From his office window, attorney Jon Katz has a direct view of the Fairfax County Courthouse in Virginia, and for the past few weeks has watched fans gather outside to catch a glimpse Johnny Depp.
The lawsuit between the ‘Pirates of the Caribbean’ star and his ex-wife, Amber Heard, is the most significant case Katz can remember in 20 years of criminal defense practice in the region. He also does free speech work – clients have included strip clubs, adult toy stores and the Westboro Baptist Church – so he has a professional stake in the outcome.
“I want a verdict against them both,” he said.
Depp and Heard are suing for defamation. Depp alleges Heard destroyed her career when she accused him of domestic violence. She disputes his claim that his allegations are a hoax.
The trial has become a digital media spectacle. At one point during Heard’s May 4 testimony, 587,285 people were watching the Law & Crime live stream. The video coverage has been a boon to the field of amateur forensics, as clips analyzing Heard and Depp’s testimonies have been remixed as TikToks and Instagram Reels.
But the case is not so interesting to First Amendment scholars. According to several experts, it is unlikely to set precedents or become a milestone in the history of defamation law.
“It looks like a pretty basic libel suit,” says UCLA law professor Eugene Volokh. “It all depends on the facts. I haven’t seen anything that would actually affect the law.
Heard published a op-ed in the Washington Post in 2018 in which she alluded to the domestic violence allegations she made against Depp during their divorce two years earlier. She did not name Depp or reiterate any of the allegations. But she aligned her experience with the #MeToo movement.
Depp’s lawsuit was allowed to proceed on the doctrine of defamation by implication, which holds that seemingly neutral and accurate statements can still make a defamatory insinuation. Heard’s claim that she “felt the full force of our culture’s anger for women speaking out” has been interpreted to imply that Depp had in fact abused her, although she did not quite said that.
Libel by implication goes back at least to the novelist James Fenimore Cooper, who – tracing a downward arc from literary fame to the litigious crank – sued a series of editors in the 1840s. One replied that he should take his complaint to court somewhere.
“He won’t like to bring it to New York, because we’re famous here, or to Otsego, because he’s famous there,” wrote editor Horace Greeley.
The remark was taken to imply that Cooper’s poor reputation in his hometown was deserved – and it was considered by a New York court to be implied defamation.
In 2019, the Virginia Press Assn. asked permission to file a brief in the Depp-Heard case, warning the court against broadening the doctrine.
“Broad applications of the doctrine of defamation by implication may chill the free press as it would force publishers to consider all potential defamatory implications which might possibly be extended from otherwise accurate statements,” wrote the lawyer for VPA Jennifer Nelson, adding that the risks could be particularly acute with complaining celebrities.
Judge Bruce White denied the VPA’s request and allowed Depp’s lawsuit, citing long-standing Virginia case law.
Regardless of the jury’s decision, the case doesn’t worry Jack Browning, an attorney with Davis Wright Tremaine LLP who represents media clients including the New York Post and “Last Week Tonight With John Oliver.” He sees the Depp-Heard affair as sui generis, and without many great lessons.
“Will this case be widely applicable to media clients?” he says. “It’s not obvious that will be the case.”
The lawsuit touched on the #MeToo movement, domestic abuse and celebrity decadence. Basically, it comes down to a couple publicly questioning their divorce.
“This lawsuit was filed for Johnny to win the court of public opinion,” says entertainment attorney Mitra Ahouraian, who followed every minute of the proceedings. “He uses the courts as a platform to have his case heard.”
But will it work?
“Neither side is going to win,” she said.
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