By Zachary Margulis-Ohnuma
The jury has spoken and the sexiest pirate on the planet deserves $10 million because his ex-wife wrote in the Washington Post that she is a “public figure representing domestic abuse.” That comes out to $2 million dollars for each false-and-defamatory word.
But wait, there’s more!
The ex-wife, rather an attractive super-heroine warrior herself, was awarded $2 million because the pirate had his former lawyer call her allegations “a hoax.”
What does the First Amendment, perhaps the greatest innovation of the American experiment, have to say about all this?
A lot. Let me explain. It is going to take a minute; stay with me.
In our system, American states are sovereigns that derive their power from “the people.” But the people’s power to legislate is limited by a universal conception of freedom that even the legislature of a state cannot violate. That includes the freedom of speech, articulated in the First Amendment as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (For nitpickers, the Fourteenth Amendment—passed after white traitors controlling Southern states rose up against the federal government to protect their right to enslave people of African descent—incorporates the freedom of speech within the general principle that states may not “deprive any person of life, liberty, or property without due process of law”).
Freedom of speech under the First Amendment means you can pretty much say what you want but, like all principles, it has its limits. In particular, the old idea of defamation (libel in this case; slander when the statement is spoken rather than written) is a limit on speech: freedom of speech does not protect you if you make a false and defamatory statement that hurts someone if you actually know it is false. So you cannot say, for example, “Amber Heard threw a bottle at me” if Amber heard did not really throw a bottle at you because a statement like that hurts Amber Heard and is false.
But you can make more general statements, even if they are not very nice. Opinions, unlike facts, enjoy absolute protection, but facts are not protected from suit if they are both knowingly false and harmful. So the Heard-Depp trial in Virginia state court turned on the truth or falsity of the facts alleged, which is why the parties fought so hard. The question for the jury was, did Amber Heard falsely write that Johnny Depp abused her?
But the case—as I predict will be found on appeal—should never have gone to the jury because that is not what Heard wrote and, in any event, “domestic abuse” is a vague term that can encompass many scenarios.
Heard wrote that she was “a victim of domestic abuse,” suggesting that Depp was the abuser and that she was abused. That statement falls short of a fact; it is more a conclusion or a characterization. It is the kind of thing that a trial lawyer might say in a closing argument but not something a fact witness would be permitted to say in court. For purposes of the profound freedom guaranteed by the First Amendment, Heard’s statement was not something verifiable that can constitutionally form the basis of a libel suit.
Sure, Amber Heard thinks of herself as a victim of domestic abuse. She got into fights with her husband that got physical. She thought she was justified in what she did to that handsome pirate. She has a right to think of herself as a victim and to think of Depp as the aggressor and, let me underscore this, she has every right under the Constitution to express her belief or opinion. She can’t say Johnny hit her if he did not. But her statement “I am a victim of domestic abuse” is protected speech. Whoever wants to say should be constitutionally permitted to say it without fear of being sued, no matter who there husband is.
So what happens next? I have not studied the docket, but presumably Judge Penney Azcarate at some point ruled that Heard’s opinion piece was enough to go to the jury. Her lawyers can ask the judge to revisit that holding. If she doesn’t, Heard can go to a higher Virginia court and—here’s where it gets interesting—since the question of whether the First Amendment protects Heard’s statement is a matter of federal constitutional law, the case could end up in the United States Supreme Court which has the last word on all federal legal questions.
In the meantime, though, Johnny Depp won a resounding victory before the jury and in the court of public opinion. The jury’s finding that Amber Heard’s statement was false cannot normally be questioned on appeal. That factual issue was resolved by the jury in Depp’s favor: the jury found by a preponderance of the evidence that Heard’s claim to be a victim of domestic abuse was false. Unless there was something egregious, the jury’s factual conclusion is not likely to be questioned.
Let me make one last point. As a journalist for seven years, I was twice sued for libel and both times the well-funded plaintiffs ended up backing down. I studied libel law and the First Amendment both in journalism school at U.C. Berkeley and at N.Y.U. Law School. I have proudly represented well respected journalists when they have been threatened or sued or just needed legal advice. I have represented women who were victims of sexual abuse or violence at the hands of wealthy men. What I was trained to say and what I do say to people who want to sue for libel is this: truth is the most expensive defense. Libel suits are awful for both parties, who are raked through the mud. It would have been easy for Johnny Depp to show that Amber Heard’s statement was not defamatory. It became a big deal, six weeks in court, to show that those five words were false, a necessary element of the defamation tort. So, at the end of the day, the case was not really about the net $8 million that Johnny Depp won from the aquatic warrior he was once married to. It was really about proving his factual case—that Heard’s words were false—both in court and in public. The televised trial helped him do that. The cash is just a cherry on top of the sundae of glorious vindication, a glossy piece of fruit he probably won’t get to keep and that be probably does not really need to eat anyway.