After Johnny Depp’s successful defamation claim against Amber Heard, many observers are wondering if a recalibration of First Amendment law is occurring in the United States.
By all indications, it was a close case. The jury spent dozens of hours deliberating, evaluating six weeks’ worth of testimony and evidence. It ultimately decided that the preponderance of evidence favored Depp. That’s a purely probabilistic judgment, reflecting a conclusion that Johnny Depp was at least 1 percent more likely to be telling the truth than Amber Heard. Clearly the jury did not find Depp wholly credible, either: It also (somewhat paradoxically) held Depp liable to the tune of $2 million for statements his attorney made calling Heard’s claims a hoax.
In other words, it was a toss-up, and it would be a mistake to draw any sweeping conclusions from it, even though that’s exactly what’s happening right now on social media.
I can’t help but think of similar alarm bells rung by many in the media back in 2016. That was when the former professional wrestler Hulk Hogan obtained a judgment against the website Gawker for publishing snippets of a video depicting him having sex. It was a shocking verdict—not because Gawker was found liable (there is absolutely no reasonable argument for publishing a surreptitiously recorded private sexual encounter between consenting adults)—but because the jury saw fit to award Hogan $140 million in damages, sending Gawker into bankruptcy.
How could journalists critically report about public figures without facing the same fate as Gawker? As it turned out, just fine. Shortly after Gawker’s demise, The New Yorker and The New York Times catalyzed the #MeToo movement by exposing Harvey Weinstein’s behavior. In the years that followed, hundreds more powerful men have been exposed as abusers. Hardly any of them have challenged the allegations in court. Indeed, the majority of defamation lawsuits arising out of #MeToo have been filed by victims suing abusers for calling them liars, not vice versa.
If you ask practicing First Amendment lawyers how the Gawker verdict changed the way they do their job, most will tell you it had little effect. More than anything, it was a wake-up call that juries value privacy differently than they do reputation. When the dust settles in the Depp-Heard case, the same is likely to be true. The First Amendment is enormously protective of media reporting on credible accusations of sexual abuse. It is telling that Depp did not name the ACLU, which helped draft the op-ed at the center of the case, or The Washington Post (which published it).
[Lara Bazelon: The ACLU has lost its way]
Though the robust protection enjoyed by news media may be cold comfort to Amber Heard, the reality is that cases like this defy easy categorization because they are so dependent on the specific facts at issue. Unlike other First Amendment protections (for example, an article that accurately describes a judicial proceeding is absolutely protected under the fair-report doctrine), a truth defense usually requires a credibility assessment by a jury. That can come only at the end of an expensive, time-consuming, and highly invasive public trial. There was never any reasonable possibility of a judge throwing the case out on Heard’s behalf, and those expressing shock that Depp went the distance were engaging in wishful thinking.
Depp has more wealth and fame than Heard, but both parties had the benefit of experienced, well-resourced attorneys who presented comprehensive narratives to the public. Dozens of witnesses were called, expensive expert witnesses were retained, and videos and text messages were presented as evidence. No stone was left unturned by either side. The jury got to hear from both parties directly. It was a fair trial.
Despite the verdict, to call this a clean sweep for Depp is misguided. He won his case on a narrow question of whether he physically assaulted his wife. To do so, he had to admit to shocking behavior that anyone could call abuse. That is hardly an exoneration. There are no real winners here, and the simultaneous celebration of #JusticeForJohnny and piling on against Heard online is disturbing, particularly because it began well before any of the evidence was even presented.
Every case is different, and every jury is unique. If Depp and Heard re-ran this trial (yet) again, it may well have gone the other way. The bottom line is that seven Fairfax County, Virginia, residents found in favor of Depp. They have no more say about the future of the First Amendment than the six Pinellas County, Florida, jurors in the Gawker case. First Amendment advocates need not view this as an insurmountable blow to free speech.
