In yesterday’s massive defamation award to actor Johnny Depp, his ex-wife Amber Heard was left holding a bill for $15,000,000. Even after a reduction for her own award and a statutory reduction of the punitive damage portion, Heard is still looking at $8,350,000 in damages. Many view that amount (which is $1.35 million more than her divorce settlement) to be justified in light of the damage caused to Depp’s reputation and career. However, the stain of this verdict should be shared with others, even if they avoided the sting of actual damages. That includes many in the media (including the Washington Post staff) who rushed to paint Heard as a victim and Depp as an abuser. Yet, the greatest condemnation should be reserved for the organization that not only pushed that narrative but actually helped draft the defamatory column: the American Civil Liberties Union (ACLU).
The ACLU’s role in this scandal emerged during the trial. While Heard was accused of reneging on her public pledge to give the divorce settlement to charity, she did give a large donation to the ACLU. The organization then made her “Ambassador for women’s rights, with a focus on gender-based violence.”
During the trial, evidence was introduced on how the ACLU staff helped Heard crafted the defamatory column. ACLU staffer Robin Shulman said in an email to Heard that she tried to capture Heard’s “fire and rage” in a draft. It was also reported that the ACLU’s executive director, Anthony Romero, and legal director, David Cole, also made contributions.
ACLU staffer Jessica Weitz acknowledged in an email that she was aware that there was the chance of litigation and told Heard “I want to make sure nothing was said in here that puts you in jeopardy with your [non-disclosure agreement].”
It is not uncommon for celebrities to use ghost writers and editors. However, many of us questioned what Romero and the ACLU were doing in the middle of this celebrity scandal. The answer is that the ACLU long ago abandoned its celebrated legacy as a fearless organization fighting for civil liberties and individual rights.
Under Romero, the ACLU has become openly political and increasingly scandal-prone. The political agenda has corrupted the organization in the sense of cutting it adrift from the strong principles that once held it firmly to its original mission. I have no doubt that the new direction is motivated by deeply held political values. I also do not believe that it has taken this course for purely monetary gains or donations. It is corrupted in the sense of debasing its legacy. The ACLU once represented something more than just another political advocacy group.
As with many other long-standing supporters of the ACLU, I have been critical of the politicization of the ACLU in the last decade. Many of the “Old guard” at the ACLU left the organization as it took on a public agenda, including abandoning its long tradition of supporting the least popular in our society in favor of individual rights. Those critics include former ACLU former head Ira Glasser, who questioned whether the ACLU still maintains its defining commitment to free speech values.
This trend was evident in its painfully nuanced approach to “hate speech” after criticism following the Charlottesville protests. Free speech protection was once the touchstone of the ACLU which was fearless in its unpopular advocacy. It now seems like an area of open retreat for the organization.
Some of us were particularly alarmed when the ACLU filed to oppose due process rights for students at our colleges and universities, particularly in the imposition of a higher and more consistent evidentiary standard. ACLU filed suit to try to block the increased due process protections mandated by former Education Secretary Betsy DeVos in her proposed reforms. I have long been a critic of the rollback on due process on our campuses and noted the absence of the ACLU in leading this fight. The ACLU sounded much like its historic opponents in decrying the scourge of too much due process as inhibiting greater enforcement.
With this free fall at ACLU has come an endless line of controversies like an ACLU staffer encouraging activists to “break” Sen. Krysten Sinema (D., Ariz.) and another staffer opposed the admission into college of Nicholas Sandmann. At points, it has become a parody of its own self like celebrating the legacy of Ruth Bader Ginsburg by editing her words as offensive.
The payment of the large donation by Heard to the ACLU only magnified concerns over what seemed like an all-hands-on-deck effort to support her public claims. Heard publicly pledged $3.5 million to the ACLU and previously claimed that she made good on the pledge. The trial showed that $1.3 million was donated in her name and it appears that $500,000 likely came from Elon Musk, who once dated Heard.
The ACLU has reportedly filed an action against Depp for $86,000 in reimbursement for the costs of looking for evidence in its files.
The ACLU was once the North Star for those of us in the civil liberties community. The loss of the organization as an independent and apolitical voice in our legal system has been devastating. The emergence of the ACLU at the heart of one of the most sordid celebrity trials in history is the final measure of the decline of this once celebrated civil liberties group. It was not easy to get here. It took the determined work of former President Susan N. Herman, current president Deborah Archer, and Romeo to erase decades of apolitical and impactful advocacy on behalf of civil liberties for all. The trial put the new ACLU on full review as just another political advocacy group. What many saw was not the courageous group that once defended the free speech rights of Nazis. Instead, what they saw was an organization seemed to be pandering to celebrities.
In the Depp-Heard trial, the ACLU finally hit the rock bottom as an organization in free fall. It ultimately was the reputation of the ACLU, not Depp, that may have suffered the most in the trial. Ironically, for critics, Amber Heard became the fitting face and ambassador of the ACLU: conflicted, confused, and corrupted.