“Take What You Can, Give Nothing Back”: The Depp Defamation Trial and the Curious Legal Position of Celebrities in Litigation

 “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.”

 

37 thoughts on ““Take What You Can, Give Nothing Back”: The Depp Defamation Trial and the Curious Legal Position of Celebrities in Litigation”

  1. Causa Legalis Explicatio:

    … Why is the trial in Fairfax County?

    Depp’s lawyers wrote in the complaint that they filed in Fairfax County because The Post — which is not a defendant in the suit — is printed at a plant in Springfield, and its online servers are in Virginia; the print edition also has a wide circulation in the state. (Heard’s attorneys argued for the trial to take place in Los Angeles, where she and Depp lived.)

    Last month, Depp’s lawyer’s argued against Heard using Virginia’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law, which gives defendants immunity from frivolous lawsuits when they speak out about matters of public interest that are protected under free speech. Depp’s lawyer said the law shouldn’t involve private matters like the one between Heard and Depp. A judge ruled against Depp’s side, saying that Heard’s op-ed was about domestic violence, which is a matter of public interest, and she can use that argument of immunity with the jury. …

    https://www.washingtonpost.com/arts-entertainment/2022/04/10/johnny-depp-amber-heard-case/

    … Virginia’s new anti-SLAPP bills would afford defendants stronger protections. Provisions in the House and Senate bills would allow defendants to file a special motion to dismiss a lawsuit after it has been served, if the defendant believes the goal of the lawsuit is to stifle free speech on a topic of civic interest. …

    https://www.washingtonpost.com/local/public-safety/va-house-passes-bill-aimed-at-lawsuits-by-devin-nunes-johnny-depp/2020/02/11/865115f4-4cef-11ea-9b5c-eac5b16dafaa_story.html

    SLAPP Law: [Strategic Lawsuits Against Public Participation]

  2. Save your breath those of you will immediately accuse me of “Turley Derangement Syndrome.” Accusing me of hating Turley to dismiss my criticism is just like Liberals unfairly accusing Conservatives of hating immigrants for wanting to build a wall at the border. Neither is a legitimate argument. Remember that.

    1. “When the law is on your side, argue the law. When the facts are on your side, argue the facts. When neither the facts nor the law are on your side, make an ad hominem attack.”

      That is the world Jeff Silberman lives in. He can neither argue the law nor the facts, so he argues that Turley isn’t up to speed because he doesn’t use a proofreader. Does that mean JS is a jerk?

    2. Jeff,

      Your hateful obsession with Turley, as well as with Trump and Fox, is apparent to anyone who has read your posts. It is laughable that you attempt to present yourself as an objective commenter.

      1. @Ray:

        Save your breath those of you who will immediately accuse me of “Turley Derangement Syndrome.” Accusing me of hating Turley to dismiss my criticism is just like Liberals unfairly accusing Conservatives of hating immigrants for wanting to build a wall at the border. Neither is a legitimate argument. Remember that.

        1. Jeff,

          It is even more laughable that you believe that posting the same thing a second time will somehow make it plausible. I ‘triple dog dare you’ to do it a third time.

          1. Ray,

            I was not sure that you had seen my post anticipating that people like you would accuse me of hating Turley. I can’t hate someone I have never met! For the same reason, I don’t believe you hate me.

            Or do you?

              1. Mespo,

                I have said over and over again that I don’t hate Trumpists. Rather, I pity them for being duped. Recent case on point:

                “Jan. 6 rioter who said he wanted Trump’s ‘approval’ found guilty by jury”

                https://www.nbcnews.com/politics/justice-department/jan-6-rioter-said-wanted-trumps-approval-found-guilty-jury-rcna24458?utm_source=facebook&utm_medium=news_tab

                “Thompson’s attorney argued that “Donald Trump encouraged people like Dustin Thompson to storm the Capitol,” and took advantage of “vulnerable” individuals like his client.”

                “After the verdict, the judge went on to criticize Trump, “I think our democracy is in trouble because unfortunately we have charlatans like our former president who doesn’t in my view really care about democracy but only about power.”
                ————

                The judge’s comments echo what Turley said of Trump years ago that he was a “carnival snake charmer,” a charlatan. Sadly, this unfortunate Trump follower was too gullible to see through Trump as did Turley.

                  1. Karen,

                    I’m gratified that you don’t dispute my assertion that the convicted Trumpist was led astray by Trump’s Big Lie.

                    BTW, do you think Turley’s opinion of Trump as a charlatan was biased and political as well?

                    1. I find it interesting the constant attacks on Turley by those on the left.

                      There are many many actual liberals like Turley who have been red pilled by the idiocy of the left.

                      Turley is more familiar with it than most.
                      But he still has not grasped that there is no consequential threat fromt he right today and an enormous threat from the left.

                      I do not care about Turley’s judgement of Trump – Turley has shown over and over that no matter how evil the left behaves – he will get suckered in – most of the time, at least for a while.

                      Trump is not a charletan. You do not succeed as many times as he has in as many different domains by faking it.

                      Turley should know better – Charlatan has a meaning and it can be tested against Trump – and it does not fit.

                      There are many negative things Trump MIGHT be charlatan is obviously not one of those.

                    2. Say says:

                      “Turley should know better – Charlatan has a meaning and it can be tested against Trump – and it does not fit.”

                      Turley did not call him a “charlatan.” He called him a “carnival snake charmer,” which is tantamount to a charlatan but arguably worse. You don’t describe someone for whom you have any respect in such a demeaning manner. Turley took the measure of the man long before he was engaged by pro-Trump Fox News. Though Turley will defend Trump against unwarranted attacks from the Left, I defy you to cite one instance where Turley has ever complimented his character.

                      You won’t because he hasn’t. Turley knows better.

                    3. Turley responds to such words as you provide with a shrug. He says he will “continue teaching, writing, and litigating,” while you continue complaining. That is all you are capable of. Turley adds, “while there are always intense periods like the Clinton and Trump impeachments (or the 2000 and 2020 election controversies), the baseline does not substantially change for those of us with dual roles in academia and the media.” In other words, Turley is answering you and others simultaneously, but the witless do not understand.

    3. you want us to believe you?…but nothing in your post relates in anyway to the article….its as if someone ask you for a nearby restaurant recommendation and you immediately begin by randomly discuss Trumps resort Bar & Grill’s awful fish tacos….stop it…..focus on the stories at hand and perhaps people will take you as a legitimate intelligent poster ….I like most, believe you post several comments a day under several pseudonyms

      1. You are wrong. I’ll post what about and when I like. It’s called “free speech.”

        1. Yes, while the right protects your free speech, you are there to remove it from those who disagree with you. A bit hypocritical, don’t you think?

            1. Don’t blame the Civility Rule and everything else. Blame yourself. You are the problem.

  3. While I am a devout follower of Professor Turley’s career and his writings, certainly there must be someone in his office who can proff read his copy prior to publication.
    Yes, I know I misspelled a word but only to show how it can distract from the intent of an article’s author, especially a writing of a legal nature.
    My intent here is to address Professor Turley’s errors but, your focus now is more likely focused on my error than on his.
    High caliber legal writing deserves the same caliber of focus and accuracy.

    1. Denny,

      Given the enormous salary which Fox News pays him, you would think he would hire someone to do just that. He would never allow such embarrassing errors to be made in his written testimony to Congress, his law review articles or his opinion pieces in theHill.com. It would be unthinkable.

      Yet, it is a common occurrence on his blog. We are dismissed, for Turley will not deign to address some of our questions in public as any teacher should. That he won’t even bother to proofread his posts or engage someone to do so demonstrates the level of contempt for us in his so-called “blog family.” His actual family is treated with far more respect one hopes.

      1. What an awful person you are.

        Along with all his other duties, Turley writes an informal blog with about two pieces every day. He probably writes them when he has time between other chores and then puts them on his site. That means you wish him to hire a proofreader to be available whenever Turley wants. You want Turley to transmit the paper to this proofreader and then have it returned, at which time he rereads it and redoes some of the corrections the proofreader may have made. Then you want him to send it back to the proofreader for an OK before he posts his informal essay.

        1. We all make mistakes to be sure in commenting on this blog, but we are not posting long articles which will be read by hundreds if not thousands. If Turley can see fit to ensure that his writings for which he gets paid are mistake free, he can certainly maintain that level of excellence for all his output. Turley has apologized for his shoddiness in the past. Apparently, he is a bit ashamed as any self-respecting writer would be.

    2. Denny,

      You wrote; “While I am a devout follower of Professor Turley’s career and his writings, certainly there must be someone in his office who can proff [sic] read his copy prior to publication.”

      Do not throw stones if you live in a glass house.

  4. Johnny Depp is in the unenviable position of having to prove he didn’t do something, without witnesses.

    Happily for him, he recorded Amber Heard admitting she hit Johnny Depp, and threw pots, pans, and vases at him. In my limited understanding of this sad situation, the evidence points to Amber Heard as physically abusive.

    During these taped conversations, Heard exhibited a double standard, mocking Depp for objecting to her hitting him, because she claimed she didn’t use a closed fist. She allegedly severed the tip of his finger by throwing a bottle at him.

    Amber Heard admitted to being violent and out of control. People like that make excuses for their behavior. In her mind, Depp provoked her, and she felt her actions justified. She clearly lacks introspection or ethics in her sustained and targeted quest to ruin his career.

    Hollywood showed a double standard and poor ethics in removing Depp from movie rolls without sufficient investigation, while allowing Amber Heard to work.

    I have no idea if Depp physically harmed Amber, too. All I have to go on is her taped confessions of physically harming him. He is either a victim of physical abuse, and a toxic relationship, or they were both toxic to each other. He was the one with the serious injury, the severed finger tip. Women can and do abuse men, mentally and physically, and they can lie. That’s why we need to be an evidence based society instead of this mob rule that was pointed and fired at Johnny Depp.

    Johnny Depp had no history of violent domestic behavior. His previous relationships came forward and testified on his behalf. The behavior Heard described doesn’t start overnight. I tend to believe Depp over Heard, although it’s possible that if Heard assaulted him, he became physical, too.

    These are two people who should never have gotten together. Older men should really resist the temptation to get in relationships with women 20 plus years their junior. It’s rarely a love match. Men and women both should recognize the signs of a toxic relationship and end it.

    I think, given her own admitted behavior, Heard was utterly and entirely wrong to crusade to destroy Depp’s career. She had no moral leg to stand on. Their toxicity and drama filled breakup is something they should have kept private, or let the police handle. Once she went after him publicly, he must retaliate in kind or else be ruined.

    https://www.dailymail.co.uk/news/article-7947733/Amber-Heard-admits-hitting-ex-husband-Johnny-Depp-pelting-pots-pans-tape.html

    “Their heart-to-heart quickly descends into bickering as Heard accuses Depp of taking her for granted, behaving like a ‘vacation husband’ and ‘splitting’ every time they have an argument.

    Depp complains he’s forced to leave when she becomes ‘manic and angry’, telling Heard: ‘I’m not going be in a physical f**king altercation with you… you f**king hit me last night.’

    He goes on to add: ‘I’m not the one who throws pots and whatever the f**k else at me.’

    Heard responds: ‘That’s different. That’s different. One does not negate the other. That’s irrelevant, that’s a complete non sequitur.

    ‘Just because I’ve thrown pots and pans does not mean you cannot come and knock on my door. ‘

    When Depp cuts in to suggest he’s also had vases hurled at him, she replies: ‘Just because there are vases does not mean that you come and knock on the door.’

    ‘Really, I should just let you throw?’ Depp replies, tailing off as they carry on sniping.

    ‘The only time I ever threw anything at you was when you f**king threw the cans at me in Australia,’ he admits.

    Heard asks: ‘Why are you trying to justify who throws things based on whether or not you come knocking on the door? I don’t get why one informs the other.’

    Depp says, raising his voice: ‘Because that is a f**king irrational and violent f**king maneuver. So a man would want to get out of that area so that he doesn’t get so f**king angry that he actually does pop the f**king wife.’

    The exchange doesn’t point to any specific event but it has a possible reference to the contentious and bloody incident in which Depp suffered a severed finger one month into their marriage in Australia.

    He claimed his then-wife ‘went berserk’ when he asked her to sign a prenup and hurled a Vodka bottle at him which shattered on a marble counter-top, ripping off the tip of his finger.”

  5. OT

    FREEDOM OF SPEECH

    “NYC Subway Shooting Suspect: ‘Motherf**king Jews Bring Death & Destruction’”

    – Frank James
    ____________

    Minorities, of course, enjoy unfettered freedom of speech.

    May actual Americans enjoy constitutional freedom of speech and use the “n” word now, or is there a wholly antithetical and unconstitutional double standard favoring ——s?

    Yes, Americans actually are free.
    __________________________

    “You can’t handle the truth!”

    – Colonel Jessup

    1. The Saudis thought it was a great idea for the communists (liberals, progressives, socialists, democrats, RINOs) to steal the 2020 election; they’re marching in the Autocrat Parade with those kindly Russians.

        1. RESOLVE – “MEN AND WOMEN, YOUNG AND OLD, CATTLE, SHEEP AND DONKEYS”

          Gen. George Patton was right about Russia after WWII.

          Joshua was right about Jericho.

          America must have had a Saudi strategy 100 years ago.

          “So the Lord was with [America], and his fame spread throughout the land.”
          ___________________________________________________________

          Joshua 6

          6 Now the gates of Jericho were securely barred because of the Israelites. No one went out and no one came in.

          2 Then the Lord said to Joshua, “See, I have delivered Jericho into your hands, along with its king and its fighting men. 3 March around the city once with all the armed men. Do this for six days. 4 Have seven priests carry trumpets of rams’ horns in front of the ark. On the seventh day, march around the city seven times, with the priests blowing the trumpets. 5 When you hear them sound a long blast on the trumpets, have the whole army give a loud shout; then the wall of the city will collapse and the army will go up, everyone straight in.”

          20 When the trumpets sounded, the army shouted, and at the sound of the trumpet, when the men gave a loud shout, the wall collapsed; so everyone charged straight in, and they took the city. 21 They devoted the city to the Lord and destroyed with the sword every living thing in it—men and women, young and old, cattle, sheep and donkeys.

          27 So the Lord was with Joshua, and his fame spread throughout the land.

  6. The wife stating she is a victim of spousal abuse, not that she supports victims, would require her to prove that. As a juror I would not buy into lawyereese, but rule on the law and the facts and find her guilty of libel

  7. There’s probably a legal aspect for law students to learn here but who cares about these people. They’ve been blessed by God making millions of dollars playing make believe and they’re unable live happily ever after.

  8. One of our cultural flaws, at this point, is the curried notion that we should care what any entertainer does aside from major felonies against the general populace.

    1. I can love their work – when it is good, without paying the slightest interest in their opinions on other subjects.

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Res ipsa loquitur – The thing itself speaks
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