For the last seven weeks, actors and celebrity exes Johnny Depp and Amber Heard have transfixed millions of people with their competing narratives in a Fairfax, Virginia, courtroom. Each claimed to have been defamed by the other, and on Wednesday, the jury agreed.
The jury’s verdict signaled that both Depp and Heard had lied, either individually or through their agents. But the jury awarded Depp $15 million and Heard only $2 million—making him the apparent “winner” of the courtroom showdown. On social media, reaction to the verdicts was swift: Depp fans were gleeful, and those who saw the trial as a referendum on the Me Too movement were despondent that Heard had not emerged as the victor in the battle for truth.
The war over “truth,” however, was already lost. As the long trial dragged on, a tsunami of distortions and disinformation—about the litigants, their lawyers, witnesses, and the judge—surged through social media and the court of public opinion, engulfing any real facts emerging from the court of law. In no way did this trial do what defamation law is supposed to: protect anyone’s reputation.
But there is a bigger message in the conclusion of this case—one that has implications for the individual liberties of every person in this country. That’s because the trial came at a moment of contentious debate about defamation law—specifically, debate about whether the First Amendment gives too much protection to defamatory speech. Some U.S. Supreme Court justices have argued that the court should revisit long-standing precedent to scale back safeguards for free expression, making it easier for plaintiffs to win defamation cases.
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Right now, prominent people face a high constitutional bar when they sue for defamation; a careless false statement on the part of a defendant is not enough. But some of the justices seem to think we should reduce that barrier, and that that effort might reduce noxious conspiracy theories in the public discourse or curb the viral spread of disinformation.
As the Depp-Heard case illustrates, defamation lawsuits do not always dislodge disinformation from public dialogue. In this case, the lawsuit just created more.
Relaxing free speech protections to make these kinds of lawsuits easier to win would leave those who contribute to public discourse vulnerable to abuse by the powerful without meaningfully reducing disinformation. And as this particular trial showed, no matter how personally or societally important the questions at stake in a defamation case, ascertaining truth and correcting falsehood is a tall order—one that defamation law has very limited ability to solve.
American defamation law is designed as a careful balancing act: The law aims to protect individuals against assaults on their reputations without unduly chilling the publication of truthful, newsworthy commentary about them. The U.S. Supreme Court has calibrated this First Amendment balance carefully over the last 50-plus years. In a watershed 1964 decision called New York Times v. Sullivan, it held that powerful defamation plaintiffs must meet significant burdens. The most notable of these is the requirement that plaintiffs prove by clear and convincing evidence that defendants made defamatory statements with knowledge or reckless disregard of their falsity.
Although the court originally placed this hefty burden only on public officials—to protect those covering or critiquing them from facing crushing liability for merely negligent mistakes—the court eventually extended this burden to all cases involving public figures, including influential figures or celebrities like Depp and Heard. The rationale, rooted in the First Amendment, is that if it is too easy for powerful people to bring defamation suits seeking staggering damages, they will use the threat of those suits to silence critics, punish enemies, and stifle important public discourse.
Soon after then-candidate Donald Trump vowed in 2016 to “open up” libel law to make it easier for people like him to threaten suit, Justices Clarence Thomas and Neil Gorsuch called for eliminating or scaling back the constitutional protections in cases brought by prominent plaintiffs. Thomas asserts that the current speech-protective doctrines enable “the proliferation of falsehoods,” and Gorsuch argued last year that constitutional reconsideration may be necessary to deal with the ways the changing media landscape “facilitates the spread of disinformation.”
If we have more defamation suits, they suggest, disinformation can be brought under control.
Anyone who has followed Depp and Heard can see that these justices may simply be expecting defamation law to do too much work. Defamation law is supposed to provide assurance that our public discourse is anchored in truth, but it has always done so in a limited way. It cannot possibly, on its own, solve our massive disinformation crisis. To be sure, in at least some instances, defamation law may prove to be a partial antidote to lies in the public sphere. It is shaping up to be a potentially useful corrective tool in the battle against falsehoods about Sandy Hook parents, voting machine companies, and election officials who faced specific attacks on their reputations, though even in these cases, one wonders if the truth can overtake the lies in the minds of staunch partisans.
But even when combating outright lies, libel suits can only be brought against lies that diminish a particular individual’s or entity’s reputation in provable ways. When the problem is lies that are harmful to society as a whole but don’t target anybody in particular—vague viral conspiracy theories about vaccines making people magnetic or elections being stolen, for example—defamation law offers no recourse.
Moreover, the Depp-Heard case shows that even when reputations are directly at stake and defamation law is invoked, remedying falsehood after the fact is tricky business. Resolution in court of law does not mean absolution in the public eye, and defamation suits can actually amplify the reach and impact of defamatory falsehoods. Victims of character assassination may also face further harm by being subjected to humiliating, traumatic, and expensive lawsuits. The Depp-Heard trial demonstrates how unwise it would be to rely too heavily on defamation law as our primary anti-disinformation mechanism. Far from curing a disinformation problem, it spawned a web of harmful secondary disinformation.
There is no doubt that disinformation, fueled by irresponsible content generators, inadequate content moderation, and clickbait-rewarding algorithms, is a societal plague. But more defamation lawsuits will not cure it—though they may contribute to it by allowing the powerful to weaponize lawsuits to suppress the truth. Expecting defamation law to help with society’s disinformation problems is misguided. This trial just showed us why.