The Volokh Conspiracy
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As all of you must have heard by now, Johnny Depp won his libel case against Amber Heard, and was awarded $10 million in compensatory damages plus $5 million in punitive damages (but Virginia law reduces the punitive award to $350,000). The jury also concluded that one statement by Depp's lawyer—acting as Depp's agent—about Amber Heard, was libelous, and awarded Heard $2 million in compensatory damages for that. (That statement is, "Quite simply this was an ambush, a hoax. They set Mr. Depp up by calling the cops but the first attempt didn't do the trick. The officers came to the penthouses, thoroughly searched and interviewed, and left after seeing no damage to face or property. So Amber and her friends spilled a little wine and roughed the place up, got their stories straight under the direction of a lawyer and publicist, and then placed a second call to 911.")
The jury found that Heard's statements were about Depp and were false; and it concluded that there was clear and convincing evidence that Heard knew the statements were false. (Likewise, they found that Depp's lawyer's statement was false and that there was clear and convincing evidence that he knew it was false.) This is a reminder that, while libel cases are often hard to win, they can indeed be won.
I've heard some remark that this would create a chilling effect even on accurate #MeToo allegations (as well as a chilling effect even on accurate #TheyLied counterallegations). And that's absolutely true. Even if you know someone beat you or groped you or raped you, you might reasonably worry that a jury won't believe you, and will indeed conclude that your statement is a lie. That might deter you from making even such true statements, and not just the false statements (which the law is supposed to deter).
Indeed, one might therefore argue that there shouldn't be any defamation liability in such cases, regardless of whether a jury finds "actual malice" (which is to say knowing or reckless falsehood), precisely to avoid this chilling effect. In particular, one might argue:
It may be urged that deliberately and maliciously false statements have no conceivable value as free speech. That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech which all agree is constitutionally protected can be effectively safeguarded by a rule allowing the imposition of liability upon a jury's evaluation of the speaker's state of mind. If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained.
But that argument—which was actually made by Justices Goldberg and Douglas (and largely echoed by Justice Black) in New York Times v. Sullivan—failed to carry the day: Six out of the nine Justices rejected such categorical immunity for statements in public debate (even for speech about public officials, and not just about people who are famous but who don't exercise government power). Justice Brennan's majority opinion deliberately accepted some degree of chilling effect, albeit lessened by the creation of the "actual malice" standard; and eight months later, in Garrison v. Louisiana, that majority offered this explanation:
The use of calculated falsehood, however, would put a different cast on the constitutional question [and would allow even criminal punishment for libelous speech -EV]. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.
At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality…." Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
Perhaps Justices Goldberg, Douglas, and Black were right, and libel law should be categorically rejected (at least for speech on matters of public concern). But that's not the path our legal system has taken; even as it has cut back sharply on libel liability in many situations, it has accepted the core of liability for knowing or reckless lies that damage particular people's reputations, notwithstanding the chilling effect even such reduced liability can cause.
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