Free Speech

Johnny Depp's Libel Claim Against Ex-Wife Amber Heard Can Proceed

Heard's Washington Post op-ed didn't mention Depp, but the judge concludes that in context it would be seen as implying factual assertions about him.

|The Volokh Conspiracy |

From Judge Bruce D. White in Depp v. Heard, 2020 WL 1515197 (Va.Cir.Ct. Mar. 27), just posted yesterday on Westlaw:

Plaintiff's claim for defamation stems from four statements made in Defendant's op-ed, which was published in the Washington Post online and in print on December 18, 2018, and December 19, 2018, respectively.

The article, entitled "Amber Heard: I spoke up against sexual violence—and faced our culture's wrath. That has to change" (online) and "A transformative moment for women" (print), does not name Plaintiff explicitly. It discusses how-—two years before the op-ed was published—Defendant became a public figure "representing domestic abuse," what Defendant experienced in the aftermath of attaining this status, and what Defendant believed could be done to "build institutions protective of women."

Plaintiff brought this action on March 1, 2019, alleging that the op-ed was really about "Ms. Heard's purported victimization after she publicly accused her former husband, Johnny Depp ("Mr. Depp") of domestic abuse in 2016 …." Plaintiff asserts that "the op-ed's clear implication that Mr. Depp is a domestic abuser is categorically and demonstrably false" …. Plaintiff details a number of facts and circumstances to contextualize the 2018 op-ed, including certain events surrounding the couple's highly publicized divorce in 2016, to support his allegation that Defendant falsely implied that she was a victim of domestic abuse at his hands….

The Court finds that the following three statements are actionable:

[i.] "Amber Heard: I spoke up against sexual violence—and faced our culture's wrath. That has to change."

[ii.] "Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture's wrath for women who speak out."

[iii.] "I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse."

First, Plaintiff has alleged a number of circumstances that would reasonably cause the three statements above to convey the alleged defamatory meaning—that Mr. Depp abused Ms. Heard—to its recipients.

Specifically, the Complaint alleges that the events surrounding the parties' divorce—including Ms. Heard's repeated allegations of domestic violence—attended the making of her statements in the Washington Post op-ed. See Compl. (alleging that, in May 2016, Ms. Heard falsely yelled "stop hitting me Johnny." in addition to stating that Mr. Depp struck her with a cell phone, hit her, and destroyed the house, before she "presented herself to the world with a battered face as she publicly accused Mr. Depp of domestic violence and obtained a restraining order against him."); ("Despite dismissing the restraining order and withdrawing the domestic abuse allegations, Ms. Heard (and her surrogates) have continuously and repeatedly referred to her in publications, public service announcements, social media postings, speeches, and interviews as a victim of domestic violence, and a "survivor," always with the clear implication that Mr. Depp was her supposed abuser."); ("Most recently, in December 2018, Ms. Heard published an op-ed in the Washington Post that falsely implied Ms. Heard was a victim of domestic violence at the hands of Mr. Depp."); ("The "Sexual Violence" op-ed's central thesis was that Ms. Heard was a victim of domestic violence and faced personal and professional repercussions because she "spoke up" against "sexual violence" by "a powerful man."); ("Although Mr. Depp was never identified by name in the "Sexual Violence" op-ed, Ms. Heard makes clear, based on the foundations of the false accusations that she made against Mr. Depp in court filings and subsequently reiterated in the press for years, that she was talking about Mr. Depp and the domestic abuse allegations the she made against him in 2016."). Drawing every fair inference in Plaintiff's favor, the Court finds that these circumstances, as pleaded, would reasonably cause the three statements above to convey the alleged defamatory meaning that Mr. Depp abused Ms. Heard.

Second, Plaintiff has alleged an implied meaning that is clearly defamatory. Compl. (noting that these statements imply "Ms. Heard was the victim of domestic violence at the hands of Mr. Depp."), The implication that Mr. Depp abused Ms. Heard is defamatory per se because it imputes to Plaintiff "the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished." …

Drawing every fair inference in Plaintiff's favor, the Court can conclude—as Plaintiff alleges—that an aspect of the article relied on the factual underpinning that Ms. Heard was abused by Mr. Depp….

Resolving every fair inference in Plaintiff's favor, [statement (i)] could reasonably imply that the "sexual violence" Ms. Heard "spoke up against" was in fact perpetrated by Mr. Depp, as he alleges. While the Court recognizes that this factual implication derives only from a part of the statement, and that the remaining portion is couched in Defendant's subjective opinion and perception, the Supreme Court of Virginia has held that "[f]actual statements made in support of an opinion … can form the basis for a defamation action."

As for [statement (ii)], Defendant called herself "a public figure representing domestic abuse." which can be read to imply that she became a representative of domestic abuse because she was abused by Mr. Depp, not just because she spoke out against the alleged abuse. This inference can be drawn without extending the language beyond its "ordinary and common acceptation." … This conclusion is further supported by Defendant saying she attained this status "two years ago," which would have been the same time the parties' divorce was unfolding….

Drawing every fair inference in Plaintiffs favor, the Court can fairly conclude that Defendant's statement [(iii)] that she saw "how institutions protect men accused of abuse," could reasonably convey to its recipients that she saw how Mr. Depp was protected by institutions after he abused her and she spoke up against it. The Court finds that to reference one who was accused of abuse and protected by an institution can reasonably imply—at the demurrer stage—that the person in fact committed the abuse of which he was accused without extending the words beyond their ordinary meaning. Further. Defendant said she saw this happen to "men." "in real time," which—when read in context of the entire article, where Defendant previously stated that she became a public figure representing domestic abuse "two years ago," and in light of the circumstances pleaded about the parties' divorce—would reasonably cause readers to conclude she was referring to her experience with Mr. Depp despite her efforts to globalize the statement….

[But t]he Court finds that the circumstances alleged regarding the statements Ms. Heard made during and after the parties' divorce would not reasonably cause the fourth statement to convey a defamatory meaning…. Plaintiff argues that the following statement implies that Mr. Depp abused Ms. Heard: "I write this as a woman who had to change my phone number weekly because 1 was getting death threats. 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. Tabloid outlets that posted pictures of me spun them in a negative light. 1 felt as though I was on trial in the court of public opinion—and my life and livelihood depended on myriad judgments far beyond my control."

This statement lacks any factual underpinning that Mr. Depp abused Ms. Heard even when considering the circumstances alleged and resolving all fair inferences in Plaintiffs favor. The statement is too opinion-laden and representative of Defendant's own perspective for it to be actionable, and it notably lacks any implicit reference to the alleged meaning that Mr. Depp abused Ms. Heard. The Court simply cannot find that this statement has a defamatory charge without extending the meaning of the words far beyond their ordinary and common acceptation….

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  1. In a context where she was making the actual accusations, that would clearly be actionable. But here she seems to be referring to things that happened to her as a result of making accusations, not making the accusations themselves. Is that a distinction with any legal significance? I suppose not, according to the decision. But it seems strange to me.

    1. If she had made those references while also noting that she had voluntarily withdrawn the accusations, maybe. As is, probably not.

      1. So anything she says or writes about what has happened to her as a result of making the accusations would be actionable? That seems a little crazy. If she can show that these things actually happened to her after her accusations, how can they be libelous?

  2. Wow, I thought he’d have his fill after all his losing in English court…

    1. What is it you think he lost? The trial has been postponed. The court granted the defendant’s application for specific disclosures in part, denied in part. And denied the defendant’s their demand for costs (although it appears the court will carry that into trial). The trial was postponed by COVID.

      1. The consensus view is/was that those disclosures will sink his case.

  3. How does this get around _NYT v. Sullivan_ and the “public figure” exception?

    1. There is no “public figure” exception in NYT v. Sullivan. There was a heightened standard of proof (actual malice) where the plaintiff was a public official. Later, in Curtis Publishing v. Butts SCOTUS extended this heightened standard to all public figures (not just public officials).

      1. Right — I got sloppy — but wouldn’t there still be the “absence of malice” burden?

        1. In a “he said”/”she said” case, “actual malice” (which is to say the speaker’s knowledge the statement was false, or at least was likely false) doesn’t add that much of a burden. Either Heard is telling the truth (in which case “actual malice” is beside the point), or she’s not, in which case she presumably knows she’s not telling the truth.

          “Actual malice” matters a lot when someone (such as a newspaper) is reporting third-party allegations; there, the newspaper maybe correct, innocently mistaken, or lying, and the “actual malice” standard immunizes the newspaper for the innocent mistake. But here, Heard is making her own allegations, based on her purported first-hand knowledge of the situation.

  4. This case is a good example of why we should consider getting rid of defamation law altogether.

    1. Because people’s reputation isn’t something worth protecting?

      1. Both people are public figures so in this case would require proof of Actual Malice.

        Tho with celebrities in general especially someone as famous as Depp, almost everything about their lives are public knowledge to the point that in theory any Damages caused by a Defamatory Statement would be very minimal unless if there are any grains of truth to the claim. Believe that’s one of the reasons why there is a higher standard of proof when it come to Public Figures

  5. Hollywood stars? Who cares?

      1. Her lying lips?

      2. Like they say, no matter how good she looks, there’s some dude that’s sick of her shit.

        Or in this case, sick of having her cut his fingers off.

  6. Here’s a free link to the full opinion in Depp v. Heard:

    1. Thanks, just added the link!

  7. Audio of Amber Heard and Johnny Depp…she does not come off in a good light:

    1. Yes, that’s why “team Depp” leaked it…

  8. Defamation amateur, but: if deft claims to be a public figure as a result of abuse, but on the merits is found not to be abused (which is the factual predicate for her status as a limited purpose public figure) she has a basis for claiming that Depp has to show her actual malice (knowing falsehood) only to the degree that the public was misled about whether she was abused, i.e., the degree of the eventual falsity. More simply, she can only claim to be exonerated because she was unaware of the actual falsity of the claim if the falsity is glaring. Interesting paradox. (Amateur guess, likely wrong, don’t rely.)

    Of course Hollywood, so they’re either both public figures, or they need new publicists.

    Mr. D.

    1. “she has a basis for claiming that Depp has to show her actual malice (knowing falsehood) only to the degree that the public was misled about whether she was abused, i.e., the degree of the eventual falsity. ”

      Not so much. EV explains above, the actual malice requirement mostly protects third party publishers of defamatory statements.

      Heard is making statements that she claims to be from direct personal knowledge. If the court decides those statements are false (truth is a defense to defamation claims) then since she was claiming to be making the statements from direct personal knowledge, presumptively she knew that those statements were false when she made them.

  9. Perhaps. Admittedly, it usually applies to people who have no incorrigible direct knowledge. But the paradox arises because of the _characterization_ of whatever it is that X did to Y — Y herself might not have direct knowledge of whether the acts could be characterized as abuse. Her fan base, then, solely arising because the acts could be characterized as abuse, simultaneously makes an almost res ipsa claim of spreading a false claim and simultaneously insulates her from the claim by requiring knowledge of the falsity of the characterization.

    Mr. D.

  10. Pun opportunity missed for title: “Johnny Depp’s Libel Claim Against Ex-Wife Amber can be Heard”

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