Depp vs Heard vs Depp
The sham trial of the century
I wrote this for another site a couple of days before the verdict came in
Neither Johnny Depp nor Amber Heard should succeed in their respective lawsuits. Depp’s claims of defamation based on Amber Heard’s 2018 Washington Post (WaPo) article are laughable and, in my opinion, malicious. Similarly, Heard will not succeed in her counterclaim because defamation by proxy (she clams Depp’s lawyers defamed her at Depp’s request) is notoriously hard to prove and I don’t feel she has done so here. Neither party has come out smelling like roses, but it is Heard who will suffer far far worse ramifications career wise and in my opinion her mental health is the most at risk out of this farce of a case. But more about that later
The Relationship
There’s plenty of different places you can find timelines of the Depp / Heard relationship and what came after. It’s worth reading through them if you need the details, but that’s not to be the focus of this post. Suffice it to say that the relationship seems fraught, the marriage even more so and it’s clear none of it ended well.
Depp and Heard finalised their divorce in January 2017 with Depp agreeing to pay Heard $7m and both releasing a joint statement where Depp stated “neither party made false accusations for financial gain” and Heard asserted that “there was never any intent of physical or emotional harm”. Both parties signed Non-Disclosure Agreements stating they would never talk about the matter to anyone again.
The UK Trial
On 27 April 2018, British tabloid newspaper ‘The Sun’ published an article entitled “GONE POTTY. How can JK Rowling be ‘genuinely happy’ casting Johnny Depp in the new Fantastic Beasts film after assault claim?”. The tabloid asserted Depp was a ‘wife beater’ and ‘perpetrator of domestic abuse’. The article was written by Dan Wootton, the Executive Editor of The Sun.
On 1 June 2018, Depp replied by suing News Group Newspapers (NGN) (who publish The Sun) and Wootton for libel. Depp asserted in his filing that it was Heard who was the aggressor in the relationship and had lied about the abuse as part of a hoax to make more money. Depp alleged that all the incidents Heard claimed were “He said; She said” and generally hearsay. He admitted to using drugs and alcohol but that these were not significant factors in the claims of abuse.
The UK has some of the most Claimant favourable Defamation laws in the world. When someone is accused of defamation in the UK it is up to the Respondent to prove that they have NOT defamed the Claimant. In addition, the more serious the claim of defamation, the higher the standard of evidence required. Effectively creating a presumption of guilt. In the UK, defamation cases are not heard in front of a jury. They are reviewed and ruled on by a senior Judge. Cameras are not allowed in court rooms in the UK meaning that the public may not watch the proceedings on a live stream.
NGN & Wootton listed 14 incidents of abuse in their response to the lawsuit. They claimed that they could prove them all. Mr Judge Andrew Nicol heard evidence in the case between 7 July 2020 and 28 July 2020. On 2 November 2020, Nicol rendered his judgement in favour of the respondents, NGN and Wootton.
Nicol’s judgement was excoriating of Depp and found that 12 of the 14 incidents provided by The Sun were substantially true and met the civil standard for evidence. Nicol agreed that the article had hurt Depp’s reputation, but that accusations were true, therefore libel could not exist. Further, he asserted that Heard’s career had been seriously damaged by Depp’s allegations. Nichol asserted that Depp had no reasonable prospect of the judgement being overturned on appeal, but gave Depp that right none the less. Depp petitioned the Court of Appeal to overturn the verdict.
The Court of Appeals heard the petition in 18 March 2021. The Appeals Court petition centred on discovery in the Virginia case where Depp’s team found that Heard had not yet paid the full amount of her divorce settlement, pledged to the ACLU. The legal team in the UK asserted that Heard’s claim she donated rather than pledged so much money to charity, resulted in a subliminal influence on the judge to find in the favour of NGN.
On 25 March 2021 Lord Justice James Underhill and Lord Justice Nicholas Dingemans denied Depp’s request to overturn the verdict. The Justices stated that Depp received a “full and fair trial” where Mr Judge Nicol provided “detailed and through reasons for all findings that had not been vitiated by any error of approach or mistake of law”. The Justices found the assertion Mr Judge Nichol was influenced subliminally by Heard’s charity to be “pure speculation” and - in their view - “very unlikely”… which is about as close to shade as Lord Justices throw.
The US Trial
Depp Vs Heard
On 18 December 2018, an OpEd appeared in the WaPo under Heard’s byline with the title “I spoke up against sexual violence – and faced our culture’s wrath. That has to change”. The article was published because Heard had recently been named a Women’s Rights Ambassador at the American Civil Liberties Union (ACLU). In the article Heard writes:
“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.”
“I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”
“I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion—and my life and livelihood depended on myriad judgments far beyond my control.”
On 1 March 2019 Depp filed suit in Fairfax Country, Virginia alleging Heard had defamed him via the WaPo article above.
These three assertions above - AND the title of the OpEd - form the basis of Depp’s defamation case. He contends that these statements identify him through implication and ascribe to him malicious motivations.
Heard’s counter suit
On 8 April 2020, The Daily MailOnline of the UK - as part of their coverage of the UK Trial - published an article quoting Depp’s lawyer Adam Waldman, where Waldman asserts:
“Amber Heard and her friends in the media use fake sexual-violence allegations as both a sword and shield depending on their needs. They have selected some of her sexual-violence hoax ‘facts’ as the sword, inflicting them on the public and Mr. Depp”
“Quite simply this was an ambush, a hoax. They set Mr. Depp up by calling the cops, but the first attempt didn’t do the trick. The officers came to the penthouses, thoroughly searched and interviewed, and left after seeing no damage to face or property. So Amber and her friends spilled a little wine and roughed the place up, got their stories straight under the direction of a lawyer and publicist, and then placed a second call to 911.”
“We have reached the beginning of the end of Ms. Heard’s abuse hoax against Johnny Depp”.
Heard claimed these statements were defamatory and made with actual malice and countersued Depp - on whose behalf Waldman was instructed - for libel.
Oddities
The actual trial itself is now a matter of public record, but I don’t plan of going over things point by point. But there are a few things that I feel are important for this case that didn’t get as much attention as they should.
Why is the trial being held in Virginia?
Both Depp and Heard live in California. They get most of their jobs in California. The people who make most of the decisions about the jobs they get live in California…so why is the trial being held in Virginia?
Fairfax County in Virginia is where the printing presses and the online servers are housed for the Washington Post, publisher of Heard’s story.
Virginia’s Anti-Strategic Lawsuit Against Public Participation (SLAPP) law is the most lenient in the country and indeed has only been enacted recently. Anit-SLAPP laws typically seek to identify and dismiss frivolous claims before they become expensive lawsuits thereby denying justice to people who are in unequal power relationships with the other side of the dispute. This is not the case in Virginia. Had this case been brought in California, Depp’s lawyers would have had to prove there was a reasonable chance of success in their claim for the whole matter to proceed. They don’t have to in Virginia.
In California, Heard’s lawyers would have been able to argue that her OpEd was a protected class of speech under the 1st Amendment on two grounds: It’s substantially a statement for the public good AND it was written on behalf of the ACLU (as it turned out, the story was basically written by the ACLU and simply approved by Heard after the content was watered down to be less explicit about who Heard was discussing. Virginia does not allow for this approach.
Virginia is very lenient on Statute of Limitations breaches. In California Depp’s legal team would have come up against the fact that there is a 1-year statute of limitations threshold for defamation. This means that anything that happens before that one year cannot be admitted to evidence. The Judge in the Virginia case (Penney Azcarate) ruled that Depp’s team could admit to evidence statements made by Heard during their divorce proceedings in 2016, finding that Heard had ‘republished’ her accusations in the WaPo article
What has to be proved?
Both Johnny Depp and Amber Heard are ‘public figures’. The standards of proof are different when public figures are involved. And also remember, there are two actions being decided simultaneously: Depp’s Defamation suit for $50m and Heard’s countersuit for $100m. Therefore, both must prove:
that the defendant made an assertion as a fact (wasn’t a joke or a sarcastic comment)
that the assertion was materially false (slightly inaccurate won’t cut it)
the statement was defamatory (would a reasonable person think a statement like the one made would cause harm)
it is about the person who brought the claim (you can’t sue on behalf of someone else)
the claim is made to a third party (such as being published in a newspaper)
the statement was not made in a ‘privileged’ setting (not to a Lawyer, a doctor or a priest or under protection of the law)
here was actual malice (not necessarily that the claim was made with the intent to be mean, just that the defendant knew the statement was false and they knew the statement would cause harm)
the statement caused actual or presumed damages (the plaintiff lost work, housing, relationships because of the statement)
What about the UK trial?
Depp lost the defamation trial in the UK, so this should be a slam dunk for Heard, right? Heard’s legal team certainly thought so and on 22 July 2021 they filed “Plea in Bar”, basically a motion to have Depp’s entire case dismissed. They made the claim on 5 grounds:
Collateral Estoppel: that the US trail was about the same facts; the facts were essential to the filing; the prior ruling was final and the parties are the same in both cases
Res Judicata: the plaintiff is attempting to relitigate the same cause of action or any part thereof
Comity: Virgina and the UK are so similar of jurisdiction that the ruling of the prior court should be upheld
The Uniform Foreign Country Money Judgement Recognition Act: Money has been awarded in a comparable court for the same case therefore the plaintiff should not get a second bite of the cherry
Chilling Effect: To allow Depp’s suit to continue would dissuade future defamations cases being brought as the unsuccessful party could just shop fir a better jurisdiction
On 17 August 2021, Judge Azcarate denied the request. Azcarate ruled that Heard’s lawyers had not proven any of the above and that the the two trials were sufficiently different that Depp’s suit could proceed.
Who decides?
A jury of 7 people. Unlike the UK system, Virginia requires defamation cases to go to a jury for decision. And they are only allowed to use the 8 criteria above. There’s no need for either side to prove the other is the ‘”real abuser”. No evidence, story or anecdote that doesn’t attend to one or all of the above statements should factor into the deliberation. The only thing to be decided here is whether Heard defamed Depp to the extent it caused him some form of harm; and whether Depp defamed Heard to the extent that it caused her some form of harm. Everything else is a side show. For Depp to win in his case, All 8 of the above things must be proven. Same goes for Heard
Career Impacts
Why is Depp really suing? Apparently it’s because Heard’s OpEd comments have destroyed his career. Depp claims that Heard’s accusations cost him his role as ‘Captain Jack Sparrow’ in the “Pirates of the Caribbean” franchise. His agent gave testimony that Heard’s accusations have soured other studios on booking him for block buster roles.
But a Daily Mail article from October 2018 (a month before Heard’s OpEd) indicates that Depp was going to be dropped from the franchise anyway. The truth is that Depp’s career has been in decline since at least the release of “The Lone Ranger” in 2013.
The Lone Ranger was also a Disney movie and also directed by “Pirates” helmer Gore Verbinski. Depp began shooting the movie in February 2012 just after he began dating Heard. Depp was well and truly off the wagon by that point, heavily using alcohol and drugs and he proved to be unreliable on set.
Even though Depp Was fired from the Pirates franchise, he still gets to keep his $22.5m fee for the 6th movie, which would have been the last in the series. Depp misses out on his portion of profit participation but given how the 5th movie in the series played out, that probably wouldn’t have been a huge amount anyway.
Looking at Depp’s IMDb page, he has 23 projects in development – All of which are owned by his production company “Infinitum Nihil” and Depp is attached as Executive Producer. 18 of the projects are listed as ‘Development Unknown’ which indicates these projects may go nowhere, but as the options cost money, there’s a desire to achieve a return.
Depp has 4 movies at script stage where writers have been hired, directors attached and he is the EP and is likely to star in each project. Projects that get to script stage have a 50/50 chance of happening.
Depp is also in Pre-Production for a movie being produced in France. That is 100% happening and shooting is scheduled to start in and around Paris in August.
Heard, on the other hand, has 2 movies in post production: Aquaman 2 and a low budget independent Italian movie titled “In the Fire”. She has one movie in Pre-Production, a low budget Romance Thriller called “Run Away with Me”. She’s the only actor attached, there is no director and it looks likely that it won’t go anywhere. And that’s it. Nothing more on her slate.
So who’s career has been damaged more by this shit show?
The Social Media Trial.
The real goal of this defamation lawsuit is to put Heard on trial in the court of public opinion. Why? It’s the only way Depp and his team know how to rehabilitate his image. By throwing as much shit as they can at Heard, they hope some will stick and by painting her as the real villain, they hope people will feel more sorry for Depp. In feeling more sorry for Depp they’ll be more likely to go see his next movies and the big studios will go back to hiring him.
And it’s working. The real trial is being conducted via TikTok, Instagram and YouTube. Heard’s social media expert Ron Schnell gave probably the best testimony in the whole trial and demonstrated conclusively that there was a co-ordinated online campaign to turn public opinion against Heard and for Depp. The #JusticeForJohnnyDepp hashtag has been used by millions of tweets, experiencing huge spikes after the comments made by Adam Waldman that form the basis of Heard’s countersuit. The same hashtag on TikTok has been seen over 3.5bn times.
What we are seeing is the inevitable backlash against the #MeToo movement. What’s really depressing about it is that it’s so predictable and that it’s so effective. It baffles me that so many people are falling for what amounts to a classic DARVO strategy – Deny (Depp swears on a stack of bibles that he is innocent and never did the things he’s accused of, despite the evidence); Attack (Depp sues Heard for defamation creating a forum for his grievance); Reverse the roles of Victim and Offender (Depp is trying to cast himself as the victim of Heard’s abuse, her purported gold digging and a campaign to ruin his career). It’s maddening to watch and I have found myself repeatedly screaming at Heard’s pack of useless donkey lawyers, hoping they can hear me through the TV.
Conclusions
We choose to believe some women and not others. We demand that the women who talk about domestic abuse, sexual violence, rape and institutionalised misogyny be perfect. Amber Heard certainly isn’t perfect and nor has she ever claimed to be. Sometimes she can seem scripted and insincere and some of her claims have turned out to be misremembered or exaggerated. Does that mean she hasn’t experienced domestic abuse at Depp’s hand or others? Does being abused in the home require you to not fight back? Of course not, yet when it is shown that this is what Heard has done on many occasions, suddenly, she is characterised as the abuser.
What depresses me the most is the young women who jump on the Depp bandwagon. Yes, he was once a dreamboat. I remember him in 21 Jump Street (the original 1987 TV show, not his cameo in the surprisingly good 2012 remake) and feeling some stirrings in places I had been told it was wrong for a boy to stir for other boys. And I’ve been a huge fan for most of his career. But the drugs and the booze and everything else have caught up with him. He’s a shadow of his former self and has shown that he’s not above resorting to horrible DARVO style gaslighting to hang onto the limelight longer.
On a stark legal interpretation, Depp should lose this defamation suit. He hasn’t come close to proving any of the 8 criteria needed to in the claim, even in the SLAPP paradise of Virginia. Heard should also lose her suit. Defamation through a third party is hard to prove and her team of muppets failed spectacularly to prove Depp instructed Waldman to do what he did.
But regardless of what happens, Johnny Depp will walk away the ‘winner’ in this clown show because he has sided with InCels, Meninists, Men’s Rights Activists, QAnon trolls and the gutter filth of the internet. And Heard will pay the price. Just like every other woman before the #MeToo movement took off.
I guess we’ve all had a chance to see the full force of our culture’s wrath for women who speak out. We’ve all had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.