Fine Line: The Distinction of Defamation and Free Speech Through the Lens of the Depp v. Heard Trial

Depp-Heard verdict will hold back #MeToo movement, advocates fear. Image via the Washington Post.

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Depp v. Heard (2022) was an unprecedented and fortifying pop culture event that left many Americans questioning the recently successful #MeToo Movement. People worldwide were live-streaming the trial during its peak amid the fallout of the COVID-19 pandemic. Interested parties in both #MeToo and the nascent counter movement tuned into TikTok and YouTube creators who provided unsolicited legal commentary (minus the legal degrees) about the trial. But what mattered in this case wasn’t the plaintiff or the defendant—it was the messages each represented, and how they were deciphered and diffused into public opinion via the internet. Of course, the internet has not yet developed any due process or real political impetus on the case itself. 

Johnny Depp, an acclaimed actor and public figure, filed this infamous defamation lawsuit in 2019 against American actress Amber Heard. Depp accused Heard of causing harm to his reputation when she wrote her 2018 op-ed entitled “Amber Heard: I Spoke Up Against Sexual Violence—and Faced Our Culture’s Wrath. That has to Change.” Defamation suits rely on four main factors to be proven by the plaintiff: a false statement purporting to be fact, publication or communication of such statement to a third party, fault amounting to negligence, and damages, or some harm caused to the reputation of the person or entity who is the subject of such statement. The jury decided that Heard had defamed Depp because she knowingly acted with malice when writing her op-ed. The jury came to a unanimous decision in 2022 and asserted Heard “could not substantiate her allegations” against Depp, thus finding her liable for defamation. But Heard had counter-sued in 2020—also for defamation—for statements made by Depp’s attorney that Heard’s allegations were “a sexual violence hoax.” The jury ruled in Heard’s favor on this count and awarded her damages for the defamation Depp committed toward her via his attorney. Thus, this case largely hinged on the nature of the accusations made by each party and whether or not those claims had real merit. Depp’s camp persistently and ruthlessly portrayed Heard as a liar, hence the countersuit, and Heard vehemently stood by her victim narrative. 

#MeToo started in 2017 when Alyssa Milano, another American actress, published on Twitter (now X) that she, alongside other women who had already come forward with allegations publicly, had experienced sexual abuse from Harvey Weinstein. Essentially, it was designed as a platform for (mostly female) victims to speak out against their abusers. Note that internet users essentially viewed many of these claims on Twitter as indisputable facts. The victims faced little to no backlash or further questioning in response to the claims they made. Rather, they were honored for the bravery they demonstrated by speaking up about such a sensitive topic. But this era of pro-victim support came to a screeching halt as the Depp v. Heard trial unraveled. The jury’s ultimate decision was a devastating shock to many victims, survivors, and advocates familiar with the #MeToo movement, as it essentially nullified the serious allegations Amber Heard had levied. In the aftermath, many advocates argued that the decision set the movement back by undoing practically all of the trailblazing it originally sparked.

The #MeToo movement was still relatively new when Heard wrote her op-ed. Heard and her attorneys frequently reminded the jury of what was at stake if they decided in Depp’s favor: the message sent to victims everywhere would be that they should not speak up. While the narrative of Heard, as determined in her countersuit, as a victim was not entirely false, the way she abused and acted in her role as a victim could give rise to further questions as to how a victim should go about presenting their allegations. 

The internet, meanwhile, blew these opposing sides way out of proportion, with little regard to the due process being administered in the courtroom. Millions of people on the internet were using the pop-culture cyclone that was Depp v. Heard to turn profits and generate careers. Camila Nelson, an honored social science professor who authored “A Public Orgy on Misogyny,” studied one such legal commentator: Emily D. Baker, one of various other social media figures that garnered hundreds of thousands of followers as the trial played out. 

The internet played such a massive role in this trial that it ended up re-shaping expectations for reactions to women who speak out about abuse. Nelson, in her research, also quantified the “reactionary gender ideologies” that were not, in fact, “driven by formal political actors” as they traditionally have been. The court of public opinion, as an explicit rejection and counter-culture to the #MeToo movement, was inundated with pro-Depp content on social media. Ben Shapiro’s right-wing news platform the Daily Wire reportedly spent tens of thousands on “anti-Amber” social media advertising. Similarly, the online marketplace Redbubble was flooded with a range of trial merchandising, including “Don’t be an Amber” and “Team Johnny” t-shirts, as well as “mega-pint” and “muffin” stickers. Even in more “niche” outlets such as Etsy, coffee mugs featuring the “Amber Turd” and “Me Poo” hashtags were offered for sale. Nelson argues misogyny was commodified as a result of this trial: “[I]t began to circulate as a tradeable commodity in a digital marketplace in which emotions such as horror and outrage could be harnessed and converted into cash.” The online culture and media attention the trial gained were massively influential for all viewers, but spoke personally to those who could relate to ideas of victimization—to those who were horrified by the reality of many abusive actions that took place during the trial. 

Evidently, abuse allegations found within the trial itself, and also in direct relation to indecent internet reactions, have the power to manifest themselves in unreasonable, and predominantly misogynistic, social structures. 

Amber Heard’s case was significant because she not only came forward with her extensive allegations of sexual and domestic violence, but also became a champion for the #MeToo cause and similar women’s rights movements. For Heard, being a prominent public figure constitutes raising publicity and generating public attention as part of her job. Like every celebrity, Heard makes a living off of being in the spotlight, whether her image is ‘favorable’ or not. Heard wrote her op-ed at a crucial time in the #MeToo movement, but also at a crucial time in her career. Similarly, following her public allegations against Mr. Depp, Heard became the first actress named a Human Rights Champion of the United Nations Human Rights Office, an ambassador on women’s rights at the ACLU, and hired by L’Oreal Paris as their global spokesperson. All of these powerful positions placed Heard as a woman immune to questioning; she was a known victim and a proud one at that. 

Yet, throughout the trial, it was overwhelmingly evident that the public was trying to debase Heard’s claims. Many perceived Heard and her legal defense as “…Positioned as an attempt to undermine the rights of ‘real victims.’” This, for many pro-Depp fans (the majority of the internet), is a fair characterization of the trial and its outcome. 

On a larger scale, Heard spread awareness by standing in solidarity with other victims of domestic violence—which is a positive and reasonable message for her to send, regardless of whether or not her claims were true. But capitalizing on her (now decidedly false) allegations in a way that ultimately propelled her career cannot be reasonably justified. There is no American jurisprudence to solve this unprecedented issue aside from what will come out of the unavoidable defamation lawsuits that future outspoken victims will have to endure.

Kara Alaimo, a professor at Hofstra University, wrote that Heard “Claimed she was a public figure representing domestic abuse…now she has become a public figure representing the societal abuse toward women who dare to speak out.” But Heard did not just speak out, she used her position as an honored and championed victim of sexual and domestic violence as a vehicle to propel her career as a public figure. If it was found Heard was telling the truth in her allegations against Depp, even though the jury decided otherwise, her profiting off of her own victimization would still be cause for concern. 

This is not to say all victims should be scrutinized or have certain aspects of the abuse they endured trivialized in a court setting—they should be allowed to come forward with allegations that are reasonable and not intentionally published in return for some kind of monetary or personal gain. The only gain a victim should obtain from announcing their experience is peace of mind through knowing their abuser cannot escape what they have done, and will ultimately face repercussions as determined by the law. Alaimo writes, “…How very far we have come from that glimmer of hope just a few years ago that the #MeToo movement might make it easier for victims of abuse to hold their perpetrators to account.” Maybe the results of this trial and the turning of public opinion did dim the light on the #MeToo movement, but it also opened the floodgates for a new era of legislation surrounding the publishing of victim allegations. 

The implications of this trial leave us on the slippery slope of actually supporting victims by not trivializing their allegations via hard-set lawsuits versus actively tampering with the way they might go about sharing the fact that they have been abused. Though due process is applicable in all such cases, so are the First Amendment rights of victims who make such allegations. Depp v. Heard was an interesting case in which the court, mirrored through online social discourse, supported the actor (no pun intended) who did not publicly emphasize or capitalize on the abuse he faced. The stark distinction between the two leading up to the trial was Heard being a champion of domestic and sexual violence survivors, and Depp trying to pursue career opportunities (though he was cut out of various roles because of the Heard’s allegations). 

The trial made it clear that both Heard and Depp faced abuse from one another. What is not so clear is how the law should pertain to victims making allegations of abuse that have not yet received due process and, in some cases, capitalizing on such allegations. Whether or not Heard was actually a victim of Depp’s abuse, she should not have had the upper hand in the years leading up to this case—which both demeaned and ultimately hindered Depp’s career. Nonetheless, the law should protect victims’ public statements if they are found to have real, determined merit. Nothing should prohibit a proven victim from claiming their victimhood—silencing victims is not the right message to take away from Depp v. Heard. Allowing due process for both sides of the bench and still promoting free speech is exactly what the millions watching this case should have on their minds.  

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This article was edited by Olivia Mascia.

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