What Johnny Depp Must Prove in Order to Prevail (and Why It’s an Uphill Battle)

By Rachel Puryear

If you’ve been on social media at all in the recent weeks, you’ve no doubt heard about the bizarre and even sordid (poop in the bed!) accusations flying between mega-star Johnny Depp, and his ex-wife Amber Heard. If popular commentary is any indication, though, most people – regardless of who they’re rooting for – misunderstand the nature of these legal proceedings, and what must be proven in order for either party to prevail.

As someone with a background in legal consulting and mediation, let me weigh in with a few clarifications:

Drawing of Johnny Depp, with a hat and long hair. By E. Diop.

Defamation – Not Domestic Violence – is the Central Issue in These Proceedings

Johnny Depp’s case against Amber Heard is not an allegation of domestic violence against him – at least, not directly. Instead, the Pirates of the Caribbean star’s lawsuit against his ex-wife is for damages arising out of alleged defamation – he claims that Heard damaged his reputation and that she did so by falsely claiming that he abused her. He wants monetary damages from her to compensate him for losses. So basically; Depp is saying that Heard said false things about him, it’s cost him a lot of money, and he wants literal payback from her.

Accordingly, while claims of domestic violence between these parties are related to the proceedings, they’re related indirectly. The core issue is defamation.

Defamation means ruining someone’s reputation by saying or publishing false things about them. Depp claims that Heard damaged his reputation; and therefore, also his career and earning potential; by falsely portraying him publicly as having abused her during their relationship.

The statement that Heard made which gave rise to this lawsuit was in an article where she referred to herself as “a public figure representing domestic violence”. Nowhere in or along with that statement does she refer to Depp, nor does she give any other specific indication that Johnny Depp perpetrated domestic violence against her.

The lack of a specific reference to Depp in Heard’s statement poses a big problem for Depp in proving his case. Defamation requires clear statements of falsehoods presented as facts about the plaintiff – not feelings, not opinions. In my own opinion, Heard’s statements – whether she made them in good faith or not – are too vague to support findings of defamation of any one particular individual, be that Johnny Depp or otherwise.

Of course, the reason why Heard is nonetheless defending her statements by claiming that there was in fact abuse, is that truth is a defense to claims of defamation. If she can demonstrate that what she (might have) said about Johnny Depp are true, she’s not liable for defamation; even if the consequences of her statements are harmful to him. Pursuant to Constitutional interpretations of the First Amendment and how it squares with defamation laws; people can tell devastating truths, they just cannot tell devastating lies.

In his allegations, Depp’s claims that Heard was abusive to him instead are about undermining statements she may have made claiming that he was abusive to her.

In My Professional Experience…

It seems likely, based upon statements and recordings each has presented, that Depp and Heard had a troubled and volatile relationship. Depp’s struggles with various addictions over the years are well known publicly, and clinical psychologist Dr. Shannon Curry gives a fascinating and informative account of Heard’s mental state and highly likely personality disorders. Both parties’ mental health struggles are the kind that can easily fuel heavy conflict and toxic behavior in relationships.

Such dysfunctional behavior can be deeply damaging and hurtful, even if it falls short of various definitions of abuse. Sometimes, both people involved in such a dispute as the one giving rise to this lawsuit can genuinely feel like they were a/the victim, and yet also be blind to the impact of their own behavior. This phenomenon is quite common, but this particular trial is unusually sensationalized. This is a complicated and highly emotional subject – legally, psychologically, socially, and personally for many people.

Johnny Depp is Not a Typical Plaintiff – He’s a Public Figure

First, what is a “public figure”? A public figure is someone who has placed themselves in the public spotlight – this includes elected public officials, celebrities, and others who are famous and widely recognized because they have placed themselves into the public spotlight through their own activities. “Public figure” is as opposed to a “private figure”, the latter referring to those who are not public figures.

As Johnny Depp is a mega-celebrity with many decades of famous work, and everyone knows who he is, he is clearly a public figure. Accordingly, he will be held to the public-figure standard in a defamation lawsuit.

Public figures are treated differently than private figures when it comes to defamation lawsuits. Public-figure plaintiffs have a higher bar to meet to prove defamation than private-figure plaintiffs do – not only must they prove that the defendant lied about them, but they must prove that the defendant lied with actual malice. The defendant cannot have simply been negligent with what they said about the plaintiff; they must have lied about the plaintiff on purpose, and with the intent to harm the plaintiff and their reputation.

This public-figure distinction is, for instance, how tabloids are able to publish lots of ridiculous material about famous people, and avoid lawsuits over such content.

It may seem unfair that public-figure plaintiffs have a harder time proving defamation, and that a defendant is more likely to prevail where someone they might have harmed and lied about is famous. However, the reasoning for this differential is that a public figure has a much greater ability than a private figure to publicly respond to statements that others have made about them, and to tell their own version of events in a way that will reach people far and wide.

In fact, the widespread and vocal support Depp has received on social media is a pretty strong testament to the power of having an established fan base, and several famous and well-loved celebrities willing to speak out on one’s behalf. A private figure would not wield such an advantage in public perception, and therefore a public figure does indeed have an advantage in being already well-known to most people in comparison to almost any private figure.

So, in light of Johnny Depp being a public figure; let’s look again at the statement in question for this lawsuit, where Heard referred to herself as “a public figure representing domestic violence”. Again, the vagueness of that statement makes it even harder to convincingly state that it was malicious, and intentionally made to ruin Johnny Depp’s reputation. Therefore, Heard’s statement probably does not meet the criteria for either being a defamatory statement against Johnny Depp, nor for being a malicious statement. Accordingly, it will be difficult for Johnny Depp to meet his burden of proof in this lawsuit.

That being said, you never know what juries will do, and Johnny Depp probably has a much larger fan base than Amber Heard since he’s known to more generations, as he’s a couple decades older than her and has been famous much longer.

Regardless of public sentiment, though, I’m a believer in proving one’s case. Many other people, though, go more based on feelings in how they form opinions as to what an outcome should be. Sentiment could give Depp a win anyway, even if the facts don’t really measure up. That factor often produces incorrect and unjust results on a general level, but it’s a reality of the legal system.

Or, that might not happen – Depp already lost one previous libel suit against another news source, after a British court found that the domestic violence claims had merit. We’ll all just have to wait and see. Hopefully, a just result will prevail, regardless of whom that favors.

Thank you, dear readers, for reading, following, and sharing. Here’s to free speech, but also to thinking carefully about what we say.

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