printing press and online server in Fairfax County.” Why did Depp choose to file in Virginia? His attorney admitted that at least one reason is because Virginia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law is more narrow than California’s.

Getting SLAPPed

Lawsuits can be used to intimidate and silence critics – as they are often lengthy and expensive to defend. 31 states have anti-SLAPP laws on the books, which are designed to prevent one party from using lawsuits to dissuade critics from exercising First Amendment rights. If a defendant believes a lawsuit is designed to improperly quiet free speech, they can file a motion to dismiss pursuant to the anti-SLAPP law.

Heard’s attempt to move the lawsuit to California failed and hence, Fairfax, Virginia has become a media hotspot for the past several months. Although much of the reporting is fact-based, the salacious nature of the underlying issues and testimony has, unfortunately, led to an overabundance of sensationalized commentary about both of the parties, down to their courtroom attire.

There is no doubt that social media played a role here. Whether the social media circus eclipsed justice in this case is still very much unclear. But given the critical issues at play – the First Amendment right to free speech and domestic violence and abuse – this case will have a long-lasting impact on more than #MeToo. Irrespective of our beliefs, this lawsuit will have an impact on each of us and our fundamental rights.