Amber Heard found out that speaking out against sexual violence (Washington Post, 12/18/18) can cost you $8 million.
The high-profile Johnny Depp/Amber Heard defamation trial ended with what seemed like a split decision: Both were found to have defamed each other. But with the jury awarding millions more in damages to Depp than to Heard, the outcome suggests that she defamed him more. The chilling effect of the ruling on survivors of domestic violence who want to speak out against their abusers is clear, but the damage from the case extends to all issues that depend on unfettered discussion in a free press.
Entertainment media coverage turned the legal battle of the two celebrities into a “media circus” (CBC, 4/24/22; HuffPost, 5/17/22), a voyeuristic and sadistic form of entertainment that harkened back to the days of the Jerry Springer Show. Progressive and centrist news outlets seemed reluctant to dig into the details of the case, perhaps assuming that the trial was a frivolous celebrity story. “Usually reliable outlets tended to steer around the facts,” an analysis on public radio’s WNYC (6/2/22) noted. Yet the substance of the allegations was gravely serious: Heard wrote a Washington Post op-ed (12/18/18), in which Depp’s name does not appear, where she described herself as a “public figure representing domestic abuse.”
The verdict has been loudly condemned, especially by feminists who saw the outcome as a successful retaliation by a powerful man against a woman who dared to call him out publicly (Guardian, 6/2/22). Us Weekly (6/4/22) reports that Heard plans to appeal.
Blow to a free press
Heard’s op-ed didn’t mention Depp, but it outlined an agenda for fighting gender-based abuse as it painted a picture of her own personal hell—not just as an intimate partner, but as a participant in a public conversation. “I write this as a woman who had to change my phone number weekly because I was getting death threats,” she wrote, noting that for months, “I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars.”
The op-ed was written with assistance from the American Civil Liberties Union, the trial revealed (Guardian, 4/28/22).
Daily Beast (6/1/22): “Depp and his attorneys chose to file their suit in Virginia…because of the state’s weak protections against frivolous defamation suits.”
Numerous outlets speculated that Depp had pushed for a Virginia venue because its laws are laxer when it comes to so-called strategic lawsuits against public participation, or SLAPPs (Bloomberg Law, 5/16/22; WTTG, 5/30/22). The Daily Beast (6/1/22) said, “Virginia’s anti-SLAPP laws are far weaker than California’s, which allow those accused of defamation to file a motion to dismiss the case before it even gets to trial.”
Given the outcome of the trial, how likely is it that the Washington Post, and many other outlets as well, will think twice about commissioning a public face to speak about serious matters of public concern that are rooted in personal experience? The fact that Depp had earlier lost a libel case over the Sun calling him a “wifebeater” in Britain, whose legal system has traditionally given less protection to journalists in defamation cases, is a bad sign for the ability of the First Amendment to protect the press from complaints about damaged reputations.
The Depp/Heard trial did not directly challenge the central legal protection for criticism of the powerful, the 1964 Supreme Court ruling Sullivan v. New York Times, which requires that public figures suing for libel prove “actual malice,” that is, that the statement at issue was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” As Fabio Bertoni pointed out in the New Yorker (6/3/22):
Once the jury determined that the statements were false—that is, they believed Heard was lying about the abuse—the step to finding that she knew they were false when she made them was virtually automatic.
But that doesn’t mean that the spectacle of a well-known celebrity taking contested claims to court and winning legal vindication won’t encourage other public figures to follow suit. Kyle Rittenhouse, who was acquitted of murder charges after shooting and killing protesters during the 2020 Black Lives Matter uprising in Kenosha, Wisconsin, has already indicated that the Heard verdict has inspired him to pursue defamation suits against outlets that covered his case (Vice, 6/3/22). “Johnny Depp trial is just fueling me,” he tweeted. “You can fight back against the lies in the media, and you should.”
Former Alaska Gov. Sarah Palin already brought suit against the New York Times for a retracted connection it drew between a Palin ad and a mass shooting (FAIR.org, 2/25/22). She lost, but her defeat only increased the grumbling by right-wing judicial activists that the “actual malice” standard ought to be tossed out altogether (FAIR.org, 3/26/21). Undoing that standard would make it much easier for public figures like Depp—or powerful politicians and CEOs—to sue news outlets for defamation.
In the wake of the Supreme Court striking down Roe v. Wade, other longstanding precedents look less permanent than they once did. Justice Clarence Thomas has made clear his enthusiasm for eliminating the Sullivan standard—most recently in his protest against the Court’s declining to hear the case of a homophobic ministry that tried to sue over being called a “hate group” by the Southern Poverty Law Center. Following the “originalist” logic that brought down Roe, Thomas wondered whether “the First or Fourteenth Amendment, as originally understood, encompasses an actual-malice standard” (Washington Post, 6/27/22).
Legal hammers
New York Times (6/3/22): When media report women’s #MeToo stories, “both the women and the press assume the considerable risk that comes with antagonizing the rich, powerful and litigious.”
The rich and powerful have been able to use legal hammers to attack the press in other ways. Billionaire venture capitalist Peter Thiel famously funded the lawsuit that ultimately took down Gawker (Guardian, 6/10/16). As Forbes (6/21/16) said at the time:
Critics have argued that Thiel’s money gives other billionaires a blueprint for how to silence media outlets they dislike. Thiel’s approach has also added a new twist to what’s known as “alternate litigation financing.”
As the New York Times (6/3/22) discussed, these kinds of lawsuits have become worrisome for news outlets during the #MeToo movement, as they “showed the delicate considerations for publishers—an engine of the #MeToo movement since it erupted more than four years ago—when they air those claims.” The Times‘ Jeremy Peters noted, “Both the women and the press assume the considerable risk that comes with antagonizing the rich, powerful and litigious.” Noting that the Washington Post had added a note to the Heard op-ed explaining that parts of it had been found to be defamatory, Peters explained:
For the Post, which was not part of Mr. Depp’s lawsuit, even appending the editor’s note carried some legal risk. Because the jury found that Ms. Heard’s essay was defamatory, updating it with new information could be considered tantamount to republishing it and, therefore, grounds for a lawsuit. When Rolling Stone was found liable for publishing the false account of a woman who said she had been raped at a University of Virginia fraternity, a jury found that the addition of a correction could be used to find the magazine liable for defamation—even though it had no liability for the initial publication itself.
When then-President Donald Trump said he wanted to reopen libel laws in order to sue news organizations (Politico, 2/26/16), he was likely blowing hot air, but in reality, the change in legal attitudes toward defamation and the media is happening before our eyes. Writers and potential writers have watched the Heard verdict closely, with the biggest takeaway being that one fiery op-ed implicating a public figure could make for legal trouble—all the public figure would have to do is find the right venue, the right jury and the right lawyer to make the right charismatic case to that judge and jury. That’s a kind of legal cancel culture we should worry about.
This is such a disappointing miss from FAIR. No understanding of defamation by implication?
No mention of the inaccurate legacy media coverage of this case? The blatant lack of research from journalists who were supposed to be covering what was being testified to? Did Ari Paul watch the trial? Are you aware that the LATimes and WaPo have been engaging in poor journalistic practices regarding the case? Are you aware of journalists failing to reach out to lawyers and others mentioned in articles for comments and then lying and trying to cover up that they published the fact no comment was made without having tried to reach for comment? The fact that an LATimes reporter fell for an internet meme suggesting that Jason Momoa testified in court, wrote it into his article, and then LATimes to sneakily edit it out when readers pointed out that it had never happened?
I would have thought these would be the things that FAIR would have been more inclined to dive into if you had at all decided to cover the trial. Very disappointing that this is the tired angle you went with instead.
It can take years to build credibility, and a moment to lose it. Having watched the trial, I fully understand the context and facts of the matter. This article makes me lose faith in the journalistic integrity of FAIR.
And since I don’t have the energy to fact-check every article, so instead I will no longer read FAIR’s content.
Did you mean to say – what little faith you had left – of the journalistic integrity of FAIR ?? I haven’t read a solid, insightful article in ‘Fair.com’ for months. They became Just social media organ in my view.
This is disgusting, the type of article I’d see from TERFs. I agree with Dan Dock and Sara, this article makes me lose all respect I had for FAIR.
Hmmm…Ari you kinda gloss over the problematic role that the ACLU (in a perversion to their original mission) played here. As much as I hate the Atlantic under its new editorship, here’s a primer on what exactly happened and why it shouldn’t have been handled in the way it was.
https://www.theatlantic.com/ideas/archive/2022/05/aclu-johnny-depp-amber-heard-trial/629808/
I don’t necessarily disagree with all your points, but this was a big part of that particular case.
While I agree with the ACLU playing loose with its core values, it could be argued–with the right’s ambition to take away rights from “others,” the Left can use all the help they can get.
Well, that does it. No reason to read anything from FAIR anymore or they can’t even accurately report things. A blow to survivors? Really? The man IS a survivor! Clearly Ari didn’t see any of the trial and is basing this article on Heard’s PR team’s spin. He failed to mention really any facts and simply spewed more of Elaine’s and Her’s rhetoric about how her loss was unfair. Justice was done. The only thing better would have been if they didn’t allow her a win based on his former lawyer’s statement, or if the trial had resulted in her getting perjury charges.
This sort of article, by the way, is actually showing further proof of just how far she will go and her stans will go to keep pushing a story that never made sense. And is being covered by ACTUAL journalists with a little integrity. Thanks for giving me the proof I needed to never bother with this publication again. I’m sure your broke benefactor is so very proud.
Lol @ all the botlike responses. At least Ari is giving original ideas–something I can’t say about the rest of you. Depp is as much an abuser as he is a victim. If you stopped being a simp for a minute, you can see how much this hurt victims of domestic abuse. Unless you think they deserved it…in that case, you might wanna evaluate your position. *shrug*
This just in: having a strong opinion based on watching a 6 week trial with your own two eyes makes you a bot
You hate watched that six week trial. FOH.
Hello. Fair.Org is one of the best sources of critical thinking regarding our society. We are all human and sometimes we make mistakes. A mistake has been made in this article and I think it is critical that we learn from it.
I am a survivor of long term narcissistic abuse. The only people who truly understand what this means are other survivors. Education is critical to understanding the narcissistic personality disorder. Some studies suggest the incidence of this personality disorder is one in six humans, I personally think it is higher than that.
Amber Heard suffers this personality disorder and easily ticks more than five of the nine traits as listed in the DSM 5 which is the official textbook in psychology.
It is critical to learn how destructive this personality disorder is and how prevalent it is in todays society. Perhaps the subject is worth a Counterspin episode. There are certainly thousands of narcissists zipping around the all the corridors of power both large and small inflicting all kinds of damage and abuse.
A psychologist I know once quipped that even his dog knew that Trump was a narcissist (for example).
Peace!
Isn’t a “survivor” someone who survives a likely prospect of death? And, in this case, does Mr. Paul have any proof that Ms. Heard was subject of any form of physical violence, at all? Is he in possession of facts not available to the public (and the jury) during the course of the trial?
Am not sure what responses here are at “botlike”, but the predictable ad hominem attacks on critics of FAIR do follow a pattern, not flattering to the organization.
Like the ACLU itself, driven now by a small but vituperative and tireless clique of intolerant semi-literate trans activists and liberal arts and “media studies” grads (and the older staffers who dare not cross them) who’ve read nothing and know nothing beyond their own delighted orbit, FAIR’s future is surely bright.
Hi, trans activist here: don’t just randomly open your mouth and passively watch words spill out.
One could just as easily generalize pro-Heard supporters as TERFs. You piece of shit.
these negative comments ignore ari’s main point: these tilted defamation suits from the powerful may squash journalism & overall dissent.
His “main point” — venue shopping and abuse of libel law by the powerful — is lost here altogether, drowned in a sea of woke platitudes and correct thoughts.
In this piece Paul, like Depp-despising mainstream pundits everywhere, refuses to accept a verdict which doesn’t conform to prevailing @metoo doctrine. Whether his position is deeply felt or simply required by the new FAIR regime, only he knows.
Tell it like it is dobley. Hitem where it hurts
I have watched many jury trials and generally the jury gets things right. Apparently this jury didn’t believe Amber Heard. Not all purported victims of domestic violence tell the truth. It seems to me that trial by jury is generally superior to trial by media. I am perhaps more concerned with sensational allegations of abuse reported and accepted uncritically by the media. The World Socialist Website wsws.org has an article, “The jury verdict in the Depp-Heard case: A telling, deserved blow to the #MeToo witch-hunt,” by David Walsh on June 2, that is definitely worth reading. Having said that, I appreciate the work FAIR does, and hate to see the gratuitous criticisms. The article makes some good points about how rich powerful players can game the system. But in this case, I tend to think justice was served.
Take you baloney and put it where the sun don’t shine. NO ONE is buying your idiotic attempt at controlling the narrative of this evil, manipulative, spiteful, liar and fraud. You people are sick in the head. Justice WAS in fact served. Why..? Because the decision was put into the hands of REAL and NORMAL people…..just everyday normal people whose brains are not fully given over to progressive liberal brain cancer, and THIS is why Justice WAS in fact served. Your time is up. Your absolute ‘control’ over the narrative is now blown to pieces. And YOU….and YOUR ILK….are DONE. It’s amazing that Depp is even still alive…after what this evil dark spirit put him through.
Ms. Heard herself is habitually violent – by her admission. Additionally, she proved herself to be quite dishonest. The conduct of both parties was abhorrent. Nonetheless,
let’s be clear, she is not a good candidate to represent the movement.
I strongly disagree that the verdict in this case serves as a loss for violence survivors.
The first argument against a jury’s verdict must be that it was not supported by the evidence. A corollary could be that the verdict was the result of corruption in selecting the jury, as I think cases that the federal government files in Virginia against whistleblowers, knowing that the jury Pool will be limited to federal bureaucrats whose faith in the infallibility of government eclipses even that of abortion opponents who receive their jury instructions directly from the mouth of God instead of the judge presiding in the trial. I’m sad to say that Ari’s critique doesn’t even hint at any error by the jury or the prosecution. His only argument is “take my word for it: the verdict was wrong.” Having admired his media criticism for many years, I feel that, like Homer, he nodded.
It’s simple, I’m representing Survivors of DV and SV, BOTH Female and Male Survivors, we can agree to disagree, your all entitled to your opinion, I am a Woman who grew up in a home with an ACTUAL FEMALE SURVIVOR of Domestic Violence, I too am an ACTUAL FEMALE SURVIVOR of DV and SV #METOO and I believe that True Justice Prevailed and the Verdict in the Johnny Depp vs. Amber Heard Trial was a Major Win for Survivors of Domestic Violence everywhere as the TRUE VICTIM in this case finally got to speak HIS truth, NO ONE should be shamed into silence and MEN can be VICTIMS too, Mr. Depp won on all 3 of his counts of Defamation regarding Amber Heard’s false claims of Abuse when the jury came to the conclusion that those statements made by her were Defamatory and saw through her lies. Mr. Waldman’s statement regarding her and her friends “roughing the place up” on the day of the call to 911 was the only statement that received any credibility from the Jury, Mr. Depp had actual evidence and both Ms. Heard and her lawyers seem to be bitter about losing this trial. If there was actual evidence to back up Ms Heard’s mountain of unsubstantiated accusations, any legal team worth their salt so to speak would have fought tooth and nail to bring it in front of a jury. The verdict was a triumph for both Real Victims of Abuse and Survivors of DV and SV. The sad, sorry, simple substantiated REAL TRUTH of the matter is Ms. Heard lied about the abuse against HER plain and simple (proven in a court of law) and this WILL NOT STOP REAL VICTIMS no matter their GENDER from speaking up despite her claims! Some of us actually watched the entire trial and listened to the full length audio recordings, some of us did NOT follow social media posts and based our decisions on the FACTS, on the actual EVIDENCE presented in court, not on who we liked more and some of us didn’t come into this with pre-conceived notions, and she needs to accept that the Jury did the same. All her “New” supposed “evidence” is considered Hearsay, which would be why it wasn’t allowed in court, it’s her making verbal claims to her therapist without evidence to back it up, she needs to stop and the media needs to stop entertaining her vitriol of further defamatory statements against the actual victim in this case. Amber Heard does NOT speak for ME, I DO. No One can Gas Light ME and I have a Voice, and I will NOT be Silenced, even if your opinion, doesn’t match mine.