What the Depp v. Heard Trial Has Taught Us about Defamation Law

For nearly six weeks, many have followed the defamation trial between Johnny Depp and his former wife Amber Heard. The trial has provided potent insight into the destructive effects of drugs, alcohol, and stardom. It has also highlighted the perhaps more relatable lesson that ending a marriage can be a messy process. Emotions run high, tempers flare, and deep wounds can lead former spouses to lash out. Sometimes these outbursts result in saying things that are hurtful or even defamatory. Such is the basis of the case of Depp and Heard.

The dispute between Depp and Heard stems from a December 2018 opinion column by Heard printed in The Washington Post. In the column, Heard described herself as a victim of domestic violence. While the column did not name Depp directly, Depp has argued that it included enough detail and time references to allow readers to deduce that she was talking about Depp, to whom she was married briefly from 2015-2016. For instance, the 2018 column stated “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.” Readers were quick to connect the dots recalling that she had first raised allegations of abuse during her and Depp’s 2016 divorce proceedings. These allegations were also reported in a London tabloid that Depp sued unsuccessfully in 2020 for labeling him a “wife-beater.”

Depp responded to the op-ed by suing Heard for $50 million. She responded by countersuing Depp for $100 million in damages. The seven-person jury in the case is considering Heard’s countersuit alongside Depp’s original claim.

One lesson about defamation law can be learned from considering where the suit was filed. Depp filed suit in the in Fairfax County Circuit Court in Virginia, though neither he nor Heard live or work in Virginia. Both reside, at least part time in California, but neither chose to file their claims in a California court. Why? There are at least two reasons.

First, the allegedly defamatory statements were made in a column printed in The Washington Post, which is printed in Fairfax County, Virginia. The op-ed also appeared on The Washington Post’s website, whose servers are located in Virginia as well. Virginia is one of just ten states that adhere to what’s known as the lex loci delicti rule, which is a legal doctrine for determining where a tort, like defamation, was committed. Under Virginia law would be where the publication occurs, which as mentioned is in Virginia where the paper is printed and its servers are located.

Another possible reason for not filing suit in California is that California has a strong anti-SLAPP statute. SLAPP stands for Strategic Lawsuit Against Public Participation and “anti-SLAPP” generally refer statutes aimed at preventing lawsuits intended to censor, intimidate, and silence others by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

Under California’s, and many other state’s, anti-SLAPP laws, a defendant accused of defamation can file an anti-SLAPP motion seeking to have the case dismissed because it involves protected speech. For example, Heard has argued that her op-ed about domestic violence involves a matter of public concern and thus is protected by the First Amendment. Had Depp filed in California, he would have had the burden of showing at a preliminary stage that he had a strong probability of prevailing in the suit and overcoming any First Amendment defense. Had he been unable to meet this burden, his suit would have been dismissed and he would have been forced to pay the cost of Heard’s defense. Additionally, losing an anti-SLAPP motion usually signals a death-knell for a defamation suit, which, for Depp, would have potentially been a bigger issue than paying Heard’s defense costs as his marketability in Hollywood depends on not being viewed as a domestic abuser.

Another important lesson the case has taught us about defamation law is the importance of not allowing the pain of a divorce or the wounds inflicted leading up to it to spill out into defamatory statements about a former spouse. While statements made during divorce proceedings are privileged and not subject to liability, statements made outside court filings and proceedings are not protected by any such privilege. Illinois law allows spouses or former spouses to sue each other for defamation. Making false statements about a former spouse may not only hurt the reputation of the former spouse but may lead to liability for defamation.

Our top-rated by Super Lawyers Naperville, Oak Brook, and Wheaton defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. We also represent and prosecute claims on behalf of businesses throughout the Chicagoland area including in Schaumburg and Bolingbrook who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating websites in order to publish defamatory content about our business clients. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. We serve clients throughout Illinois and the Chicagoland area. You can contact us online here or call us on our toll-free number at 833-306-4933 or locally at 630-333-0333.

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