Reflecting on Depp v Heard
It has been hard to avoid coverage of the Depp v Heard trial. Dominating social media channels, this theatrical case has sparked discussions over domestic violence, #MeToo, social media coverage and televised court cases. Although Depp and Heard’s relationship was beset with rumoured infidelity, abuse and drug use, the Fairfax County trial was strictly a defamation case. Notably, this was Depp’s second entanglement with defamation law, following a UK case brought against The Sun Newspaper. Both the US and UK cases and the resulting wider issues will be considered, in an attempt to better understand what actually happened in the courts and the media.
The US Case
Depp sued Heard for $50 million over a 2018 article published in the Washington Post. Heard counter-sued for $100 million. The jury had to determine who was defamed according to the evidence, and if either party had acted with malice. Depp was ultimately awarded $15 million, with the jury finding that Heard did indeed defame Depp and act with “malice.” The jury also found that one of Depp’s lawyers defamed Heard by accusing her of staging a “hoax” scene of abuse.
Interestingly, Heard’s article for the Washington Post does not specifically name Depp, but his lawyers claimed that its contents are both about him and defamatory. The jury held that three statements from the article were defamatory, untrue and published with malice:
• “I spoke up against sexual violence – and faced our culture’s wrath. That has to change.”
• This is the headline of Heard’s article, which she did not write.
• “Then 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.”
• “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”
These costly sentences have shrouded US First Amendment law with uncertainty. Observers are unsure how much significance should be afforded to this judgement, but as Dan Novak writes, “it would be a mistake to draw any sweeping conclusions from it.” The Hulk Hogan judgement from 2016 reinforces this. Hogan, a former professional wrestler, was awarded $140 million by a jury in his case against the website Gawker. Clips of Hogan’s sex tape had been published, and the legal consequences for Gawker left journalists fearing restrictions to their work. However, soon after, court allegations were minimal following exposés on Weinstein and other powerful men. There is a difference between free speech and the legal technicalities of defamation law, and previous encounters with the law demonstrate this.
The US trial revealed disturbing behaviour by both Depp and Heard, and despite the criticisms which Heard has faced, it is clear that “the jury did not find Depp wholly credible either.” Graphic text messages written by Depp such as “I will fuck her burnt corpse afterwards to make sure she’s dead” contrast acutely to audio recordings of Heard taunting Depp’s victimhood, such as ‘Tell the world, Johnny… I, Johnny Depp, am a victim too of domestic violence.’ Many people do not believe Amber, and many post-trial commentaries question whether it is because she does not look like how a victim should. However, the aforementioned audio clip shows how aware Heard is of her privilege. According to ManKind, an initiative which helps male domestic abuse victims, 26% of domestic abuse crimes recorded by the police were committed against men. That said, only 4.4% of domestic abuse victims being supported by local services are men. It is clear that the support and understanding of male domestic violence are very limited and far more stigmatised than its female counterpart. Heard was aware of her position in the relationship – a woman of smaller stature, perhaps more vulnerable, and statistically more likely to be a victim of domestic abuse. Without commenting on the victimhood of either Depp or Heard, Heard seems to be aware of her specific position and uses it to her advantage. A line of questioning from the trial directly relates to this, with Depp famously responding “I wouldn’t say that,” when asked “You’re a lot bigger than Amber, correct? Physically.”
The BBC recently released a documentary about this case. Titled ‘Reputation: Depp v Heard,’ Holly Honderich explores in depth the witness testimony from the trial. The couple’s former therapist, Laurel Anderson, has described their dynamic as “mutual abuse.” In response to this, the CEO and President of the National Coalition Against Domestic Violence, Ruth M. Glenn, discussed the existence of a primary aggressor in such circumstances. Depp’s expert witness testified that Heard had Borderline Personality Disorder and Histrionic Personality Disorder, whereas her expert said she had been diagnosed with PTSD from violence suffered by Depp. There is a clear absence of any consensus here, leaving both the jury and viewers wondering what actually happened in their relationship. It seems certain that patterns of mutual abuse did indeed exist, and perhaps there was a primary aggressor. That said, what is undoubtable is how thoroughly Heard has since been undermined in the media. As Rebecca Ruiz writes, “none of us should feel good” about the response to Heard’s claims of abuse.
Frighteningly, people have defended Depp’s text messages with the justification of artistic licence. Recurring throughout this discussion is the lengths in which people will go to either absolve Depp of guilt or criminalise Heard. Regardless of where innocence and guilt lies in this case, it seems far more was on trial than just defamation law. Many regard the eight weeks in court as a trial of likeability and credibility, but did that condemn Heard before the trial even began? With more than 300 million viewers tuning in, social media was overwhelmingly in support of Depp, and the un-sequestered jury was exposed to it all. Cooper Lawrance, a journalist and author, summaries the social commentary simply: Heard stares at Depp, unafraid, while Depp eats a pile of gummy bears, jokingly and unbothered. If Depp does not take Heard seriously, why should we?
Post-trial, Heard did an exclusive interview with NBC which received a 0.3 rating for viewers aged 18-49. It is considered “vindictive” and a “flop,” bringing in the show’s second smallest audience since November. Since then, Heard has been mocked for shopping at discount stores such as TJ Maxx on social media, and is planning to write a tell-all book as she is “broke,” according to a source close to her. It is hard to remember that this trial was one of defamation and not reputation, and the loss Heard is suffering is substantial. This is undoubtedly a “chilling victory for Depp.” Not only is Heard’s Hollywood career over, but she has been hung out to dry by all of social media. Remembering Depp’s 2016 text of “She’s begging for total global humiliation. She’s gonna get it.” makes Depp’s victory even harder to celebrate.
The UK Case
Depp was met with a rather different result in the UK. He sued The Sun for writer Dan Wootton’s description of Depp as a “wife-beater.” Supposedly, Wootton was guided by the contents of Depp and Heard’s divorce documents, and the courts held that the article was “substantially true.” Such detailed evidence was provided that twelve out of fourteen alleged assaults were proven to the civil standard. In fact, Depp’s appeal was not even granted because, according to a representative for Heard, the evidence was so “overwhelming and undeniable.” However, Depp and his legal team were clearly not discouraged, with his lawyer expressing confidence for the US case as Heard would “have to provide full disclosure.” It appears that his legal team were correct, but ultimately each trial was disputing a separate issue.
Both of Depp’s defamation trials involved numerous technicalities which made each result more likely, but there are some general differences which seem particularly poignant given the contrast in the results. In the UK, Depp sued against the allegedly defamatory publication, namely The Sun, instead of the individual, Dan Wootton. Media and journalism firms almost always have more legal experience fighting defamation cases than an individual, which is why suing against Heard, not the Washington Post, was a far wiser decision in Depp’s second trial. Furthermore, a judge decided the outcome of Depp’s UK case, whereas an un-sequestered jury held the power in the US. A jury who was exposed to the bashing of Heard on social media, and likely to idolise a world-class movie star, unsurprisingly ruled differently to a judge. Of course, these trials were on different topics and legal issues, but it demonstrates the different playing fields on which both trials took place.
The lawyers for both The Sun and Depp made their feelings evident during the UK trial. Adam Wolanski QC, representing The Sun, described the gold digger trope that Depp’s team attempted as “misogynistic” and “hopeless.” Indeed, the judge agreed with this, holding that he does “not accept this characterisation of Ms Heard.” Depp’s lawyer Andrew Caldecott QC criticised Heard’s claims of donating her divorce settlement to charity. He described it as a “calculated and manipulative lie.” The bad blood on both sides was undeniable.
The aftermath of this case was “immensely damaging” for Depp, according to Reputation Management lawyer Mark Stephens. Allegedly, Depp was blackballed from Hollywood. Certainly, he was cut from the Fantastic Beasts film which initiated the publication of Wootton’s inflammatory article. Following the UK trial, Depp had to fight for what remained of his image. Depp lost movie deals, tens of millions of dollars, and his reputation. However, the US trial seems to have remedied, if not reversed, this effect.
Domestic Violence and #MeToo
“We aren’t entertaining the concept that she could have lied.” Those are the words spoken by Saif Khan, a college student accused of rape, and the feature of Louis Theroux’s documentary ‘The Night in Question.’ Throughout the documentary, Khan appears increasingly manipulative and uncredible, but in his initial interview with Louis, he is calm and convincing. Society as it stands, despite all the progress made with #MeToo, still works against women. Some people, in particular men, will use the newfound protections which women have obtained against them, claiming that they are lying about their experiences. Of course, some women do lie about their experiences with harassment, abuse and assault, but so many more women suffer in silence, afraid to speak up and afraid that they will not be believed. Scepticism of assault victims existed before Depp v Heard, but with so many believing that Amber lied, the issue has been thrown into a very harsh light.
One Guardian article published laywomen’s accounts of the situation, which are incredibly valuable to understanding the wider picture at play here. Smith writes that ‘we have always known that there would be false allegations of abuse among genuine’ ones. Rebecca Ruiz writes that some Depp supporters believe Heard has ‘ruined it for all the women who were telling the truth.’ Both of these are true and co-exist. There have been and will always be false allegations, there will always be women who take advantage of their more vulnerable position in society. That said, projecting this inevitable yet disappointing fact onto the rest of women and their experiences is, in a word, oppressive. Less progress has been made here than we care to admit. We do not know the true extent to which Heard allegedly abused Depp, but that is not what the trial was about. The response which Heard received, regardless of where the truth lies, exists within a disturbing reality for future victims. Although the Depp v Heard trial is no longer headlining our papers, it will have long-lasting repercussions for domestic abuse victims. Perhaps believing that Heard ruined it for the women who were telling the truth was the actual breaking point of this movement.
More technically, the notion of pervasive gender bias sheds light on why Heard was treated with such contempt. This inherent and subconscious bias leads us, men and women alike, to undermine women’s experiences before they are even shared. Women have this additional force working against them and their credibility. Ruiz describes Heard as ‘the type of woman that our culture loves to loathe: beautiful, young, aspiring, and seemingly involved in a beloved man’s downfall.’ Certainly, society was quick to discredit and mock Heard. The discussion to be had here is not whether these allegations made against Heard are accurate, but rather the significance of their existence to begin with.
The response of domestic violence survivors certainly has a place in this discussion. In an article by Lux Alptraum, survivors mentioned how intimidating a court setting is, how litigation can be used as a means of harassment, and how it limits justice to those who can afford it. One contributor, Liz, particularly stands out in the article. She says she “would have loved to believe Heard,” but instead feels like Heard “lied about being abused” upon watching the footage. Prejudicially discrediting Heard is unacceptable, but people still feel the same upon watching the trial. Is there good reason to doubt her credibility?
In the UK case, Depp’s lawyer Jenny Afia raised concerns over ‘the judge’s reliance on the testimony of Amber Heard.’ Although court cases are confined to the legally admissible evidence, the media paints a rather unflattering picture of Heard. Kate James, Heard’s former PA, publicly claimed that Heard twisted James’ personal sexual assault experiences ‘for her own use.’ James also shared Heard’s typical behaviours as an employer, for example sending her ‘incoherent, abusive text messages’ in the early hours of the morning almost daily. Ultimately, James focuses on how distressing it is as a survivor to witness someone falsely claim survivor status. The truth is hard to ascertain, but conflicting testimonies and contrasting interviews with both Depp and Heard certainly encourage the eventual support for Depp. Heard is seen to be demanding and unfriendly in interviews, whereas Depp always appears so calm. However, we know what Depp’s behaviour has been like, whether in text messages or in violent video clips recorded by Heard in their home. Ultimately, the trial verdict favoured Depp and his witness testimonies were believed. There is much to learn from this trial, and our understanding of victimhood must be adapted to the real-life context in which it exists. It seems that both Depp and Heard are victims, and they should be taken for who they are in light of their shortcomings, instead of being blindly praised or criticised beyond proportion.
Social Media Coverage
The lack of a sequestered jury has been brought up time and again in the Depp v Heard case. It is particularly fundamental in this trial as the media coverage was inescapable. The response to Depp and Heard’s Instagram posts following the verdict says it all. Depp received nearly nineteen million likes and nearly one million comments on his post expressing gratitude for the verdict and his community for support. In contrast, Heard received a little over four hundred thousand likes and a limited comments section on her post discussing a curbed right to free speech. This may not seem shocking considering the mockery which Heard faced on social media throughout the trial, but it is disturbing how popular #JusticeforJohnny was before any evidence had even been presented.
This trial has not been hailed a ‘trial by TikTok’ for nothing. People online are convinced that Heard must be lying about her abuse. As Moira Donegan writes, many “have treated Heard with the same contempt that Depp did in his texts.” Heard should not have been punished for speaking out, and yet people have accused her of painting on her bruises with makeup, faking photos of injuries and even calling police to a hoax scene of abuse. With brands such as Duolingo and Milano sharing their piece, it is hard to believe that this case dealt with matters of law. The jury being exposed to it all certainly casts doubt on how fair this trial actually was.
Considered ‘one of the most high profile airings of Hollywood’s dirty laundry,’ the media’s narrative has been paramount to understanding what really occurred. Bold character assumptions are often made based solely on what is in the media, and this case demonstrates the harmful implications of this. The dangers of para-social relationships, one-sided relationships with public figures, are evident. They “entrench deeply harmful conversations” which can have a profound impact on our understanding of domestic violence and power balances within a relationship. Depp would not have been defended so fervently if he was not such a well and widely loved movie star. Heard would not have been mocked so viciously on social media if she was not the purported villain in Depp’s story. The response was unacceptable regardless of the circumstances and verity of the claims made during the trial. It should not have mattered who was on trial and the jury should not have been exposed to the external biases which pervaded this case.
Implications of Televised Court Cases
Televising this case widened its audience immensely. People were reached not just from the initial TV broadcast, but also from the social media clips and commentaries. Court cases are generally not televised, particularly those dealing with domestic abuse. However, there are several convincing arguments which pioneer a different reality for televised court cases. Barristers themselves, who are the lawyers who practice in court, believe the progress in this domain to be “painfully slow.” If those who most thoroughly understand the justice system believe that further progress must be made, it is hard to see an alternative.
This traces back to discussions over whether cameras should be introduced into the Houses of Parliament. It was considered disruptive and as a threat to the normal parliamentary proceedings, but instead, it allowed for accountability and accessibility to unprecedented levels. The aphorism ‘justice should not just be done, but seen to be done’ rings particularly true here, with many believing that televising court cases would lead to more faith in the justice system. The Secret Barrister, a criminal barrister with a public image and a hidden identity, often shares the reality and pitfalls of the UK criminal justice system. A large part of his work is lifting the veil of secrecy which currently exists within courts. Televising court cases would further his work, with so much to be gained by society.
Das Jugendgericht is a valuable case study for this issue. Das Jugendgericht is a German TV show which features an actual judge presiding over fictional cases. The Minister of Justice of North Rhein-Westphalia believed that a very realistic depiction of justice, performed by actual professionals, was the best way to uncover the reality of the judicial process. Indeed, the show has been incredibly successful, with about two and a half million viewers daily. However, with time the show drifted from its original objective and developed into a drama with rougher language, more revealing clothing and more scandal. Those who managed the show felt that the trials were boring, and strived towards a more ‘emotional and sensational’ portrayal of the law to preserve its enthrallment in German society.
The UK Supreme Court contrasts sharply with this. The Supreme Court broadcasts its cases by itself, thus avoiding the need to please media management bosses. However, they fail catastrophically at reaching a large audience. With only 8000 viewers per case, and those viewers being mostly lawyers and law students, the audiences could not be more different. Indeed for Das Jugendgericht, sensationalising the reality of the judicial process defeated the purpose of broadcasting it. If the aim of both Das Jugendgericht and the UK Supreme Court is to raise awareness and understanding of the law, perhaps a midpoint between both of these examples is the way forward. Educating Supreme Court viewers about the technicalities of UK law will help them to understand what they are actually watching. There is a lot of pomp and circumstance to UK trials which may be confusing for people who have not studied or practiced the law. Removing the barrier to the law is entirely possible and a very worthwhile endeavour, but it needs further reform to get there.
A message to the reader
For those who do not study or practice the law, reading or watching the Secret Barrister is a brilliant starting point – his books and documentaries lift the veil of secrecy behind our legal traditions and practices, and explain what is really going on underneath the wigs and gowns. Similarly, reading journalistic accounts of law cases, instead of academic commentaries, will filter out the legal jargon and provide a thorough explanation of all the relevant context. Accessibility is the priority here, and exposure to the rituals of court cases will certainly remove the stigma surrounding them. Although law’s old-fashioned rituals might seem archaic, they are a symbol more than anything else, representing formality, anonymity and the supremacy of law in history and society. The way forward should bring law’s rich history in line with the present day.
Header Image Credit: Wikimedia Commons
