Johnny Depp v. Amber Heard: The court of public opinion and the shifting defamation landscape

By: Dani Bhadare-Valente, 3L Member 

This year, a Fairfax County, Virginia jury awarded Johnny Depp a defamation victory against his ex-wife, Amber Heard. The trial not only captivated the American public, but the verdict may potentially change the trajectory of defamation cases involving public figures in the future.  

To win his defamation case, Depp first had to prove that: (1) Heard made or published statements about Depp; (2) those statements were false; (3) those statements had a defamatory implication about Depp; (4) Heard intended to defame Depp; and (5) those statements were published to someone other than Depp.  

Because Depp is a public figure, he also had to prove that Heard had actual malice behind the statements at issue. The actual malice standard required that Depp prove, by clear and convincing evidence, that: (1) Heard made the statements knowing they were false; or (2) Heard made the statements so recklessly that it amounted to a willful disregard for the truth. If Depp failed to prove any of these elements, the jury was required to return a verdict against him.  Depp sued Heard for defamation about three alleged statements in a Washington Post op-ed:  

  1. “I spoke up against sexual violence—and faced our culture’s wrath. That has to change.” 
  2. “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.” 
  3. “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” 

As Heard’s attorney correctly stated in his closing argument, she only needed to prove one instance of physical, sexual, emotional, or psychological abuse by Depp—by a preponderance of the evidence—to win against him. Why? Because truth is an absolute defense to claims of defamation. Even if the jury found that Heard exaggerated the abuse, she would still prevail if they found she had proven at least one instance of abuse. 

Heard carried that burden of proof. This case was not, as many try to characterize it, a game of “he said, she said.” Throughout the trial, Heard testified to fourteen incidents of domestic violence throughout her relationship with Depp, all of which were corroborated with the evidence she provided in their U.K. libel suit in 2018. Heard introduced recorded conversations with Depp and photographs depicting her injuries after several violent interactions with him.  Depp himself testified to becoming “a different person” when drunk or high and admitted that there were several times during their relationship where he blacked out and did not remember what he did, said, or acted.  

Despite the overwhelming evidence, however, the jury found that there were no instances of abuse. So, how do we reconcile these apparently contradicting realities? Is it a failure by the Heard’s legal counsel? Is it a complacent jury? Maybe. But perhaps it was simply because the court of public opinion carried more weight than the court of law.  

Johnny Depp is a critically acclaimed Hollywood actor and has been since he stepped foot on the scene in 1984, starring in A Nightmare on Elm Street. He was, and continues to be, a heartthrob for women around the world. In fact, adoring fans camped outside the Fairfax County, Virginia courthouse for days, hoping to catch a glimpse of the A-list actor. Fans grew up with, adored, and fantasized about Depp. Though the attorneys for both parties worked hard to fill the box with impartial jurors, it was nearly impossible to find someone who had never even heard about Depp or liked one of his films. People don’t want to believe that a person they grew up admiring was anything other than the idol they built them up to be in their heads. 

On the other hand, Heard had no such advantage. While she has been in the public eye since 2004, she has not reached the level of fame or adoration as her ex-husband. In fact, most people know her as “Aquaman’s girlfriend.” People did not have the same level of familiarity or adoration for her as they did Depp. Think of it as the “home-court advantage” in a basketball game: sometimes you root for someone solely because of the color of their jersey.   

Of course, Heard carried fault as well. Depp also alleged and testified that Heard was abusive in their relationship as an affirmative defense to her claims of defamation. However, two wrongs do not make a lie. The merits of the case rested upon whether each party lied about domestic abuse with actual malice. It’s plausible that Heard and Depp proved truth as an absolute defense in their both cases, because it seemed clear that they were both active in the domestic violence claims. In that case, neither party should have received a verdict for defamation. However, the court of public opinion ruled, and it ruled early on. Amber Heard lost the case before she stepped into the courtroom. 

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