An unlikeable victim v. "total global humiliation"
The core legal question in the Depp v. Heard trial was whether Depp proved she lied in writing about her domestic abuse.
With the law and evidence in her favor, the takeaway message is unmistakable: If your alleged abuser is rich and famous, stay silent.
— Kim Wehle
This week Amber Heard spoke to NBC in first post trial interview. Below I revisit the trial and write about the core legal question in the #DeppvHeard trial, and what the jury was being asked to do in reviewing the evidence and applying the law.
On June 1, 2022, the jury in Depp v. Heard decided that both parties defamed each other. It viewed Amber Heard’s actions as worse than Johnny Depp’s, as reflected by the $15 million judgment against her (including $3 million in punitive damages) compared to only $2 million on Depp’s tab. Depp promptly declared his “quest to have the truth be told” a vindication of his reputation. Heard seemed utterly defeated and bereft.
The jury did its job, which was to decide what version of the facts to believe, and whether those facts satisfy the legal standards for defamation. The actual evidence and legal standards suggest that the verdict against Heard should probably have gone the other way.
Keep in mind that Depp chose to bring this suit against his former wife, seeking over $50 million dollars for allegedly defaming him in a 2018 Washington Post opinion piece published in the wake of the #MeToo movement. She wrote about numerous experiences, including what she called “domestic abuse” since she became a public figure. She did not mention Depp by name. She wrote the piece, presumably, in solidarity with other victims of sexual abuse. But by linking her fame with domestic abuse, she ensnared the wrath of Johnny Depp.
Depp, who was 54 years old in 2018, claimed that the implication in her op-ed that she suffered abuse at his hands “triggered an endless barrage of hateful content,” “lower[ed] him in the estimation of the community” and harmed “his ability to carry on his profession.” Any Hollywood actor of that age, after decades of smashing box office records and catapulting to fame and epic sex symbol status, would inevitably see a decline in offers for blockbuster movie deals and overall Hollywood magnetism. But to Depp, it was Heard’s “false statements” that “prejudice[d] Mr. Depp in his profession as a film actor.”
Another actor might have responded by making indie films or becoming an ambassador for a charity.
Depp chose to sue. For a lot of money. Launching all involved into an unimaginable public hell. Heard was powerless to stop this, because her allegedly defamatory act—the 2018 op-ed that did not mention him by name—was already done. Hindsight was worthless. The lawsuit was in full swing. She had to hire a lawyer and drum up hundreds of thousands of dollars in defensive legal fees just to avoid a multi-million-dollar judgment against her.
In the initial lawsuit, it was Depp’s burden to prove that Heard’s claim of domestic abuse was a lie. Because Depp brought the lawsuit, not her, she had no burden of proving anything (although she later counter-claimed, reporting that as a result of Depp’s accusations, “I am harassed, humiliated, threatened every single day”). He had to prove the lie by a relatively high standard—“clear and convincing” evidence.
In other words, his claim that there was no domestic abuse had to be substantially upwards of 51% true (which would be a lower preponderance of the evidence standard in most civil cases), but less than 99% true (which would be beyond a reasonable doubt, the standard in criminal cases). If the evidence showed any instances of domestic abuse, Depp should have lost, because it means that the op-ed was not a lie.
Moreover, because he is a public figure, Depp had to show that Heard acted with “actual malice.” Regular people don’t have to prove that, because they don’t put themselves in the public eye willingly, subjecting themselves to critique and scrutiny. Depp is willingly famous, so his burden was higher. He had to show she lied about “domestic abuse” knowingly or recklessly. He didn’t have to prove that she lied to purposely hurt him, but he did have to show that she lied knowing it would hurt him or that she was reckless about the damage her #MeToo article might inflict on her ex-husband.
The jury heard evidence of abuse on both sides. Depp claimed he lost part of a finger when she threw a bottle at him. The evidence also showed Heard suffers from a personality disorder. And so on.
But none of that had any bearing on whether she lied about claiming she experienced domestic abuse. Either she did experience it or she didn’t. If she did not, Depp probably should have won both cases—the claim and the counterclaim. But he lost the counterclaim. Meaning the jury agreed with Heard when she claimed that Depp, through his former lawyer, lied in stating that she was peddling an “abuse hoax.” In order to award her $2 million, the jury had to believe her claim of abuse was not a hoax.
The fact that the jury reached an abuse conclusion is hardly surprising. It heard evidence that Depp slapped her, pushed her against a wall, head-butted her, threw drinking glasses and a cell phone at her, and raped her with a bottle. Heard’s sister Whitney testified under oath that she witnessed Depp grab Heard by the hair and hit her in the face repeatedly. It watched Heard cry during the reading of Depp’s 2016 text message, in which he wrote he had “no mercy” and hoped that karma “takes the gift of breath from her.” In another text reacting to Heard’s securing of a domestic violence restraining order against him, Depp wrote that she was “begging for total global humiliation.” The jury saw photos of Heard’s bruised face and her hair pulled out. It saw images of Depp’s drug and alcohol abuse. And it listened to an audio recording of Heard crying in the midst of an argument with Depp, saying, “Please, you’re killing me. You’re killing me. You’re killing me.”
The critical legal question was not whether any one piece of evidence was true or not. Nor was it whether Heard engaged in her fair share of abuse against Depp. The core legal question was whether Depp proved she lied in writing about her domestic abuse. This detail is important, because truthful public statements, even if harmful, are generally not actionable in court.
In speaking out as #MeToo survivor, Heard got slammed, badly. With the law and evidence in her favor, the takeaway message is unmistakable: If your alleged abuser is rich and famous, stay silent. After all, Depp started the lawsuit, not Heard. He could have shrugged things off and swash-buckled on to his next adventure—like his character Jack Sparrow did so brilliantly in Pirates of the Caribbean. That option may have even saved a reputation that he’s now managed to permanently destroy.
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