Jeff Lewis weighs in on the constitutional requirement of proving malice in the Depp defamation trial.
Under First Amendment law, public figures such as Johnny Depp and Amber Heard need to meet ‘a very high’ burden of proof before they can collect damages from people who criticize them.
Jurors set to decide whether Amber Heard defamed Johnny Depp when she described herself as a domestic violence victim in a 2018 Washington Post op-ed, need to keep the First Amendment in mind before they render a verdict, legal experts say.
First Amendment law and free speech principles are key in any defamation case, particularly one involving public figures like Depp and Heard, said Los Angeles-based First Amendment lawyer Jeff Lewis.
As Heard and Depp’s attorneys made their closing arguments Friday, Lewis and other attorneys agreed that First Amendment principles have largely been overshadowed in this high-profile trial involving celebrity ex-spouses revealing lurid details of their toxic marriage, including vicious fights, drug binges, and alleged sexual violence.
As famed constitutional lawyer Floyd Abrams said in his Speaking Freely podcast, the case ultimately should rest of how the law defines defamation. Under this definition, government officials and preeminent individuals in society, including world-famous movie stars, need to meet a “very high” burden of proof before they can collect damages from people who criticize them.
Under this definition, the law “very clearly” favors Heard, said Neama Rahmani, a Los Angeles-based civil attorney, and former federal prosecutor.
“Just looking at the facts and the law, in my view (Depp) has not met this burden,” added Stanford law professor Michelle Dauber. “If the jury sticks to the law and the facts, he should not prevail.”
The public’s attention has been focused on Heard and Depp’s counterclaims of domestic abuse. Media pundits and people online have made a sport of debating which ex-spouse comes across as more believable or has done a better job proving they were the victim.
Many also see the trial as a referendum on gender-related issues. Men’s rights groups, along with Depp’s fierce online army of #JusticeforJohnnyDepp fans, have praised the actor for identifying himself as a male victim of domestic violence and for standing up for men who say they’ve been falsely accused.
Heard’s supporters, on the other hand, worry that the trial’s sensationalism could deter other women from coming forward when they’ve been physically or sexually abused, especially if their perpetrators are rich and powerful men like the “Pirates of the Caribbean” star. Rahmani agreed that crimes of domestic and sexual violence are seriously underreported.
In her final testimony Thursday, the “Aquaman” actor said she has received daily online abuse and death threats. Intimate private details she’s revealed on the stand — “the worst parts of my life” — have been used to humiliate her on social media.
Depp first sued Heard for $50 million, alleging she damaged his once-lucrative career when she published the December 2018 op-ed, referring to herself as “a public figure representing domestic abuse.” Heard later filed a $100 million countersuit, alleging that Depp and his former attorney Adam Waldman hurt her reputation when Waldman leaked information to the press and gave an interview, saying that her abuse claims were a “hoax” and that she made everything up.
As the New Yorker reported, Depp’s defamation case largely rests on the first part of one sentence in that op-ed, which was ghost-written by the American Civil Liberties Union and vetted by attorneys. The op-ed had Heard saying: “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”
Heard didn’t use Depp’s name in the op-ed, but his attorneys have said it’s clear she was talking about him. During the trial, she testified about Depp’s explosive anger, especially when substances were involved, and described more than a dozen alleged episodes of physical and sexual assault.
Depp has vehemently denied ever hitting Heard or sexually assaulting her. His lawyers put witnesses on the stand, played recordings in court, and presented other evidence, which they believe show that Heard, not Depp, was routinely violent and out of control.
Taking the stand again Thursday, Depp said, “I have never in my life committed sexual battery, physical abuse. … No matter what happens … I tell the truth.”
These back-and-forth allegations shouldn’t entirely be the focus in a defamation case, legal experts said. In his opening statement, Heard’s attorney Ben Rottenborn told jurors that the law doesn’t ask them to “stand and serve as the umpire to two movie stars’ imperfect marriage.”
Instead, Rottenborn brought up what Lewis said should be the “critical issue” for jurors: the First Amendment. “Freedom of speech and the First Amendment gave Amber Heard the right to say the words she said,” Rottenborn said.
Defamation laws in Virginia, California, and the rest of the United States are based on the landmark 1964 Supreme Court case, New York Times Co. v. Sullivan, Abrams said. The court’s unanimous ruling held that criticism of public figures is at the core of American rights to free speech and freedom of the press.
The ruling said public figures shouldn’t be able to collect damages when false things are said or written about them unless they can prove the statements were made with “actual malice.” As Abrams explained, “actual malice” means the statements were made by someone who had “knowledge” the statements were false or who had “serious doubts” about whether they were true.
Under this standard, Depp’s attorneys must first prove that what Heard said about him in her op-ed was false, Abrams explained. Depp’s attorneys have another requirement: They must get into Heard’s “state of mind” and prove that she knew or suspected the statements were false but allowed them to be published anyway. The same goes for anything Depp said about Heard.
Meanwhile, in proving defamation, it’s not necessarily important for Depp’s lawyers to succeed in challenging Heard’s credibility on some issues, Lewis said. Depp’s supporters seem to believe that attorney Camille Vasquez scored a victory when she got Heard to admit she had yet to donate all the $7 million she got from the actor in a divorce settlement. After their divorce, Heard tried to deny the accusation that she was after Depp’s money by saying she was giving the entire $7 million to charity.
But Lewis said: “For defamation, you don’t have to be exactly right. The law gives you a lot of freedom to be pretty close if the gist of what you said was true.”
“Going into the trial, Amber Heard had a pretty low burden,” Lewis added. “All she had to prove is that on one occasion there was domestic violence. Just once. She didn’t have to prove it every single time.”
Rahmani agreed that, under the law, the legal burden is on Depp to provide “clear and convincing” evidence that Heard made up the abuse. “Even if she was the instigator in some cases, or that she perpetrated violence herself. They could both be victims. Even if the violence is mutual, she wins,” Rahmani said.
In her countersuit against Depp and his attorney, the burden of proof then shifts to Heard, who has to likewise prove the comments were false, were made with malice, and that they significantly hurt her financially.
There’s the possibility Heard could lose if the jurors are swayed by Depp’s charisma or are focused on other viral moments in the trial, Rahmani and Lewis said. There’s the mysterious “poop” in Depp’s bed, his severed finger, as well as viral recordings of Heard confronting Depp. In one recording, she taunted her famous movie star husband for seeing himself as a victim of domestic violence. In another, she admits she hit him, saying “I’m sorry. I hit you like this, but I did not punch you. I did not (expletive) deck you. … You’re fine. I did not hurt you.”