Defamation Claims Go to Trial – Billboard

In December 2018, at the height of the #MeToo movement, Amber Heard posted a comment on the Washington Post Evoke societal norms that support domestic abusers and put down their victims. She repeated in the column claims she had made two years earlier that she had suffered extensive abuse earlier in life, implying that her ex-husband Johnny Depp beat her, without specifically naming him in the piece.

mayhem ensued. Disney has dropped Depp from his starring role as Captain Jack Sparrow in the billionaire film Pirates of the Caribbean franchise just four days after the commentary ran. Depp sued Heard for $50 million two months later, accusing her of defaming him by describing herself as a domestic violence survivor. It was followed by Heard, who filed a $100 million countersuit alleging that Depp coordinated a campaign aimed at defaming her.

The case is now scheduled to go to trial on April 11 in Fairfax County, Virginia. Both sides have staked their careers and reputations, at least in part, on 12 jurors who will assess their credibility in a “he said, she said” case. For Depp in particular, this is his last chance to justify himself in court as he claims he is being boycotted by Hollywood in what he calls a scam orchestrated by his ex-wife.

“You don’t get these huge libel lawsuits,” says Claire Gill, an attorney who has represented high-profile celebrities and politicians in libel cases. “It’s very rare for someone to take that kind of a risk. One could say that this suggests that he may be telling the truth. The perception is, “Why would anyone do that unless what is being said about them is not true.” Others would say he’s desperate and has no choice but to go through with it. Either way it’s really unusual.”

The relationship began in 2011 when the former couple met while filming The rum diary. Heard filed for divorce in 2016, just a year after their marriage. She made headlines when she obtained a restraining order against Depp, accusing him of hitting her. She told the Associated Press at the time that she suffered “excessive emotional, verbal and physical abuse” at the hands of her ex-husband.

Heard continued to deny her allegations during divorce proceedings, in which she received a $7 million settlement. The couple said in a joint statement at the time: “Neither party has made false allegations of financial gain. There was never any intent to cause physical or emotional harm.”

But the argument—and the animosity—was far from over. Shortly thereafter The sun ran a play in which he called Depp a “woman beater”, Heard published a Washington Post Opinion titled: “I’ve spoken out against sexual violence – and faced the wrath of our culture. That needs to change.”

In this case, a British court held that The sun had shown that his claims that Depp punched Heard were mostly true. She joined the publication that 12 out of 14 alleged incidents or assaults had been proven.

In March 2019, Depp sued for defamation in a Virginia state court. He claimed the column was based on the false premise that he abused her and claimed he was in fact the victim. He highlighted newly available evidence supporting his claims, including eyewitness accounts and surveillance video, which he says showed Heard was unharmed shortly after she publicly claimed she was injured in a violent altercation with him.

Heard has detailed numerous instances where she says she was abused, most commonly when Depp was allegedly intoxicated with drugs and alcohol. One of the incidents reportedly happened in December, when she told Depp she was leaving him. He continued to beat her and press her face into a mattress, the court alleges. “For a while I couldn’t scream or breathe,” she wrote in a court statement. “I worried that Johnny was in a blackout state, unaware of the damage he was doing and that he might actually kill me.”

One of Depp’s main allegations was that Heard faked her injuries and lied about being abused to boost her career. He alleged that Heard went to court in his lawsuit against him in May 2016 The sun in which she testified with “painted bruises showing witnesses and surveillance footage that she has not possessed every day of the preceding week”.

So how will the jury judge the trustworthiness of two people known for their acting skills who give conflicting accounts of their time together?

With her intestines, according to legal observers.

“As far as credibility goes, everyone has their own way of assessing that of witnesses,” says Virginia libel attorney Lee Berlik. “Are they fidgeting with their fingers? are they looking at you Are you attractive? The jury only makes observations as to whether or not they appear trustworthy or credible.”

Gils says the same. “It’s something quite intangible. You are asked to believe someone. It’s things like body language, how they express themselves and show how they contradict themselves in the evidence that will count.”

Heard has struggled to hide evidence that she didn’t donate the entire $7 million divorce settlement to Children’s Hospital Los Angeles and ACLU. Heard has said she has committed to paying the full amount over 10 years. Her attorneys have claimed that to date she has donated at least $950,000 to the ACLU and $850,000 to the CHLA through anonymous donors. Heard’s attorneys argue that this is irrelevant to the core issues of the case and would disadvantage the jury. Depp counters that this affects their credibility.

While the central question in the case is whether Heard was abused by Depp, the allegedly defamatory statements are in Heard’s Washington Post Column are: (1) “I spoke out against sexual violence – and faced the wrath of our culture.” (2) “Then two years ago I became a public figure who advocated domestic violence, and I felt that full brunt of our culture’s anger at women speaking out.” (3) “I’ve had the rare opportunity to see in real time how institutions protect men accused of abuse.”

Judge Penney S. Azcarate, who is overseeing the case, ruled that the testimonies were enough to imply to readers that Depp had abused Heard given the couple’s publicized divorce (Another major decision that will become an issue on appeal the judge’s conclusion was that the op-ed constituted a republication of Heard’s 2016 allegations against Depp, allowing the actor to bypass the one-year statute of limitations for defamation in Virginia).

But the vagueness of the disputed statements, which don’t specify how or when it was abused, could make it harder for Depp to justify himself.

“When I’m on the jury, she’s just implying that at some point in the past she was subjected to some form of physical or maybe emotional abuse,” says Berlik. “She doesn’t really elaborate or say exactly what happened. If that’s the case, then all she really needs is evidence that at some point in the past he’s hit, pushed, or yelled at her in the face, or done something that can be considered abusive. I think Depp will have a hard time.”

For Depp to prevail, he must prove that Heard acted maliciously in her comments. That means showing that Heard lied about being a victim of abuse.

Another constraint on Depp’s chances of winning is an order that allows Heard to use an anti-SLAPP defense that forces dismissal of claims challenging potentially protected speech. The actor’s worst-case scenario is for the jury to throw his defamation claims out of the case and rule in Heard’s favor on her counterclaims.

Depp chose, at least in part, to sue Heard in Virginia, where neither side resides, because the state didn’t have an anti-SLAPP law at the time (it was allowed because the op-ed was printed at the Washington Post facility in Springfield, Va). In February 2020, the legislature passed a new law to introduce such a system.

McGill says both sides have proven to be somewhat unreliable narrators of their relationship, which complicates the case: “The only two people who know what happened are Johnny Depp and Amber Heard. There are all these incidents that have happened privately. Will the jury believe his presentation of the evidence?”

This article originally appeared on THR.com.