By Rachel Puryear
In the wake of a court victory for Johnny Depp against his ex-wife Amber Heard – one which raised First Amendment concerns from many legal experts, including my own; many now wonder if the verdict spells doom for the #MeToo movement, and whether it will chill speech of ordinary survivors everywhere.
In short, not so fast.
The concerns are understandable, and indeed these events go to show how unpredictable litigated proceedings can be (as well as the impact of stardom). But this was no ordinary case, and does not necessarily indicate how other lawsuits will play out – if those lawsuits even occur.
This Case Does Not Set a Precedent – Juries Don’t Make Law
You may have heard that outcomes of trials produce future case law. There is some truth to that – however, precedents come from published cases only. Published cases are those which were appealed and decided in higher-level courts by judges – not juries – and then selected for publication. Juries decide facts only, and cannot make binding laws.
The findings of Depp v. Heard do not create any authority over future cases – it’s not a published case, nor is it eligible for publication.
There’s a Reason Depp Brought the Case in Virginia – It Has an Unusually Weak Anti-SLAPP Statute:
A Strategic Lawsuit Against Public Participation – also known as a SLAPP suit – is one brought in order to stop a defendant from saying things that the plaintiff doesn’t want them saying.
Many plaintiffs who bring SLAPP lawsuits don’t even expect to win, as the case typically lacks legal merit. Instead, the goal is to make it so expensive and cumbersome for the defendant to fight the lawsuit that they retract their statements – even if they were acting lawfully in the first place – because they cannot afford to continue the lawsuit.
In most states, laws exist to discourage SLAPP lawsuits – these are called anti-SLAPP statutes. These statutes can include provisions for the initial defendant to sue the person who brought the SLAPP lawsuit in the first place, and seek damages – also known as “SLAPP-back” laws.
Neither Depp nor Heard lives in Virginia, and the state does not have special significance for this case. However, it was an attractive venue for Depp, as he would not have been able to bring a lawsuit or succeed nearly as far in most other states – due to most other states having stronger anti-SLAPP protections than Virginia.
Depp’s lawyers were nonetheless allowed to bring the case in this venue, because a Virginia paper had published Heard’s op-ed which gave rise to the lawsuit – despite it being a weak argument for venue in Virginia. Appropriate venues are generally where either the plaintiff or the defendant lives, or where (the most of) the events underlying the lawsuit took place.
Accordingly, the same suit that Depp brought in Virginia could not be brought in most other states – or at least it wouldn’t get far.
The suit would have been dismissed early on elsewhere because the op-ed giving rise to the suit was too vague and unlikely to support the very high burden of proof required for a celebrity defamation claim – as well as the existence of plenty of evidence to support mutual abuse, which defeats a defamation claim about abuse.
In law, pursuing a venue that’s more strategically favorable to a party, despite it not being the logically appropriate venue; is known as “forum shopping”. Judges are supposed to see through that, and not allow it.
That’s what happened here, and it’s another reason why this case is unusual.
A Trial Televised Live is Very Unusual, Especially With This Subject Matter
Most trials are not televised at all. What’s even more unusual is televising live a case involving allegations of domestic violence and sexual assault. Good reasons to not do so should be quite apparent.
This judge should not have allowed cameras at all where the parties did not both agree to it. In every family court I have ever been in (quite a few, as a professional mediator), cameras and recording of any kind were strictly prohibited. I also have yet to meet a survivor in real life who would want cameras on them telling their story, if it wasn’t necessary.
This case was televised live, and involved two prominent celebrities, plus a sensitive and controversial subject matter.
Furthermore, this jury was not sequestered, even though such prominent cases often are – to prevent the jury from being influenced by outside pressures. The judge should have known that this jury should be sequestered, due to its sensational nature.
Accordingly, few other cases involving this type of proceeding are subjected to the kind of intense social media follow-along and commentary that this one was.
However, cameras in the courtroom will, thankfully, not be the norm for most people bringing these kinds of allegations in the future. Legal proceedings will usually not be subject to the outside influence and pressures of the entire world.
It Costs a Lot of Money to Bring a Suit Like This
Only anyone who’s ever been involved in litigated proceedings, either personally or professionally, realizes how insanely expensive a civil trial is. It’s financially out of reach for most other people, regardless of merits.
Depp could easily afford this lawsuit, but most other people cannot. So an uptick in such suits is unlikely.
Frankly, for what it’s worth, I think both parties came away from the trial looking pretty bad. Even having watched small clips of the trial, it’s pretty clear they both have abusive and troubled personalities, and behaved badly during their relationship; and in my opinion, neither deserves much in the way of money, or public sympathy.
That said, I do think Depp’s first lawyer was rightfully held liable. Members of the bar are held to a higher standard, and the states’s Bar Association could discipline him – but we’ll see.
Interestingly, rock singer Marilyn Manson – who is a close buddy of Johnny Depp’s – is also now pursuing defamation proceedings against actress Evan Rachel Wood. This follows Wood speaking out and saying that the singer sexually assaulted and abused her during their former relationship. Several other women have also separately accused Manson of similar crimes, though, which greatly helps Wood corroborate her defense against defamation claims. Wood has publicly stated that she’s not scared.
Accordingly, this lawsuit should not stop anyone from pursuing justice if they’ve been abused or assaulted. It’s always scary and humiliating to do so no matter what, unfortunately, – and justice in such matters still doesn’t happen nearly as much as it should.
But we cannot let abusers and predators get away with it, because of the outcome of one celebrity trial in which the judge botched their job multiple times.
Thank you, dear readers, for reading, following, and sharing. Here’s to fairer trials.
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