“It is pronounced ‘egregious.'” Captain Jack Sparrow’s clarification in the movie Pirates of the Caribbean could prove useful when actor Johnny Depp takes the stand in his defamation case in Fairfax, Virginia against his former wife, Amber Heard.
The fact is that when a celebrity sues, let alone two celebrities suing each other, it is not enough to prove that something was false. You must meet an “actual malice” standard. Malice is one thing that this briefly married couple seems to have an abundance of.
Depp and Heard were married for just over a year but have already spent three times than that in litigation. Depp earlier tried sued a newspaper in England where the libel laws are far more favorable to those claiming defamation. He still lost and the judge declared that what The Sun published was “substantially true.” He is now trying his hand with a Virginia jury.
Depp is suing Heard for $50 million based largely on a 2018 Washington Post opinion piece where she described herself a survivor of domestic and sexual violence. Depp alleges that he lost his signature role as Captain Sparrow and other movie deals soon after the abuse allegation was made public.
Heard responded by suing Depp for $100 million.
In recent public statements, Heard insists that “I never named him, rather I wrote about the price women pay for speaking against men in power.” Her counsel emphasized that fact in their opening arguments.
It is a curious defense because it is not a legal defense. Heard can have still defamed Depp without mentioning him. Moreover, she is claiming that denouncing spousal abuse is protected speech on an important matter of public interest. However, it is of great public importance to denounce murder as a public value but it is not protected from civil lawsuit if you call your spouse a murderer, if it is untrue.
Indeed, the strongest argument for both actors as defendants is their greatest challenge as plaintiffs in the cross cases.
In New York Times v. Sullivan, the Supreme Court held that the first amendment requires breathing space for free speech in criticizing public officials. Accordingly, it created an “actual malice” standard requiring a showing that a false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” That standard was later extended to not just public officials but public figures like Depp and Heard.
The challenge for Depp is showing that Heard could not reasonably establish his actions as abuse.
The trial, however, highlights an ongoing question over why public figures like these should have to shoulder a higher burden, including when suing each other. The irony is that the higher standard for public figures was imposed by the Supreme Court because celebrities are viewed as inherently powerful figures in our society. In this case, two such celebrities are suing each other but can claim this protection in being sued by a celebrity.
Most of us recognize the value of a higher standard to protect citizens in criticizing government officials. Such a standard advances democratic values when citizens speak about about character and actions of those in power. It is less obvious why achieving a relatively small degree of public recognition should make it easier for people to lie about you. It takes very little to qualify as a public figure or limited public figure in our society.
The fact that someone is a hotdog eating champ or local graffiti artist does not seem to justify the imposition of a higher standard of proof. Even without the malice standard, they would still have to prove that a statement is false and caused harm to their reputation. Statements of opinion and political expressions could still be protected. However, the focus would be truth rather than malice.
Some justices appear interested in looking at that question and to reconsider the scope of the constitutional protection in defamation cases. Justice Clarence Thomas and Justice Neil Gorsuch objected recently to the denial of certiorari in Berisha v. Lawson. The case involves the son of Albania’s former prime minister who was treated as a public figure and subjected to the higher standard in a lawsuit over a book and movie. He insisted that he was falsely portrayed as an associate of the Albanian mafia and that Lawson used unreliable sources for his account. He was still required to prove guilt under the actual malice standard.
Of course, parties like Depp and Heard hardly need the Constitution to interject a malice element into their ongoing conflicts. Even without the higher burden, malice would likely still be argued in the case. Depp is arguing that Heard sought (and succeeded) in destroying his acting career as a violent abuser. Heard is alleging that Depp is seeking to trash her own reputation by portraying her as a craven liar.
In the end, the jury may find both parties to be equally “egregious” to pulling them into the maelstrom of their shipwrecked relationship. For the moment, both Depp and Heard seem to only agree on one principle from The Pirates of the Caribbean: “Take what you can, give nothing back.”