Johnny Depp Avoiding First Amendment Core Of $50M Trial Against Amber Heard Could Prove Key To Victory: Analysis
On the eve of the jury’s first full day of deliberations, Johnny Depp’s $50 million defamation trial against Amber Heard has become a morass of misdirection and repugnance.
After six weeks, the plaintiff and defense both rested their cases Friday, and a seven-person jury finally went behind closed doors to decide on the courtroom drama.
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With both a sunglasses-wearing Depp and Heard sitting in the Fairfax County Courthouse courtroom, their respective lawyers offered up pugilistic closing arguments last week seemingly designed to cast the other side in the most toxic light possible. Bizarrely, the defense waited until the final hours to frame the matter around the First Amendment – a choice that may have been lost in the celebrity deluge since the trial started April 11. Unsurprisingly, with Depp and Heard both taking the stand twice, the livestreamed case has riveted a large chunk of the country and beyond for its sensationalistic and lurid soap opera nature, and captivated commentators with its potential social implications.
Seemingly lost however in much of the explicit descriptions of drug addiction, private islands, gold-digging, sexual assaults, private jets and severed fingers is just what the case really is about. Throughout the trial and claims by Heard of physical, psychological, verbal and sexual abuse at the hands of the fired Fantastic Beasts actor, it was almost an afterthought at points that it was Depp who sued his ex-wife in March 2019 over a late 2018 Washington Post op-ed the actress wrote about becoming “a public figure representing domestic abuse.”
Though the ACLU-crafted article in the Jeff Bezos-owned newspaper never mentioned Depp by name, he claimed it “devastated” his already waning career. Depp also insisted that he was in fact the one who was abused in the relationship.
Having failed to get the case dismissed or moved out of Virginia, Heard in the summer of 2020 countersued for $100 million. That action came months before Depp’s UK libel case against The Sun tabloid for calling him a “wife beater” proved dramatically unsuccessful in November 2020.
Outside the Virginia courthouse in this case, there has been a daily circus-like atmosphere from the beginning, made up in large part by fans of the Pirates of the Caribbean actor. For many of the self-described “Deppford Wives,” it is their idol who has been put on trial. The smaller batch of supporters of Aquaman star Heard, meanwhile, wonder why her cause hasn’t been championed by the #MeToo movement or why the actress herself has not been treated like the victims of the incarcerated Harvey Weinstein.
This is, however, a defamation case, one voluntarily brought by the litigious Depp not just once but in some ways twice — on both sides of the Atlantic. Axed by Warner Bros from J.K. Rowling’s latest Fantastic Beasts pic soon after the damning UK verdict, Depp has seen his British appeal attempts rejected.
While Heard all but admitted during the trial that she was referring to Depp in the WaPo op-ed, Depp’s threshold for proving defamation, like all cases involving public figures, is high — even higher than for the UK case. Requiring a unanimous verdict, Depp has to show that not only was what Heard wrote false, but that it was written in an act of actual malice.
Did that happen?
During the trial, plenty of evidence presented Depp and Heard arguing, via audio tapes, video clips and vile text messages, which is probably one of the reasons the trial became so captivating for so many.
When it comes to verbal abuse, Heard’s team, among other examples, points to a video leaked to TMZ in which Depp is slamming cabinets and says to his then-wife, “You want to see crazy? I’ll give you f*cking crazy.” Then he appears to grab her phone. When it comes to physical abuse, Heard went through multiple allegations and numerous arguments. More specifically, the actress claimed that Depp, in a December 2015 confrontation, struck her on the head and pulled out strands of her hair. Her legal team showed photos they said were taken of her afterward, with bruises under her eyes and what appeared to be on her nose, as well as a clump of hair on the floor.
Depp said that he did butt heads with his wife that night — but that it was accidental.
And he said that far from striking Heard, it was he who was abused by her.
Fronted by Brown Ruddick’s Benjamin Chew and Camille Vasquez, Depp’s legal team, too, presented audio of Heard seemingly taunting Depp and his career, and at another point her admitting, “I did not punch you. I was hitting you.” In an incident that was referred to and analyzed multiple times during the trial, Depp claimed that, in an argument in March 2015, Heard threw a large vodka bottle at him, with the strike and exploding glass severing the tip of his finger. Detailing multiple sexual assaults with bottles and more, Heard said a raging and plastered Depp did the damage to his digit himself in Australia during the rocky filming of Pirates of the Caribbean: Dead Men Tell No Tales.
All of this was presented in extensive, drawn-out detail, not just by video and audio but also using psychologist’s notes, diary entries and X-rays. When it came to Depp’s finger, one side’s expert witness orthopedic surgeon was met with another side’s expert witness orthopedic surgeon. Both, it should be pointed out, were handsomely paid for their time and insights.
The dueling claims of whether each was abused, however, misses a significant point about defamation cases.
Depp’s claim is that he was defamed by Heard, that his once blockbuster career suffered because of the Post op-ed. Heard’s team presented testimony from Depp’s then-UTA agent that the actor’s tardiness on sets and substance abuse were already becoming a major problem in 2015, well before the op-ed and even the couple’s 2016 temporary restraining order-tainted divorce. Led by Elaine Bredehoft and Ben Rottenborn, Heard’s legal team argued that Disney was looking to drop Depp from the Pirates franchise before the Post op-ed, while Depp may not have done himself any favors by admitting that, were it today, he wouldn’t take the role anyway.
When Rottenborn asked Depp during cross examination, “If Disney came to you with $300 million and a million alpacas, nothing on this earth would get you to go back to work with Disney on a Pirates of the Caribbean film? Correct?” “That is true,” Depp said.
Still, such moments of clarity aside, what’s mystifying is why Heard’s team, rather than focus the jury’s attention more fully on the elements needed to prove a defamation case, instead allowed themselves and their client to become bogged down in the details of the couple’s each and every fight and disagreement. If the strategy was to beat Depp’s team at its own game and overwhelm the jury with so many photos and texts and audio clips to make them conclude that it strained common sense there wasn’t at least one instance of domestic abuse on the part of the Edward Scissorhands actor — Heard’s team lost the plot and sometimes the jury’s attention.
The fact is, all Heard has to show is that what she penned about having endured domestic abuse, which can take many forms, was a true statement. In what looks like an obvious pivot from any perspective, there was near total absence of Heard’s team to go on the offensive and ask an obvious question during the trial: If this is a defamation case, why isn’t Johnny Depp also suing the Washington Post?
Although the Post printing its paper in Virginia was offered initially as one of the justifications for suing Heard in Old Dominion, the company was remarkably never a defendant in the case.
The answer might be that Depp didn’t want to risk battling the deep-pocketed Bezos and instead decided to take what is essentially another divorce proceeding dressed up as a defamation case, the latter of which carried with it all of the risks that his and Heard’s dirty laundry would be aired in public, as it has been over the past three years in the docket and especially over the last two months in Judge Penney Azcarate’s courtroom. Depp’s former agents and handlers may be convinced that his determination to press on with litigation is what is actually hurting his career, but Depp seems convinced that it’s a strategy that will leave him vindicated, even though he admitted on the stand that the claims of abuse will always be a dark stain on his reputation.
As he took the witness stand for the final time last week, a somewhat contrite Depp told jurors again that “no matter what happens, I did get here and I did tell the truth and I have spoken up for what I have been carrying on my back reluctantly for six years.”
Maybe he is right.
Maybe all of the attention on the trial has also given him a better shot at the court of public opinion than any kind of divorce proceeding might. Maybe even if he loses this trial, he somehow wins. Maybe he will be held up as a turning point in a counter to the #MeToo movement, as dispiriting that may be for advocates. Or maybe this will be treated as just another of his quirky persona, which his horde of fans outside the courthouse embrace, even if he’s lost his first case.
Arriving at the courthouse on a recent morning, Depp told cameras, “Alpacas. Dinosaurs. All kinds of stuff. It’s like paradise.” His fans loved it. The media lapped it up. Online, Heard was relentlessly attacked and degraded, again and again with no one from Depp’s side calling for restraint; in fact, the blast radius precisely enacted the “global humiliation” the actor swore he would bring down on his ex-wife.
Knowing full well that more lawsuits or appeals are coming regardless of who wins, the question now is will the jury be able to push aside the thick-fogged circus and spotlight the real legal principle at hand? First Amendment or not, it’s a lot to expect at this point.
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