Depp v Heard: The jury’s burden

Millions of dollars were at stake in the voyeuristic defamation case between Johnny Depp and Amber Heard. But if either of them believed this action was going to salvage their reputations and vindicate them, they were sadly mistaken. They were also mistaken if they believed this was going to be a cake walk for either of them. In the United States, successful defamation suits commenced by celebrities are difficult to win — ask Sarah Palin.

A legal action for defamation claims injury to one’s reputation. Defamation must be more than hyperbole, parody or name-calling; it must go to the heart of a person’s reputation in the community. Libel and slander are two forms of defamation. Libel is the written form of defamation and slander is the oral form.

Depp complained that there are three lines in the Washington Post op-ed penned by Heard that are libelous, even though they do not mention him by name. The first is the title of the piece: “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.” The second is: “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.” The third statement is: “I had the vantage point of seeing, in real time, how institutions protect men accused of abuse.” Meanwhile, Heard accused Depp of defaming her by engaging in a coordinated smear campaign.

A defamatory statement, libel or slander, in a celebrity defamation case must first and foremost be false. Moreover, in defamation cases involving celebrities, even if the statements are false, the celebrity will be unable to collect money from the person who uttered or published the false statement unless the celebrity can prove that the statements were made with “actual malice.” In order to meet the requirement of actual malice, the celebrity must prove that the false statement about them was published with an element of inattention that defies logic. Importantly, while the phrase “actual malice” includes the word “malice” – generally understood as an intent or desire to cause injury or pain to another – it is not an element of the dispute in a celebrity defamation case.

The concept of actual malice does not include intent to cause harm; rather, it requires proof of imprudence, irrationality or delinquency. In other words, while both Depp and Heard claimed that each acted maliciously toward the other, that was not, initially, what the jury was charged to consider. Instead, the jury had to decide whether either or both published the statements at issue irresponsibly, with an utter lack of concern or dismissiveness regarding truth or falsity.

It is none other than the First Amendment that required such a high standard from both parties.

Here’s the deal: The Founders of our nation who crafted our Constitution and then amended it to include the Bill of Rights believed as an essential element of a functioning democracy that people must be free to speak their minds. At the time of the ratification of the Bill of Rights, which included the freedom to speak as one of the five freedoms listed in the First Amendment (the other four being, the freedom of religion, the freedom of press, the freedom to peaceably assemble and the freedom to petition the government for a redress of grievances), the right to speak freely without fear of prosecution by the government was somewhat limited. But since the middle of the last century, our right to express ourselves has garnered greater and greater protection from the courts, most particularly, the Supreme Court.

Public figures, celebrities and politicians are subject to the actual malice standard because they place themselves in the public eye and into positions of power. Public figures often have the power to shape politics and purchases, even the markets.

Because of their power to influence, public figures are often subject to additional scrutiny. Without that scrutiny, it is possible that public figures could abuse their power. The point is not that false statements are constitutionally valuable, and therefore protected, but rather that a healthy democracy requires free uninhibited speech. Without the actual malice standard, discussion about public figures will be silenced for fear of civil or even criminal liability, merely for speaking one’s mind.

Certainly, the relationship between these two people was fraught and angry. The jury had a difficult job ahead of them. They had to first determine whether the statements made by Heard and Depp, each against the other, were false. They did — the jury decided both individuals published false statements. Then the jury had to decide if either or both celebrities acted with actual malice. The jury decided that each party acted recklessly with regard to the falsity of their statements (all of them by Heard, one of them by Depp’s attorney), so that each party was guilty of actual malice.

In assessing damages, the jury was finally able to decide if either party acted punitively, with an intent to hurt the other. In this case, Depp was the clear winner. The jury decided that while Depp, through his attorney, disregarded the falsity of the accusation against Heard, it was not done with intent to injure. In contrast, the jury decided Heard’s statements were all meant with intent to injure and awarded Depp $10 million in punitive damages.

Heard leaves more injured today than from the emotional and physical bruises she alleges she suffered from Depp’s abuse. Depp hoped to leave the trial with his tarnished reputation repaired; that is unlikely. He leaves the trial with more money in his pocket, but not unscathed.

Lynn Greenky is associate teaching professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches an undergraduate course about the First Amendment and is the author of the forthcoming book “When Freedom Speaks.” You can follow her on Instagram @lynngreenky.