The Depp-Heard trial and the many factors that shape free speech

Last week, a seven-member jury in Virginia found that the actor Amber Heard defamed Johnny Depp, her ex-husband, in a 2018 opinion piece—initially drafted by the American Civil Liberties Union and published in the Washington Post—in which she didn’t name Depp but did refer to herself as a “public figure representing domestic abuse.” (The Post’s servers and printing presses are in Virginia; the state also has relatively weak libel laws.) The jury also found that a lawyer for Depp defamed Heard when he claimed that she tried to frame Depp for damaging their penthouse, but Depp won the far greater share of the damages. If you’ve been alive on Earth lately, you probably know all this already.

Amid the inevitable cascade of reaction, the verdict started a discussion, in media circles, as to what it might mean for news organizations reporting on allegations of abuse; the legal bar for defamation is set very high for public figures in the US—with such plaintiffs having to prove that a defendant knowingly published false information, or did so with reckless disregard for the truth, to a standard known as “actual malice”—but the jury found that Heard’s relatively nonspecific, and anonymized, references to Depp cleared it. Fabio Bertoni, the general counsel at The New Yorker, wrote on Friday that Depp likely didn’t sue the Post in addition to Heard because he would have had to prove that the paper’s staff acted with actual malice, too. (Depp didn’t sue the ACLU either; after the verdict was handed down last week, the Post appended a brief editor’s note to Heard’s op-ed, which remains online.) Still, the verdict sparked fears that a dangerous precedent had just been set for the media. “I am a bit stunned that more journalists aren’t outraged and stunned by the Heard/Depp verdict,” the journalist Adam Davidson wrote in its aftermath, calling the verdict “a disaster for a publication’s ability to tell truth to power.”

ICYMI: Britain and its media party on

In the days since then, several observers have echoed Davidson’s alarm. Others, though, have pushed back. Writing in The Atlantic, Dan Novack, a media lawyer and podcast host, made the case that the verdict in Depp’s favor was a “toss-up”—a decision reached by seven specific people on the basis of a specific set of facts—and that it would be “a mistake to draw any sweeping conclusions” about the state of First Amendment jurisprudence. Neama Rahmani, a former federal prosecutor, told Insider that the verdict isn’t really “a free speech issue” but rather “a credibility issue,” with the jury judging that Heard lied; Mitra Ahouraian, an entertainment attorney, told the same publication that lying is not protected speech, adding “this is not about the First Amendment.” Heard plans to appeal. Here, too, experts are divided as to her chances of success.

Other commentators have taken something of a middle position—reflecting, as I see it, the fact that journalists’ speech and that of everyone else rises and falls together on a choppy sea of cause and effect. The verdict, in theory, “should have little relevance for publishers, who will continue to enjoy the same protections they’ve had for over fifty years,” Bertoni wrote—but it could mean, in practice, that “sources whom journalists rely on to cover important stories of abuse may be less inclined to make allegations publicly, for fear of defamation suits from perpetrators.” For reporters and their editors, even the threat of a lawsuit from a deep-pocketed plaintiff, regardless of its likelihood of success, can exert a chilling effect, especially in states that lack strong “anti-slapp” protections. Ultimately—as RonNell Andersen Jones, a law professor at the University of Utah, told the New York Times—the Post may not have been sued, but will nonetheless have “to live with the outcome of a case in ways that may impact its ability to participate” in public discourse on important matters.

Similarly, the Depp-Heard case showed that the breadth and nature of such discourse depend on vastly more than the boundaries of speech as enforced by law. Indeed, the trial played out in a hellish and ever-expanding pocket of our broader information ecosystem, inspiring a crush of content on social media, much of it mired in misogyny, misinformation, or both. The trial was televised from multiple angles, making it easy for pro-Depp trolls to clip it into memes for consumption on YouTube, Twitter, and TikTok; the latter, as Amanda Hess wrote for the Times, is “a bandwagon platform that rewards users for jumping unthinkingly on ascendant trends, so figures as innocuous as Lance Bass and the Duolingo owl mascot have thought it wise to contribute their own Heard mockery.” Often, this type of content bled through the porous boundary into more traditional forms of media. Even though the trial is over, “the elaborate grassroots campaign to smear a woman will remain,” Hess wrote, “now with a plugged-in support base and a field-tested harassment playbook. All it needs is a new target.”

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In recent days, it has been suggested that the omnipresent and slanted social media dynamics around the trial may have influenced the verdict of the jurors, who were told not to look at online content about the case but were not formally sequestered, either; Elaine Bredehoft, Heard’s attorney, has already made this case, and various legal experts with no connection to the trial agree. It is, obviously, hard to know what exactly the jurors were thinking. But, if we’re extrapolating lessons broader than this one case, it’s obvious that Heard’s treatment online will exert a further chilling effect on survivors of abuse going forward; indeed, Jessica Taylor, a psychologist, told Rolling Stone’s Ej Dickson last week that she had already heard from “hundreds” of survivors who want to retract statements they’ve made via the press or pull out of pending court cases. In an interview with Politico, Mary Anne Franks, a law professor at the University of Miami, argued that “the whole #MeToo movement should be reframed as a women’s free speech movement.” Credibility and free-speech issues aren’t so easily separated after all.

Ultimately, the Depp-Heard case has demonstrated that in our modern media ecosystem, a surfeit of speech and information can have a deleterious effect on other forms of speech and information. Even if you’re among those unconvinced that the verdict will set a dangerous precedent for the media in a narrowly legal sense—and on balance, I’d currently put myself in that group, though I’m open to being convinced otherwise—this is far from the only sense in which it might reshape a speech climate of which the media is a core part. Even in a narrowly legal sense, meanwhile, journalists have undeniable cause for concern here—less in any precedent that this verdict might establish in isolation than the broader prospect that the other, deep-rooted precedents underpinning America’s robust libel laws look less solid than they once did. Two right-wing Supreme Court justices have publicly questioned the actual-malice standard. It’s not hard to imagine others following.

In the aftermath of Depp’s win, various outlets explored the question of how he was able to prevail in the US after having lost a similar libel suit (against The Sun newspaper, not Heard) in the UK, where a court ruled that the description of Depp as a “wife beater” was “substantially true”—an unusual balance of outcomes given that British libel law is typically much kinder to plaintiffs. The discrepancy here seems, again, to hinge on specifics, not least the fact that a jury decided the US case whereas a judge decided the British one. But again, there is a broader context here: as I wrote recently, Britain is debating whether to make defamation suits harder for plaintiffs to win, at least in certain circumstances, whereas the momentum in the US is running in the opposite direction, even if the actual-malice standard looks safe for the time being. We might have more to fear, here, from a general transatlantic meeting-in-the-middle than from a single convention-flipping instance of divergence.

In his article, Bertoni, of The New Yorker, noted the dangers for speech—and thus democracy—that would follow any US Supreme Court decision to overturn the actual-malice standard. So did Jones, of the University of Utah, in a Slate article written with Lyrissa Lidsky. In particular, Jones and Lidsky took aim at the notion, advanced by the two justices interested in overturning the standard, that doing so would help clean up public discourse. “Defamation lawsuits do not always dislodge disinformation from public dialogue. In this case, the lawsuit just created more,” they wrote, of the Depp-Heard trial. Libel law “cannot possibly, on its own, solve our massive disinformation crisis.”

Below, more on the Depp-Heard case and libel law:

Other notable stories:

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Clarification: This post has been updated to clarify that the “actual malice” standard in US defamation law applies to public figures.

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.

TOP IMAGE: Fans try to listen to their phones as the verdict reached by the jury in the defamation lawsuit between US actors Johnny Depp and Amber Heard is read outside of the Fairfax County Circuit Courthouse on June 1, 2022, in Fairfax, Va. (Photo by Samuel Corum/Sipa USA)(Sipa via AP Images)