This spring has been the season of celebrity defamation cage-fighting.
Thirsty viewers can watch the live spectacle of Johnny Depp’s testimony in his trial against his ex-spouse, Amber Heard, based on a 2018 Washington Post op-ed in which she accused him of sexual violence (albeit without mentioning him by name). Meanwhile, those who must keep up with the Kardashians have to settle for summaries of the non-televised case against the superstar sisters and their mother, Kris Jenner. The plaintiff is Blac Chyna, a model and clothing/cosmetics mogul, who claims the Kardashians’ defamatory statements against her led to the cancellation of the E! reality show that followed her relationship with Rob Kardashian, brother to the three “K” sisters.
Neither of these absurd cases is at all likely to accomplish what defamation claims are mainly designed to do – protect and restore the reputation of the person bringing the claim. And that’s the case even if the lawsuits are “successful” and allow the plaintiffs to collect damages.
The legal right to protect one’s reputation has been recognized through the common law torts of libel (which is written defamation) and slander (which is spoken defamation) since at least sixteenth-century England. A successful defamation lawsuit is designed to restore not only our present standing in the community, but the part of us that lives on after we die. The lasting importance of this interest in our good name was dramatically recognized by Shakespeare in Othello. After becoming involved in a drunken sword fight, Othello’s lieutenant Cassio cries for the loss of “my reputation! I have lost the immortal part of myself, and what remains is bestial.”
A civil trial is the mechanism for rehabilitation, and until recently, to succeed the plaintiff only had to show that the defendant made a false statement that was likely to cause injury to reputation. (It’s harder these days, because the Supreme Court has held that the interest in free speech means that public figures—like the plaintiffs in these cases—need to show that the defendant knew or was reckless in not knowing the statement was false.) Even today, in most cases, the plaintiff does not even have to prove damages were suffered by the defamatory statement—this, too, is presumed. Mostly, then, the tort was designed as a way to restore plaintiff’s standing, with damages a secondary consideration.
But will either of these lawsuits restore the plaintiff’s reputation? Even before these trials have ended and gone to verdict, the answer seem clear: Not a chance. In this, the cases stand in dramatic contrast to another current, less-well-known case—but more on that lawsuit later.
Depp’s lawsuit against Heard is an understandable effort to prove that he didn’t commit the violent acts against her that she has alleged. (That’s if he’s telling the truth; a judge in a previous trial in the UK, against a tabloid, found that a headline from the Sun, describing him as a “wife-beater,” was “substantially true.”)
But does anyone really think that Depp’s lawsuit against Heard is going to restore his reputation even if he wins? Or that Heard’s own countersuit for defamation (for Depp’s alleged lying about her accusations) will improve her public standing? The whole trial has been one primal scream cum train wreck, in which the reputations of both parties are circling the drain.
Those with the stomach for tuning in have heard opening statements and seemingly endless testimony of the litigants accusing each other of horrendous, abusive conduct, detailing Depp’s substance abuse issues, and potentially slamming future career prospects for both actors. (Heard, while less known than Depp, has appeared in the blockbuster Justice League and Aquaman films.) And the entire trial is being conducted in a circus climate, with supporters of both celebrities straining to get in and disrupting proceedings. The stuff that’s coming out is extremely harmful to both parties—no matter the truth, which we may never ultimately learn in any case.
The winner will be able to recover at least some damages, which are presumed in libel cases. But the principal task of reputation repair isn’t going to happen. Proving that defamation itself led to the further downward trajectory of Depp’s career seems a tall task, in general; Depp’s own former agent, Christian Carino, testified that he wasn’t aware of any roles Depp lost as a result of the defamation, although Carino added that it was his “belief” that it cost Depp his role in the sixth(!) Pirates of the Caribbean film.
The Chyna/Kardashian trial is eerily similar in that Chyna’s reputation could emerge more, not less, battered and bruised, whether or not the Kardashians conspired to tank her E! show, as she alleges. For one thing, she has acknowledged that, at one point, she wrapped a phone-charging cord around Rob Kardashian’s neck and grabbed a gun. Why? No paraphrase can do justice to this surreal exchange between Chyna and the attorney for the Kardashians, as captured by the Associated Press:
“You’re saying to the jury that you stood behind him with a phone cord and wrapped it around his neck, and that was a joke?” attorney Michael G. Rhodes said.
“Yes,” answered Chyna, who generally remained composed under heated questioning.
He later asked, “Grabbing a gun is funny?”
“It was a joke,” she said.
The jury has also heard testimony from Corey Gamble, Kris Jenner’s partner, that he witnessed a physical assault by Chyna against Rob Kardashian. The gist of Chyna’s argument is that the Kardashian Clan defamed her by misrepresenting these events to get her show canceled and ruin her television career. Perhaps the jury will believe her account of these lurid events, but will they also believe that the show would not have been canceled even without their alleged interference? She and Rob had split. Would E! continue a reality show about a couple that no longer was one?
It seems unlikely, but if so, Chyna’s suit at least stands to net her a tidy sum, but no discernible recovery of her reputation. (She might have been better served limiting her lawsuit to the other allegation in the complaint – wrongful interference with contract.)
Both cases center on—or at least involve—allegations of spousal abuse, and it should go without saying that such allegations should always be taken seriously. But in Blac Chyna’s case, the abuse is in some ways tangential to her lawsuit for defamation and interference with contract. It’s more likely to influence the jury’s view of the underlying case than to result in any conclusion about whether abuse actually occurred.
Not all defamation cases brought by public figures are this distressing, or this unlikely to serve the very purpose for which the tort was created. Consider a third case that, while in the news somewhat, has received far less attention – but is a much more typical (and sensible) defamation claim. Nona Gaprindashvili is a real-life person mentioned in “The Queen’s Gambit,” the popular 2020 Netflix mini-series. Now 80, she is a Georgian who played chess for the Soviet Union. She has sued the streaming service for a line during the final episode that she had “never faced men” in competition, even though the speaker also noted that she had been a world champion among women.
This was, for narrative purposes, a throw-away line about another female chess master; it was not about the fictional main character of “The Queen’s Gambit.” But the show used Gaprindashvili’s real name.
What’s more, Gaprindashvili had in fact faced many male grandmasters, and won tournaments against them back in the 1960s and 70s. She sued for what she saw as a sexist and defamatory statement. Although the show is fiction and loosely based on a novel, the trial court rejected arguments that the statements within the show are protected First Amendment speech because they are statements that could be seen as true by a reasonable viewer, and they are likely to damage her reputation—the “immortal part” of herself that could live on, even after death. In allowing the case to proceed, the trial judge noted: “At the very least, the [statement] is dismissive of the accomplishments central to plaintiff’s reputation.” Of course, this Grandmaster plaintiff is seeking money damages, but she is mostly concerned with the show’s having tarnished her reputation as a world-class player who had defeated many men during her career.
It’s a classic defamation case, featuring none of the prurient appeal of the two celebrity cases. It is designed to vindicate Gaprindashvili’s good name. As Shakespeare wrote, with typical eloquence: “Good name in man and woman…/Is the immediate jewel of their souls.”
The celebrity trials are a lot of circus, but there is something bigger to consider about the vogue for defamation trials. While defamation has historically been most associated with written falsehoods, today it is often carried through speech and images, which can be widely circulated, and remain immortal on the internet.
Yet that same crush of intellectual and sensory input has contributed to the mess we’re in: When (mis) information is “all static, all day, forever,” as the B-52s put it, and when public figures and the political class exploit that glut of junk to defiantly deny the plain truth, defamation suits are one way to fight back. It’s just that, as both the Chyna and Depp lawsuits depressingly depict, their power to establish truth and restore reputation is limited indeed.