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.”
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.”
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:
- The media and the trial: In an article headlined “The Actual Malice of the Johnny Depp Trial,” A.O. Scott, a film critic at the Times, argued that the case devolved from “a clear-cut case of domestic violence” into “a ‘both sides’ melodrama.” The “convention of courtroom journalism is to make a scruple of indeterminacy,” Scott wrote. “And so we found ourselves in the familiar land of he said/she said.” Meanwhile, New York’s Choire Sicha argues that the mainstream media lost the Depp-Heard trial and that “lifestyle influencers turned court correspondents” won. “We were busy believing women, while women online were calling for Heard’s head,” Sicha writes—“and they, more than us, were shaping the general public’s understanding of the trial.”
- Cameras in court: As the trial unfolded, various observers criticized the judge’s decision to allow the proceedings to be filmed; Heard’s lawyers argued against the presence of cameras in the courtroom, but Depp’s argued for it, and the judge eventually agreed, in part on the grounds that banning them would cause more reporters to flock to the courthouse. Michele Dauber, a professor at Stanford Law School, described that ruling as “the single worst decision I can think of in the context of intimate partner violence and sexual violence in recent history.” Variety has more (and I wrote about the broader debate around cameras in court in the context of the Derek Chauvin trial last year).
- A First Amendment win: Last week, a judge in New York rejected Sarah Palin’s request for a new trial in her libel case against the Times over a 2017 editorial; the judge and jury both previously dismissed Palin’s suit, finding that she presented no evidence that the Times had defamed her with actual malice. (ICYMI at the time, Caleb Pershan covered the trial for CJR.) Writing for the Post, Erik Wemple argues that it’s past time for Palin to give up the ghost, adding that while her case may have “spotlighted the Times’s inadequate vetting of a hurried-up editorial, it has also affirmed the value of the actual-malice standard.” This week, Palin will be one of nearly fifty candidates running in a special election for a US House seat in Alaska. Santa Claus is among the others.
Other notable stories:
- On Friday, Alexander Ermochenko and Pavel Klimov, two journalists from Reuters, were injured when a vehicle provided for them by Russia-backed separatists came under fire near the eastern Ukrainian city of Sievierodonetsk. Their driver, also assigned by the separatists, was killed; Reuters has yet to establish his identity. Meanwhile, Russia summoned US outlets operating in the country to a meeting today, warning of “stringent measures” should US officials not reverse their “hostile” attitude toward Russian media.
- For the Times, Michael M. Grynbaum and John Koblin explored how Chris Licht has transformed CNN since taking over as its leader following the ouster of Jeff Zucker, describing the “Licht Doctrine” as “less hype, more nuance and a redoubled effort to reach viewers of all stripes,” including by inviting more conservatives on air. Licht has also abandoned Zucker’s tendency to micromanage CNN programming, leaving internal skeptics of Licht’s style “wishing for more specific direction from the top, not less.”
- The Intercept’s James Risen wrote about the time that Obama’s Justice Department green-lighted an FBI plan to “ambush and derail” a planned meeting in 2014 between Risen, who then worked for the Times, and a source who said he was considering handing over documents about spying at the National Security Agency. In the end, the meeting didn’t take place and Risen never heard from his source again. Risen says that he didn’t write about the plan until now because it was so convoluted that he didn’t fully understand it.
- Last week, a spokesperson for Amazon asked a third-party consultant to push news outlets to cover a letter from an advocacy group (and corporate partner of Amazon’s) arguing that an antitrust bill in Congress would harm communities of color—and the consultant accidentally copied a Politico reporter on his response. The emails “provide new details on how Amazon is working to beat back the most serious regulatory threat the tech industry has faced in decades,” Politico’s Emily Birnbaum reports.
- Also last week, Claudia Smukler, the production director at Mother Jones, explained how supply-chain disruptions have hampered the magazine’s efforts to put out recent print editions. “I’ve purchased paper through all kinds of market conditions over the years: energy shortages, sudden plant closures, tariffs, and transportation disruptions,” Smukler wrote. “I’ve always been able to procure it, but in the last 18 months, everyone I speak with starts each conversation, ‘I’ve never seen anything like this.’”
- Jess Morales Rocketto and Stephanie Valencia—former staffers with Obama’s campaign and administration, respectively—launched the new Latino Media Network and acquired eighteen primarily Spanish-language radio stations from TelevisaUnivision, including Miami’s conservative Radio Mambí and stations in New York, LA, and Chicago. Morales Rocketto told Sara Fischer, of Axios, that the new company’s work will not be political.
- Recently, Vladislav Doronin, a Soviet-born Swedish billionaire, sued the Aspen Times in Colorado, where he’s developing a hotel, over coverage including the paper’s description of him as an “oligarch.” The paper has since settled the lawsuit. In a column last week, its publisher defended management’s decision not to cover the suit while it was ongoing, following criticism from Aspen’s mayor and the paper’s interim top editor.
- Politico’s Michael Schaffer writes that many reporters think that Kevin McCarthy, the House minority leader, is “dumb” but feel they can’t say so. “It turns out that stupid may be one of Washington’s last taboos,” Schaffer writes. While other norms of journalistic politeness have crumbled—including in coverage of politicians’ dishonesty and, in at least one case, possible senility—“out-and-out accusations of dopiness are rare.”
- And Barry Sussman, a Post editor who oversaw the paper’s coverage of Watergate, has died almost exactly fifty years after that story began. He was eighty-seven. Sussman’s role was pivotal, but he was omitted from the Watergate movie All the President’s Men—“a decision that deeply wounded him,” the Post reports. According to Alicia C. Shepard, a Watergate scholar, Sussman also fell out in a big way with Woodward and Bernstein.
Clarification: This post has been updated to clarify that the “actual malice” standard in US defamation law applies to public figures.
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)