Dueling Defamation Claims Go to Trial – The Hollywood Reporter

In December 2018, at the height of the #MeToo movement, Amber Heard published an op-ed in the Washington Post calling out norms that prop up domestic abusers and knock down their victims. She rehashed in the column claims she made two years earlier about enduring extensive abuse earlier in life, implying that her ex-husband Johnny Depp beat her without explicitly naming him in the piece.

Chaos ensued. Disney dropped Depp from his leading role as Captain Jack Sparrow in the multibillion dollar Pirates of the Caribbean franchise just four days after the op-ed ran. Depp sued Heard for $50 million two months later, her of defaming him by describing herself as a domestic abuse survivor. This was followed by Heard filing a $100 million counterclaim alleging Depp had coordinated a campaign aimed at smearing her.

The case is now set to go to trial on April 11 in Fairfax County, Virginia. Both sides have at least partially staked their careers and reputations on 12 jurors who’ll assess their credibility in what’s essentially a “he said, she said” case. In particular, for Depp, this is his last chance in court to vindicate himself as he claims that he’s being boycotted by Hollywood over what he’s called a hoax orchestrated by his ex-wife.

“You don’t get these huge libel trials,” says Claire Gill, an attorney who’s represented high-profile celebrities and politicians in defamation cases. “It’s just really rare for someone to take on this level of risk. You might say that suggests that possibly he’s telling the truth. The perception is ‘Why would anyone do this unless what’s being said about him is untrue.’ Others would say he’s desperate and has no choice to follow through. Either way it’s really unusual.”

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

Heard proceeds to walk back her accusations during divorce proceedings in which she got a $7 million settlement. The pair said in a joint statement at the time, “Neither party has made false accusations for financial gain. There was never any intent of physical or emotional harm.”

But the dispute — and animosity — was far from over. shortly after The Sun ran a piece calling Depp a “wife beater,” Heard published a Washington Post op-ed titled, “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.”

A UK court found in that case that The Sun had showed that its claims that Depp beat Heard were mostly true. It sided with the publication that 12 of 14 meaningful incidents or assault were proven.

In March 2019, Depp sued for defamation in Virginia state court. He claims the column depended on the false premise that he abused her, claims that he was actually the victim. He emphasized available evidence supporting his allegations, including eye witness accounts and surveillance videos that he said showed that Heard was uninjured shortly after she publicly claimed to be hurt in a violent altercation with him.

Heard has detailed numerous instances in which she says she was abused, most commonly when Depp was allegedly intoxicated by drugs and alcohol. One of the incidents allegedly took place in December when she Depp she was going to leave him. He proceeded to hit her and push her face into a mattress, the court filing claims. “For a while, I could not scream or breathe,” she wrote in a court declaration. “I worry that Johnny was in a blacked-out state and unaware of the damage he was doing, and that he could actually kill me.”

One of Depp’s primary contentions has been that Heard faked her injuries and lied about being abused to boost her career. He makes sense that Heard arrived to court in May 2016 in his lawsuit against The Sun in which she testified with “painted-on bruises that witnesses and surveillance footage show she did not possess each day of the preceding week.”

So how will jurors assess the trustworthiness of two people known for their acting prowess who’re offering conflicting accounts of their time together?

With their gut, according to legal observers.

“As for credibility, just has their own way of everyone that of witnesses,” says Virginia defamation attorney Lee Berlik. “Do they fidget with their fingers? Do they look at you? Are they attractive? Jurors are just making observations as to whether they come off as trustworthy or believable or not.”

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

Heard has fought to keep out evidence that she didn’t actually donate the whole of her $7 million divorce settlement to the Children’s Hospital Los Angeles and ACLU. Heard has said that she’s made to pay the full amount over 10 years. Her lawyers have claimed that she’s donated at least $950,000 to the ACLU and $850,000 to the CHLA thus far through anonymous donors. Heard’s lawyers argue it’s relevant to the core issues of the case and that it will prejudice jurors. Depp counters that it affects her credibility.

While the central question in the case is whether Heard was abused by Depp, the allegedly defamatory statements in Heard’s Washington Post column are: (1) “I spoke up against sexual violence—and faced our culture’s wrath.” (2) “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 spoke out.” (3) “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”

Judge Penney S. Azcarate, who’s overseeing the case, ruled that the statements were enough to imply to readers that Depp abused Heard in highly publicized divorce (Another significant ruling which may become an issue on appeal was the judge’s conclusion that the op-ed constituted republication of Heard’s accusations against Depp in 2016, which allowed the actor to get around the one year statute of limitations for defamation in Virginia).

But the vagueness of the specify statements, which don’t how or when she was abused, may make it difficult for Depp to vindicate himself.

“If I’m on jury, all she’s implying is that at some point in the past, there was some form of physical or maybe emotional abuse by him to her,” Berlik says. “She doesn’t really get into it or say exactly what happened. If that’s the case, then all she really needs is any evidence that, at some point in the past, he hit her, pushed her, or scream in her face or did something that can be regarded as abusive. I think Depp will have a tough time.”

For Depp to prevail, he’ll have to prove that Heard acted with malice when she made the comments. This means showing that Heard lied about being a victim of abuse.

Further blunting Depp’s chances at victory is an order Heard to using an anti-SLAPP defense, which compels the dismissal of claims challenging speech that might be protected. The actor’s worst case scenario involves the jury tossing his defamation claims out of the case and finding in favor of Heard on her counterclaims.

Depp at least partially chose to sue Heard in Virginia, where neither side resides, because the state at the time didn’t have an anti-SLAPP law (it was allowed because the op-ed was printed at the Washington Post’s plant in Springfield, Va). Lawmakers in February 2020 passed a new statute instituting one.

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

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