Originally published on June 3, 2022 in the Entertainment, Law and Sports Law blog, sponsored by the Entertainment, Law and Sports Law Section. Reprinted by permission of the New York State Bar Association (www.nysba.org).
Johnny Depp won.
Slightly less briefly…
Won what? His libel action against his former wife, Amber Heard.
Concerning? A 2018 op-ed piece in The Washington Post.
How? With a resounding victory announced by a jury verdict (almost exclusively) in his favor.
When? June 1, 2022.
Where? In the Fairfax County court, Virginia.
Meaning what? A slightly longer answer may be required.
Johnny Depp is a “wife-beater”. Wait, correction, he’s not a wife-beater. He was accused of being a “wife-beater” in an article in the British tabloid The Sun. Such a dishonorable stain on his character could not be allowed to stand, so back in 2018 he sued the newspaper for defamation in the London libel courts. Only, the dishonorable stain was allowed to stand, because he lost his case. With Amber Heard serving as one of The Sun’s star witnesses, the libel judge Mr. Justice Nicol found 12 out of 14 alleged incidents of domestic abuse to have taken place, thus the allegations made against him to be “substantially true”, and thus the court handed victory to The Sun, and credibility to Heard.
Depp announced that he would not allow this decision to define him; and to be doubly sure that it would not, he doubled-down and sought to rid himself of this offensive nomenclature by seeking reputation rehabilitation in Virginia. He sued there because this is home to The Washington Post. Only he didn’t sue The Washington Post, rather, he fixed his aim on Heard. She was the author of the op-ed in the newspaper – although in fact, the content, if not the headline, was actually ghost-written by the ACLU.
The op-ed did not name Depp, but he argued – successfully it turns out – that it identified him and did so in a deeply defamatory manner. He complained over the headline, “I spoke up against sexual violence — and faced our culture’s wrath. That has to change”; over an assertion that Heard was a “public figure representing domestic abuse”; and over reference to “how institutions protect men accused of abuse.”
After a six-week circus of intense evidence and robust cross-examination, offensive accusations and graphic messages and footage, sky-high headlines and daily live Court TV coverage, Depp the “wife-beater” has emerged as Depp “not the wife-beater at all”. The clearing of his name meanwhile, has turned the tables on Heard, casting her earlier earned credibility aside and labelling her a malicious liar.
The two cases in London and Virginia sprung from the same kernel of defamatory accusation, one of violent abuse. However, they differed dramatically, hence perhaps bringing about such dramatically different results. The Virginia trial was in part re-run, part sequel, and part remake of the London original – and whichever it is, it has – at least thus far, as Heard has said she will appeal – a happier ending for its eponymous hero.
In terms of similarity: some of the cast members in the two cases were the same, but playing different roles (vis, in London The Sun as defendant and Heard as witness; in Virginia Heard as the defendant and The Washington Post not featuring at all); some of the London evidence received a second reading in Virginia, as Depp was questioned by Heard’s team on his testimony in the English case with a view to showing disparities in what he said across the Pond.
The differences were significant. In the Royal Courts of Justice, a single, professional judge heard the case; in Virginia, Judge Penney Azcarate presided over a jury of seven members. In English defamation cases, the burden of proof is on a defendant arguing truth, to establish that the allegations are true; in the United States, the burden is on the plaintiff arguing that he is defamed, to prove that the allegations are false. Moreover, where the plaintiff is a public figure, the claimant must show that the allegations were published with actual malice. In England, the news-thirsty public read the evidence over their tea and toast, commentary illustrated with an occasional court-artist’s rendition of what happened inside its hallowed halls, while in the U.S., viewers were treated to coverage of the parties, the witnesses, the lawyers, and the judge on live Court TV.
Having failed to shimmy over the relatively-speaking lower bar in London therefore, it may have been a surprise that Depp seemed successfully to vault over the much higher hurdles in Virginia. Yet it did not go all Depp’s way. He sought $50 million damages from Heard but was awarded $10 million in compensatory and $5 million in punitive, the latter reduced by the judge to the statutory maximum of $350,000. With Depp’s loss, Heard’s demand for $100 million in her countersuit over the defamatory meaning that she had lied, went out of the window. However, she was awarded $2 million with respect of the accusation by one of Depp’s lawyers that her accusations were a hoax.
Although it might not have gone all Depp’s way, but it went far enough. If the English libel judgement against him can be seen as a black and white column, a small print note in history, the Virginia verdict may eclipse it in all in glorious Technicolor.
Some still may prefer the English ruling to the American one, some may believe the vanquished and never believe the victor, some yet may consider that there is no smoke without fire – but the verdict is the legal pill to start to mend his failing reputation, the detergent to cleanse a brand badly sullied, and the catapult required to shoot Depp’s star back into the ascendancy.
Depp has announced that the decision has given him his life back – we await to see whether it will give him back his career. Heard meanwhile has said that she is heartbroken at the result, and we await to see whether she will ever break back into Hollywood again.
The unedifying spectacle of a former married couple attacking each other through their attorneys in court and in exposing the inner (now no longer) secrets of a failed marriage on live TV reminds all lawyers of the high stakes involved in any litigation. Was it worth it? The defeated defendant may have considered free speech to be invaluable, but will have learned that there is a price to pay for false, defamatory, and unprotected speech and that this may have caused her an incalculable loss. With the post-trial high still likely coursing through the veins of the recently rehabilitated victor Depp, one can only presume that the song on Depp’s mind, as he strides across the stage on a musical tour with his friend Jeff Beck, is that of Amy Winehouse – “They tried to make me go to (rehabilitation) rehab, I said Yes, yes, yes!”
In related news…
Amber Melville-Brown is frequently sought out to comment regarding media and reputation matters, including the very public dispute between Johnny Depp and Amber Heard. Click on the title below to read the full article.