Depp v. Heard

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S1: Hey, everyone. Just wanted to give a special welcome to all of our new listeners from over at Spotify. Yeah, we see you guys. Welcome. And just make sure you go and click that follow button. It’ll make sure I am sitting in your feed day in, day out. You won’t miss a thing. All right. On with the show. I want to start with the alpacas. The Washington Post says they’re named Dolce and Inti. Then there’s a pair that goes by truffle and Teddy and these fuzzy animals. They look a lot like llamas. They’ve been showing up in front of the Fairfax County courthouse day in, day out. Their owners call them emotional support animals. They are there for the Johnny Depp defamation trial. To me, the alpacas are a kind of metaphor because this trial is a bit of a circus. I just feel like there are so many distracting details about this case. Do you have a favorite?

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S2: Well, the the severed fingertip is up there.

S1: John Culhane is a professor at the Delaware School of Law. He calls reporting on the Depp trial.

S2: One of the crazier things I’ve done in my long career.

S1: And about that severed fingertip. It is Johnny Depp’s. He reportedly lost it when his then wife threw a bottle of vodka at him.

S2: He was using the blood to write graffiti. Oh, and the poop.

S1: The poop.

S2: Whether it was Yorkie or human poop, we may never know for sure.

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S1: Johnny Depp is alleging that his wife pooped on a bed to express how angry she was with him.

S2: Right. And she said it was a Yorkie, one of their Yorkies. He said, no, it was human poop.

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S1: This case is supposed to be about whether Amber heard Johnny Depp’s ex defamed him by writing an editorial saying she’d been abused. But it’s become an elaborate, he said, she said, in which the worst moments of his marriage are getting dragged in front of a jury.

S2: I want to say, who cares? But it’s like it’s just. It’s too crazy not to open your eyes to it, I guess.

S1: Is this the thing about defamation lawsuits? Like once you kind of open the door? Everything is fair game.

S2: That’s exactly right. So the very thing that you’re doing, bringing this lawsuit to try to salvage or rescue your reputation can actually, at least in the short run, have just the opposite effect. Because all this stuff comes out to me.

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S1: It’s wild that this case has moved forward at all. It’s not like this is Johnny Depp’s first defamation case involving his ex. He lost the last defamation lawsuit in the U.K. and literally, the judge said, describing you as a wife beater. It’s substantially true.

S2: That’s right. The judge said 12 of the 14 allegations had been proven to his satisfaction.

S1: It’s remarkable to me that you would go back for more.

S2: Yes. Well, that’s that’s a point. Right. So he said something about he is obsessed with the truth. That’s one of his lines from this litigation. So if you think he’s credible, he seems to believe that no matter what and no matter how much this lawsuit is actually doing the opposite of helping his reputation, he is determined to have some fact finder somewhere sided with him in this version of the story.

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S1: And Johnny Depp. He’s not the only one. More and more celebrities are making the same choice to pursue defamation allegations to the fullest extent of the law. Today on the show, a look inside the cases that are making free speech. Very, very expensive. I’m Mary Harris. You’re listening to What Next? Stick around. Let’s go back to where this story begins, because Amber Heard and Johnny Depp, they got divorced in 2016, long time ago. And two years later, she penned this op ed in The Washington Post. It’s titled Now I Spoke Up Against Sexual Violence and faced our cultures wrath. That has to change. And what stands out to me about the op ed is that it’s not really about Johnny Depp. It’s about her.

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S2: Right? Right. That’s true. It is about her. So I guess I would make two points about that is even if you’re trying to kind of come forth and tell your story, if you implicate somebody else in a way that is going to affect their reputation, that person has a defamation claim. And I think that’s, you know, sort of what we’re talking about here.

S1: But what’s interesting is, like she’s not identified as Johnny Depp’s ex-wife. She’s identified by her spokesperson status. And she makes some kind of interesting observations. Like she says, a powerful man is like a ship. And that ship is a huge enterprise with lots of passengers, essentially. And when the ship gets into trouble, those passengers are going to try to bail the ship out to save themselves. And I was like, oh, decent point.

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S2: Yeah, it is a decent point. And I think, you know, I don’t know if the ship metaphor has anything to do with her role in Aquaman, but but bringing Depp into it is, you know, where she got herself potentially into trouble. Certainly getting him into trouble because now all of this stuff has come out.

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S1: How did she bring Depp into it? Because she doesn’t use his name at all.

S2: It doesn’t matter. So as long as a reasonable person would understand that she was talking about him. So if you read the piece in the way it was intended, you’re right. It’s mostly about her. But she talks about how she was in such a situation. And everybody, not everyone but reading it. You’ve given the timeline.

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S1: People can connect the dots.

S2: That’s right. People can connect the dots. And she’s not denying that she was talking about him.

S1: I mean, she says I write this as a woman who had to change my phone number weekly because I was getting death threats. Right. And I rarely left my apartment because I was being pursued by camera drones and photographers on foot, which sounds like a nightmare and is kind of just about celebrity culture.

S2: Oh, it’s terrible. It’s about celebrity culture. Right. More generally. But this is also just terrible, right? I mean, if it happened now, of course, there was a psychologist who spoke to her at the request of Depp’s lawyers and found that she was suffering from from borderline personality disorder. And I guess something called histrionic personality disorder, suggesting that those things are what would have led her to make these kinds of accusations that weren’t true.

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S1: A man as a woman, I just hear that. And I’m just like, there’s a psychologist being like, there’s a woman.

S2: Yeah. And one important distinction between this case and the U.K. case. Right, is that that case was tried to a judge. So in the U.K., you don’t have a right to a jury trial in civil litigation. But in the United States, you do.

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S1: And we should be clear about that U.K. case. That was Johnny Depp suing the Sun. They published an article saying he was a wife beater.

S2: Right. And basically, in the U.K., also, the burden is on the plaintiff to prove it’s true. And he wasn’t able to prove it.

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S1: He wasn’t able to prove he wasn’t a wife beater.

S2: That’s right.

S1: I mean, the main accusation here is that this article in The Washington Post, this op ed. Ruined Johnny Depp’s reputation, made him a Hollywood outcast. Mm hmm. And Heard’s attorneys. They’re basically arguing Johnny Depp did that to himself.

S2: Yeah. I mean, even his former agent said he couldn’t point to any role that he had lost as a consequence of this article, although he did say he thought that he thought or he believed that maybe that’s why he hadn’t been cast in Pirates of the Caribbean Six. I think even if he wins, he would be able to get some damages, because in cases like this, libel cases, a damages are presumed. But the kind of damages he would want, which are for these lost roles, he would really have to prove to the satisfaction of a jury. It’s not apparent to me that he can do that.

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S1: Yeah, there are also all kinds of allegations coming out through this litigation about Amber Heard and her behavior like that. She threw a bottle at Johnny Depp and as a result, he lost a tip of his finger and he calls the finger a little, Richard.

S2: The only thing I could think in my mind was, thank God it wasn’t the left hand, which is the fret hand, right hand. So that’s the fret I would have had to relearn how to play the guitar all over again, what I now call Little Richard my chopped finger.

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S1: But does that matter? I’m wondering, like, does it matter that she also. Struck back against him in terms of defamation, or is that just coming out as a way to make the jury think? Well, I don’t really think anyone’s right here.

S2: It’s essentially a question of which way will the damages travel if one party abused the other and then, you know, lied about it or one party didn’t abuse the other and the other person lied about it. There should be damages, neither of those cases. But, you know, Depp has claimed that not only would she verbally I think he said decimate him, but that she allegedly attacked him by slapping him, shoving him, throwing remotes at his head, throwing wine into his face. And he said in her frustration and rage and anger, she would strike out. So, yeah. So in terms of her countersuit, that’s that’s very important.

S1: Johnny Depp’s defamation suit asks for $50 million in damages. But Amber Heard, she’s responded with a countersuit all her own for $100 million. And she is on the stand right now with her own allegations of abuse. Do you remember the first time that he physically hit you? Please tell the jury about it. I will never forget it. It changed my life. It doesn’t sound like there’s a good outcome here for anyone.

S2: No. It’s just it’s so lurid. And some of the things that come out, whether or not they’re true at this point, almost doesn’t matter as much as the public perception of them. You know, the principal Office of Defamation. In my view, it’s mostly about restoring and repairing reputation and in the effort to, you know, disprove this allegation. I can see no upside to his reputation at all, and I don’t see much upside to her reputation either.

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S1: We’ll be right back. In terms of current celebrity defamation cases, Johnny Depp and Amber Heard are in interesting company. John Culhane has been tracking a lawsuit filed by the model Black China. She’s mostly known for serving as a stunt double for Nicki Minaj and a music video. Anyway, she parlayed that into a relationship with the Kardashian clan, and that relationship went sour when her engagement to Rob Kardashian came to an end. China accused the Kardashian family of defaming her and sabotaging her budding career in reality TV, and she asked for $100 million. She got nothing.

S2: And her claim is that it was canceled because of the pressure that the Kardashians put on the executives at E! And they have tremendous clout and they didn’t want the show to go on because they had had enough of her and they were siding with their brother, basically. And all the emphasis, of course, is on the defamation and whether there was abuse.

S1: Because they accused black China of abusing Rob.

S2: That’s right. But the argument is, well, yeah, that’s why the show was canceled, because no one wants to do a reality show about a couple. That’s not a couple.

S1: Yeah. Just a month or two ago, the singer Marilyn Manson announced he was suing a former girlfriend, Evan Rachel Wood, because she was accusing him of abuse and she was working on an HBO documentary about that. That seems actually quite similar to the Johnny Depp Amber Heard situation.

S2: Yes, that’s much more similar. We see the same thing all the time in cases where you have an accusation of abuse. And then, you know, somebody says, not only did it occur, but I’m going to sue you for defamation. Another example of this is the case of the woman who is suing the ex-president.

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S1: You’re talking about Jean Carroll, the writer.

S2: That’s right. And she’s the one who accused Trump of a sexual assault, a rape, really, in the dressing room and is now claiming that his denial of that is defamatory. And it looks like that’s going to trial the Carroll case. Strikes me as a different animal in some ways.

S1: How so?

S2: You know, I’m kind of thinking about this as I’m sitting here, and I think she’s not a celebrity on that same level. I mean, no one would really think that she’s doing this to kind of draw attention to herself or to get some kind of weird bounce back publicity or anything like that. I mean, it seems like if this happened, it’s a very specific thing for one thing, right? It’s not this course of conduct. If this happened and if she was, you know, telling the truth about it and we can get accountability, it will be, you know, a jury will decide. It’ll be clear as it can be in in civil litigation. The other two, it seems like there was such bad behavior on both sides. And that’s not to say, you know, it’s not all terrible.

S1: You’re talking about the Kardashian case and the.

S2: And and the DAP case. Those two cases seem to me that they’re not going to further any larger social interest that we have in having these stories come out. And I think the Aegean Carol story kind of stands apart in that respect.

S1: Yeah, it’s interesting you say that, because I think domestic violence experts have looked at what’s happening with the Johnny Depp case. Mm hmm. And I’ve been kind of horrified to see all of the ways that because of the way our legal system works, you can just drag the person you’re fighting with through the mud in a hundred different ways through this process.

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S2: Oh, it’s been terrible. It’s been terrible for you know, no one’s getting out of this alive in terms of reputation. And it’s one of the things we always worry about in in criminal litigation, where somebody accuses another person of sexual assault, rape, and they get dragged through the mud. And to see it happen on the civil side is, you know, it’s just awful. And I’m a I’m generally a fan of of televising legal proceedings. I wish the Supreme Court would do this. I have to say, I have I have my doubts in seeing this Johnny Depp case, because is the goal of public education really being served or is it just noise and more stuff that people are trying to assimilate and deal with? It’s it’s it’s depressing.

S1: Yeah. I wonder how you think this case connects up with the larger cultural conversation we’re having right now about free speech. Like, it’s interesting to me that this case is happening at the same time that we have Elon Musk buying Twitter and saying, you know, I’m going to open it up to anything goes, you know, more discourse is better. And then I look at a case like this and I was like, is more discourse better?

S2: Yeah, I know. That’s. Well, that’s right. I mean, I think the the First Amendment scholars are really having sort of a new conversation or an expanded conversation these days about the things that we’ve been saying for years, which is, you know, the marketplace of ideas. And the more speech that’s out there, the better. And in the age of social media and incredible vitriol and the ability to kind of tear people into pieces, it does raise interesting questions. And I think in my attempt to link these things up, what I would say is this It’s not surprising that in the age of kind of pan social media that there are all these defamation cases because there’s so much information out there, it’s so easy to tear down someone’s reputation. And the. The remedy we have for that is a defamation suit. Right. So it’s not surprising that these suits are out there.

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S1: Is that the right remedy?

S2: Well, that’s the question. And part of the idea of the public figure, right. Is that we make it difficult for public figures to sue in defamation because they have access to the very same platforms that they’re defamed on typically. Right. So we’re fine. Take your favorite celebrity and I am defamed by somebody I can fight back in the court of public opinion through social media, through op ads, whatever it is. The problem with that is that kind of worked better when we didn’t have this glut of of information and 24/7 news in social media where your attempt to fight back may be deluded or lost in this, you know, glut of informational junk that’s out there.

S1: Is that explicit somewhere in the law that it’s like, you know, really your first remedy should be write an op ed for The New York Times.

S2: Yeah, it kind of is. Right. So the Supreme Court has said that public figures can only because of the First Amendment, that public figures can only sue for defamation if they can show what they call actual malice, which is, you either know the statement is false or you recklessly disregard whether it’s true or false. So in the old days, you could just sue for negligence, right? You didn’t you didn’t do your homework. You didn’t investigate seriously. And one of the reasons the Supreme Court gave for that position was that people who are public figures can fight back in the court of public opinion. Maybe they should revisit that. But, you know, that was a long time ago. The 1970s is when that case came down. So there’s a lot we could say about how that might be addressed.

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S1: It seems to me looking at these cases as a group, there’s a few new things happening. First of all, there’s how far accusers will go to speak out against the people they say abused them. You know, I don’t know that we would have seen an eating carol lawsuit or an Amber Heard counterclaim in years past. But then there’s also this issue of who they’re speaking to, because it seems to me a lot of these women, they’re not going the criminal route, but they are speaking out very strongly. And I wonder if that’s an important difference to talk about and and whether it’s meaningful at all.

S2: Yeah. So that’s a great point. And I want to be understood to say very clearly that I think this is a good thing that especially women, but anyone who has been abused physically or sexually by somebody else, that they now feel it’s possible to come out against your accuser. And I think the events over the last few years have kind of helped, you know, gin up people’s courage to do this kind of thing. So. So I think that’s been a tremendously helpful thing. What I worry about is that suits like this, wherever the truth lies, these allegations of back and forth and just the lurid ness of all of this, if that’s the word, is going to make people cynical or skeptical about these very serious concerns that people absolutely should be raising.

S1: Do you worry at all that cases like this are the courts essentially saying to domestic violence victims in particular? If you don’t go to the cops, just shut up.

S2: Yes. I worry about this, you know, tremendously in this, a case like this has a real potential to do harm. And I. I find it painful to watch, to be honest with you.

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S1: John Culhane I’m really grateful for all of your research on this topic and coming on the show.

S2: Thank you so much.

S1: John Culhane is a law professor at the Delaware Law School. And that’s the show. What next is produced by Mary Wilson, Alena Schwartz and Carmel Delshad. We are getting a ton of help right now from Anna Rubanova and from Sam Kim. We are led by Alicia montgomery and Joanne Levine. And I’m Mary Harris. I will be back in this feed bright and early on Monday. Meanwhile, I am passing the baton to Lizzie O’Leary. And what next? TBD, catch you later.