Depp-Heard verdict on ‘credibility’ not ‘free speech’, say experts

Depp-Heard verdict on ‘credibility’ not ‘free speech’, say experts

  • A Virginia jury found Wednesday that Amber Heard and Johnny Depp were both liable for defamation.
  • While Heard decried the verdict as a First Amendment censure, legal experts disagreed.
  • “It’s not really a question of freedom of expression, it’s really a question of credibility,” said a former prosecutor.

Amber Heard lamented Wednesday that she lost the right to “speak freely and openly” after a Virginia jury found her liable for defamation in her ex-husband Johnny Depp’s case against her.

But legal experts told Insider the sensational six-week trial was never really about free speech and posited the verdict is unlikely to have future implications for First Amendment law.

“It’s not really a free speech issue, it’s really a credibility issue,” said Neama Rahmani, former federal prosecutor and president of West Coast Trial Lawyers. “The jurors found out she had lied, and she knew she was lying.”

At the center of the case was Heard’s 2018 Washington Post opinion piece, in which she said she was a survivor of domestic and sexual abuse. The piece did not name Depp, but he accused his ex-wife of ruining his reputation and career. Heard then counterattacked Depp, alleging he assaulted her before and during their marriage, which ended in divorce in 2016. Depp has denied the allegations.

After six weeks of damning testimony, the jury found Wednesday that Heard defamed Depp, awarding him $15 million in damages. They also found Depp liable for defamation against Heard after one of his lawyers called his sexual abuse allegations a “hoax” and awarded him $2 million in damages.

While the First Amendment enshrines Americans’ right to free speech, the doctrine does not protect against defamatory speech — false statements that are presented as fact and cause subsequent harm.

“It’s not about the First Amendment,” Mitra Ahouraian, a Beverly Hills entertainment attorney, told Insider.

“You can’t lie and say statements that harm people. It’s not protected speech,” she added.

While Heard’s legal team urged the jury to consider First Amendment implications for Heard’s right to publish his story in The Washington Post, Depp’s case rested more effectively on his charge that the story she told was full of damaging lies about her, experts said. .

Depp’s legal team worked hard to poke holes in Heard’s story during cross-examination, pointing out inconsistencies in his testimony and casting doubt on his reliability in a trial tactic that proved successful.

For example, Heard claimed to have had no role in the abuse, but was contradicted by a tape played in court that showed Heard saying she “punched” Depp, according to Ahouraian. Heard testified that she acted in self-defense.

Heard also said that in 2018 she donated the $7 million from her divorce settlement to charity, but trial testimony revealed she didn’t actually donate the money. She said she hasn’t done it yet because Depp sued her for $50 million, but she still plans to.

Several experts also told Insider that Heard’s graphic descriptions of the abuse Depp committed against her did not match photos of her injuries presented in court.

Roy Gutterman, director of Syracuse University’s Tully Center for Free Speech and a First Amendment expert, told Insider that the key factors were Heard and Depp’s testimonies and their “credibility and believability and ultimately, their likability,” adding that “the jurors believed Johnny Depp on Amber Heard.”

Legal experts told Insider’s Ashley Collman on Wednesday that Heard lost her libel suit because she didn’t come across as credible and lacked her ex-husband’s star power.

Celebrities face a much heavier burden of proof when it comes to defamation suits. Public figures must prove that defamatory statements about them were made with “actual malice”, meaning the speaker either knew the statements were untrue or acted with a reckless disregard for the truth.

“If you’re lying about someone and the jury thinks you’re lying, then you shouldn’t be protected that way, and it’s not going to chill your right to speak about the First Amendment,” said John Culhane, professor of law at Widener University. Delaware School of Law.

The fact that the jury found Heard and Depp liable for defamation given their status as public figures only further highlights the unique nature of this particular case. The preponderance of conflicting evidence and the social media circus surrounding the lawsuit have made the case an “anomaly” compared to other defamation lawsuits, experts have said.

“This case is so overblown in so many ways that I wonder what impact it will have,” Culhane said.

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