Not a Meme, But a Challenged Right: Potential First Amendment Implications of Depp v. Heard

by Sara Leonhartsberger, Blog Editor, University of Cincinnati Law Review Vol. 91

I. Introduction

Since its inception on April 11, 2022,¹ the Depp v. Heard defamation trial has been judged in the court of public opinion more as a source of entertainment rather than a battleground for free speech and its potential chilling effect on the speech of domestic violence survivors. Content creators on YouTube have titled the cross-examination of Ms. Heard with sensationalized, vilifying titles such as “Camille Vasquez shutting down Amber’s lies for 13 minutes straight”,² while other YouTube content creators have made multi-video, multi-hour compilations of TikToks mocking Ms. Heard’s testimony, espousing conspiracy theories, and expressing overwhelming support for Mr. Depp.³ Yet amid the equivalent of a high school popularity contest in its immaturity and insensitivity in handling the underlying context—an alleged abuser suing his alleged victim for expressing her emotional response to the public outrage she received after obtaining a restraining order against him⁴—the Depp v. Heard verdict’s potential implications on every American’s First Amendment right should alarm its people.

Depp v. Heard’s verdict, if affirmed on appeal, could effectively silence speech against public figures, contrary to Supreme Court precedent.⁵ Part II of this article will provide a background, discussing both the Supreme Court’s leading case on defamation of public figures, New York Times v. Sullivan, and the similarities between that precedent and Ms. Heard’s Washington Post opinion editorial. Part III of this article will discuss the Depp v. Heard verdict and its potential First Amendment implications. Part IV will conclude.

II. Background

A. New York Times v. Sullivan: The Supreme Court’s Public Figure Defamation Precedent

In New York Times v. Sullivan, the Supreme Court held that public officials⁶ could not prevail in a civil libel lawsuit unless they could prove the alleged defamatory statement was made with “actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”⁷ The majority reasoned that if Sullivan could prevail in a defamation suit where, strikingly, the news piece did not even refer to him by name,⁸ the law would be “constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth⁹ Amendments.”¹⁰ Even conceding that some of the statements were inaccurate¹¹ and that the New York Times had failed to check the statements’ accuracy,¹² the majority nonetheless held that evidence insufficient to prove actual malice, reversing the lower court’s judgement for Sullivan.¹³

Furthermore, the Supreme Court outlined the evidentiary deficiency in proving the statements to be made about Sullivan, pointing to the absence of his name in the article itself as one factor.¹⁴ The Supreme Court’s concern that unfettered civil defamation suits could bring countless judgements against a petitioner¹⁵ for the same publication also influenced their decision, reasoning that the “pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive.”¹⁶ Ultimately, the Supreme Court weighed public figures’ interests in a good name against the success of defamation lawsuits stifling persons “who wish to exercise their freedom of speech even though they are not members of the press”¹⁷ and held the First Amendment could not be “shackled” by public figures’ personal interests.¹⁸

B. Amber Heard’s Washington Post Opinion Editorial: Similarities to NYT v. Sullivan

On December 18, 2018, Ms. Heard published an opinion editorial in the Washington Post describing the cultural backlash she personally experienced after obtaining a restraining order against Mr. Depp.¹⁹ Similar to New York Times v. Sullivan, the article never mentioned Mr. Depp once by name; instead, it focused on her experiences of having to change her phone number several times, receiving death threats, and losing opportunities within her industry following the public outcry against her.²⁰ Additionally, the article called for renewed legislation to protect women’s rights and the use of the #MeToo movement’s momentum to gain further social ground for women’s rights.²¹ Mr. Depp alleged three statements from the piece were defamatory. They were: (1) “I spoke up against sexual violence—and faced our culture’s wrath. That has to change”;²² (2) “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force for women who speak out;”²³ (3) “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”²⁴ These three statements formed the core of the Depp v. Heard trial. The jury answered the question of whether three statements that did not mention Mr. Depp by name still were made with actual malice to defame him.²⁵

III. Discussion

A. Depp v. Heard Verdict

On June 1, 2022, the jury in Fairfax County Virginia Circuit Court unanimously found that the three statements made in Ms. Heard’s opinion editorial had defamed Mr. Depp, holding that Ms. Heard had acted with actual malice in making false statements.²⁶ The total damages awarded to Mr. Depp were $10.4 million.²⁷ However, Ms. Heard was awarded $2 million for her counterclaim, in which she had alleged Mr. Depp’s former lawyer’s comments calling her allegations of abuse “a hoax” had been defamatory.²⁸ Therefore, “the jury found that Depp, through Waldman, defamed Heard on one count.”²⁹

Before discussing the potential First Amendment implications of an affirmed verdict in this case, the logical fallacy of the jury’s verdict deserves some treatment. For the jury to find Mr. Depp liable for defamation through comments labeling Ms. Heard’s abuse allegations as a “hoax”,³⁰ it would logically follow that Ms. Heard’s abuse allegations were not knowingly false statements. How then, in the same trial, could Ms. Heard’s statements regarding her cultural treatment as someone who alleged abuse be considered defamatory, made when knowingly false and with the intent to harm?³¹

B. Potential First Amendment Implications

Unlike what the hours of social media mockery would lead one to believe about the Depp v. Heard trial, a verdict affirmed in Mr. Depp’s favor extends beyond two maligned or praised individuals in a singular case to the First Amendment itself.³² A favorable verdict would allow public figures to silence any critics, simply because they disagree with their critics’ expressed desires for social change.³³ Beyond the social ramifications of reinforcing a culture of silencing domestic violence survivors, a favorable verdict would stifle Ms. Heard’s political speech within her opinion editorial in advocating for renewed women’s rights legislation, a form of free speech zealously protected by the First Amendment.³⁴ Furthermore, other figures, such as Kyle Rittenhouse,³⁵ have lauded the Depp v. Heard verdict as a favorable precedent for defamation cases against individuals and the press.³⁶

IV. Conclusion

Clouded by pervasive celebrity culture, the public’s derision, indifference, or adulation of Depp v. Heard conceals the alarming challenge to Americans’ First Amendment right its verdict contains.³⁷ If affirmed in Mr. Depp’s favor, the Depp v. Heard verdict sets the precedent that public figures, even if unnamed, can foreclose free speech in the press and for other individuals. This would apply even if, like Ms. Heard’s opinion editorial, the speech also implicated political speech and otherwise public discourse.³⁸ Finally, in a culture that recently made progress toward supporting domestic violence survivors’ freedom to speak out, to affirm the Depp v. Heard verdict promotes a return to silence, particularly if the alleged abuser has a modicum of fame.

Cover Photo by Ed Uthman, licensed under the Creative Commons Attribution-ShareAlike 2.0 License

Sara Leonhartsberger

Although aspiring to practice within the Intellectual Property field, Sara Leonhartsberger has focused her Cincinnati Law Review blog articles on individual rights in Ohio's criminal justice system and her main article on human rights violations within the chocolate industry. Some of her blog articles discuss whether the exceptions to the 4th Amendment's exclusionary rule have consumed the exclusionary rule itself, and whether a violation of a criminal defendant's 6th Amendment right to a public trial requires a new trial as a remedy. Her main article discusses avenues of liability to reach the enabling conduct of American chocolate producers that perpetuates child slave labor on cocoa farms in the wake of the Supreme Court's decision in Nestle USA, Inc. v. Doe et al. (2021). While her life-long hobbies of reading and creative writing have influenced her desire to work as an Intellectual Property lawyer, her Law Review topics reflect her desire that the American criminal justice system to be shaped into one that provides justice for all instead of justice for a select few.

References

1
Kalhan, Rosenblatt, Johnny Depp and Amber Heard defamation trial: Summary and timeline, NBC News (June 1, 2022), https://www.nbcnews.com/pop-culture/pop-culture-news/johnny-depp-amber-heard-defamation-trial-summary-timeline-rcna26136.
2
Memelord, Camille Vasquez shutting down Amber’s lies for 13 minutes straight, YouTube (May 30, 2022), https://www.youtube.com/watch?v=hyaZtgW18I8.
3
DarthN3ws, TikTok v Amber Heard | Post-Testimony Ultimate Compilations | Part I, YouTube (May 11, 2022), https://www.youtube.com/watch?v=cGTdIpDgzmA; DarthN3ws, TikTok v Amber Heard | Ultimate Compilation | Part. 2, YouTube (May 22, 2022) https://www.youtube.com/watch?v=ASJPQ01Id8k; DarthN3ws, TikTok v Amber Heard | Post-Testimony Compilation | Part. 3, YouTube (May 29, 2022), https://www.youtube.com/watch?v=YyfY6gtVzh4; DarthN3ws, TikTok v Amber | Post-Johnny Depp Victory | Part. 4, YouTube (June 3, 2022), https://www.youtube.com/watch?v=qpfH498kr2I; DarthN3ws, TikTok v Amber | Internet Reacts to Johnny Depp Victory | Final part (for now), YouTube (June 5, 2022), https://www.youtube.com/watch?v=V_04SeU_AK8.
4
Rosenblatt, supra note 1.
5
New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).
6
While the term public official was used in this case to refer to an elected official, the law has developed to include public figures, defined in part as “individuals who have achieved pervasive fame or notoriety,” in the actual malice standard for defamation. See Cornell Legal Information Institute, public figure, https://www.law.cornell.edu/wex/public_figure#:~:text=Public%20figures%20who%20wish%20to,reckless%20disregard%20for%20the%20truth.
7
New York Times v. Sullivan, 376 U.S. 254, 264 (1964).
8
Id. at 258.
9
The Fourteenth Amendment factors into this case to make the First Amendment ruling applicable to the individual states.
10
New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).
11
Id. at 258.
12
Id. at 261.
13
Id. at 286-288, 292.
14
Id. at 288.
15
Id. at 278.
16
Id.
17
Id. at 266.
18
Id.
19
Amber Heard, I spoke up against sexual violence – and faced our culture’s wrath. That has to change, The Washington Post (Dec. 18, 2018), https://www.washingtonpost.com/opinions/ive-seen-how-institutions-protect-men-accused-of-abuse-heres-what-we-can-do/2018/12/18/71fd876a-02ed-11e9-b5df-5d3874f1ac36_story.html.
20
Id.
21
Id.
22
Id.
23
Id.
24
Id.
25
Rosenblatt, supra note 1.
26
Madani et. al., Johnny Depp wins defamation suit against Amber Heard, NBC News (June 1, 2022), https://www.nbcnews.com/pop-culture/pop-culture-news/johnny-depp-amber-heard-trial-verdict-rcna30926
27
Id.
28
Id.
29
Id.
30
Id.
31
Id.
32
New York Times v. Sullivan, 376 U.S. 254, 276 (1964).
33
Id. at 258.
34
Id. at 269.
35
Kyle Rittenhouse (@ThisIsKyleR), Twitter (June 1, 2022, 5:59 PM), https://publish.twitter.com/?query=https%3A%2F%2Ftwitter.com%2FThisIsKyleR%2Fstatus%2F1532119566872203270&widget=Tweet (“’The jury gave me my life back.’ ‘Truth never perishes.’ – Johnny Depp. I felt that! Congratulations to Johnny and his team on his defamation suit.”).
36
Kyle Rittenhouse (@ThisIsKyleR), Twitter (June 3, 2022, 8:13 AM), https://publish.twitter.com/?query=https%3A%2F%2Ftwitter.com%2FThisIsKyleR%2Fstatus%2F1532696854600855552&widget=Tweet (linking to an article that states at least 10 defamation suits could be filed by Rittenhouse); Andrew Court, Johnny Depp fans rally behind Marilyn Manson, slam Evan Rachel Wood, New York Post (May 12, 2022), https://nypost.com/2022/05/12/johnny-depp-fans-rally-behind-marilyn-manson-slam-evan-rachel-wood/.
37
New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).
38
Heard, supra note 19.