Johnny Depp and Amber Heard Should Both Lose

The Depp v. Heard defamation trial in Virginia isn’t over yet, but everyone seems to have already picked a side. Whether you’re one of the 7.5 billion people viewing #justiceforjohnnydepp on TikTok or one of the 26 million checking out #justiceforamberheard, chances are that if you’re interested in the case, you have an opinion about which side should win. And if we’re talking odds here, you’re probably on Team Johnny. But how many of you actually know what this case is about? Contrary to what all the viral memes would have you believe, the case isn’t actually about which party was “the abuser” in the relationship. This case isn’t about men’s rights, #MeToo, or #BelieveWomen. It is a lawsuit involving competing claims of defamation that will require a jury of seven people to make very specific findings of fact on a limited number of issues. If the jury does its job and focuses solely on answering the questions the judge will soon instruct them to answer, there is a good chance that both Johnny and Amber will lose this case and return to their California homes empty-handed. From what I’ve seen of the evidence so far, neither side has a particularly strong case.

The Allegations

The entire case revolves around this op-ed in the Washington Post. Everyone on the jury will have to read the entire article. You should, too, if you want to decide for yourself which way this case should come out. Forget about the case for a moment. Read the article, then ask yourself what it was about. Defamation law requires consideration of the overall gist of the article and whether the factual component of the communication is substantially true. (See Air Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 237, 247 (2014)). To me, the op-ed is a #MeToo-themed article encouraging women who suffer domestic abuse to “speak out” and criticizing the cultural forces that would discourage women from doing so. Most of the piece amounts to Heard’s personal opinion (or maybe the ACLU’s opinion, according to some recent testimony) which is protected from defamation claims by the First Amendment. But she does mention that, “two years ago,” she had become a “public figure representing domestic abuse.” Depp is suing her primarily on the basis of this statement, on the theory that everybody knows she was referring to Depp and that by making this reference she was effectively telling the world all over again (falsely, he claims) that he was abusive towards her. He claims $50 million in damages.

Heard responded to the lawsuit by filing a counterclaim. The essence of the counterclaim is that Depp is responsible for statements made by his lawyer in which the lawyer referred to Heard’s abuse allegations as a “hoax.” Heard says her allegations were not a hoax, so the lawyer’s statements were defamatory. She’d like $100 million for the harm caused by the lawyer’s assertions.

What the Parties Have to Prove

To win a claim for defamation in Virginia, a public-figure plaintiff like Depp (or a public-figure defendant asserting a counterclaim, like Heard) must prove all of the following:

  1. a factual assertion or implication made by the party against whom the claim is brought;
  2. that is materially false (slight inaccuracies are insufficient);
  3. and defamatory in nature;
  4. that is about the party asserting the claim;
  5. and made to a third party;
  6. in a setting or context that isn’t privileged;
  7. with “actual malice”;
  8. that causes actual or presumed damages

Notice what’s not on this list. There is no requirement, for example, that either party demonstrate that the other one in the relationship was “the real abuser.” Online debates about who the primary abuser was in the relationship are really not relevant to the issues in the case. In fact, any of the witness testimony or other evidence brought out in this trial that does not relate in some way to one of the above 8 elements should not affect the outcome in any way. The case is not about whether Depp or Heard is a better human being. It’s about whether either one of them committed actionable defamation resulting in harm to the other.

The Role of the Jury

It’s the jury’s job to determine whether either party has proven the above elements. If and only if the answer is yes, they would then need to determine the amount of damages to award. If the answer is no, the party asserting the claim loses and gets nothing. This case involves competing defamation claims, with each party asserting defamation claims against the other. If neither party convinces the jury by the applicable standard of proof that what happened here amounts to actionable defamation under Virginia law, the Depp and Heard will both lose.

Depp’s Obstacles to Victory

1. Truth

Remember: Depp’s claim concerns only what Heard wrote about him in her op-ed. It’s not about whether Heard’s tears on the witness stand are real, whether she pooped in Depp’s bed, or which of the parties snorts the most cocaine. If the jury finds that the op-ed’s factual assertions are substantially true, then it’s game over for Depp as Depp will have failed to prove the material-falsity element of his claim.

Heard described herself as a “public figure representing domestic abuse” who “spoke up against sexual violence.” Those are the key statements that need to be false for Depp to win. The jury will have to interpret what they mean. If it finds these statements the equivalent of a mere observation that a couple of years prior, she had gained some notoriety for making an accusation of domestic abuse against Depp, then the statements would be completely accurate and therefore non-actionable. In my view, this would be the correct outcome. The op-ed doesn’t accuse Depp of any specific acts of abuse. All it says is that Heard became associated with domestic abuse when she had made certain allegations in the past. That strikes me as true, regardless of whether the alleged abuse actually happened.

How can Depp prevail if the jury finds the statement at issue to be true? By arguing that he was defamed not by what Heard actually said, but by what she implied.

2. Identifying and Proving Defamatory Implications

Even if a particular statement is literally true, Virginia law recognizes potential defamation liability where a defamatory message is conveyed by “inference, implication, or insinuation.” (See Carwile v. Richmond Newspapers, 196 Va. 1, 7 (1954)). Depp is arguing that even if technically true that Heard is a “public figure representing domestic abuse,” and even if true that she previously “spoke up” about sexual violence, her intent in publishing this op-ed was to communicate indirectly to readers that she had been sexually abused by Johnny Depp.

That’s not as easy as it sounds. For this argument to prevail, Depp will have to prove:

1. that Heard wrote or authorized the statement at issue;
2. that the statement, even if facially true, was designed and intended by her to imply a specific defamatory meaning about Depp;
3. that in light of the circumstances prevailing at the time the op-ed was published, the statement reasonably conveyed that defamatory implication to those who read the article; and
4. that the plaintiff suffered harm as a result.

(See Pendleton v. Newsome, 290 Va. 162, 174 (2015)). This sounds like a tall order to me. I’ve read the op-ed a few times now, and all I’m getting from it is a reference to a past event in which Heard apparently accused her partner of domestic abuse. I’m trying to read between the lines here but I’m not seeing any hints in the op-ed of any kind of hidden meaning.

Heard’s Obstacles to Victory

1. Defamation By Proxy

Heard’s counterclaim isn’t based on something Depp said personally. Rather, Heard contends that Depp’s lawyer at the time was making public statements referring to Heard’s abuse allegations as a “hoax.” She’s asking the jury to hold Depp responsible for statements made by his attorney. It’s not at all clear that when a blustering lawyer goes around bad-mouthing his client’s opponent in litigation that the lawyer’s client will be responsible for the lawyer’s word choice. Still, it can happen. If a client instructs his lawyer to make a public statement and that statement is false and defames the reputation of another person, that person can sue the client as the person ultimately responsible for the defamatory statement having been made.

2. Absolute Judicial Privilege

To my knowledge, evidence supporting the counterclaim has not yet been presented. So we don’t yet know the precise circumstances under which Depp’s lawyer may have referred to Heard’s abuse allegations as a hoax. To the extent the lawyer was referring to allegations Heard made to a California state court in 2016, they would likely be protected from defamation liability by the absolute judicial privilege. An absolute privilege protects statements made in connection with judicial proceedings. The privilege could also protect the statements if they were made in connection with the Virginia case, provided certain criteria are met.

3. Self-Defense Privilege

Generally speaking, if someone makes a false and defamatory allegation about another person, that person has a qualified privilege to deny the charge and retort. Here’s what the Virginia Supreme Court had to say about the subject back in 1887:

[W]hile it is true that one insult cannot be set off against another,…if a man is attacked in a newspaper he may reply; and if his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, it will be privileged. The rule deducible from the authorities is expressed by a modern text writer as follows: “Every man has a right to defend his character against false aspersion. It may be said that this is one of the duties that he owes to himself and to his family. Therefore communications made in fair self-defense are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, when such retort is a necessary part of my defense, or fairly arises out of the charges he has made against me.

(See Chaffin v. Lynch, 83 Va. 106, 1 S.E. 803, 810–11 (1887) (citing William Blake Odgers, A Digest of the Law of Libel and Slander at 228 (1881))). This means that if Amber Heard lied about how Johnny Depp treated her, the law allows Depp (and his lawyer) to dispute Heard’s account without having to worry about defamation liability themselves. The main question here would be whether calling her accusations a “hoax” amounts to a mere denial of the accusations or was disproportionate to the occasion.

Actual Malice

Both Depp and Heard will also have to deal with the question of actual malice. Both of their claims require more than just a showing that a false statement was made that caused harm to their reputations. Public figures like Depp and Heard must prove “actual malice” to prevail on any defamation claim. This doesn’t mean that either of them has to prove the other acted with evil or malicious intent. (That might not be so hard to prove). In the context of a defamation action, “actual malice” refers to a state of mind in which the speaker knows his (or her) statement is false, or at least possesses a high degree of awareness that the statement is probably false. Did Amber Heard accuse Johnny Depp of spousal abuse while knowing full well that he never once abused her a single time, emotionally or physically? Did Johnny Depp instruct his lawyer to characterize Heard’s allegations as a “hoax” knowing that everything Heard expressed and implied about his conduct was 100% accurate? If the jury answers “no” to both questions, they both lose.

It Ain’t Over Until It’s Over

First of all, Heard has only just begun presenting her case. My analysis could change as the case continues to progress and more evidence is presented. At this point, however, my feeling is that if the jury dutifully follows the instructions they are given and reaches a verdict based solely on the evidence presented rather than on passion, prejudice, or starstruck devotion to one of the parties, both sides lose.

And whatever happens at trial, this case is heading to the Virginia Supreme Court. Only then will a final adjudication be made. When the case reaches the state’s highest court, Depp and Heard will be long gone, along with all the courtroom drama, screaming fans, and alpacas. Instead, you can look forward to the court addressing such topics as

So regardless of which party wins at trial in Fairfax, Virginia, after all is said and done, don’t be surprised to see the Virginia Supreme Court vacate the judgment and declare both sides to be losers in this story.


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