Depp v. Heard – a Brief Legal Overview

Social media has been exploding with news about the defamation trial between Johnny Depp and Amber Heard in Fairfax County, Virginia. Fletcher, Heald  attorneys have considerable experience with this court and this type of claim. As such, we thought our Commlawblog readers might be interested in a breakdown of what is really going on here and why.

First, what is this case about?  Although one might think from social media that the case is about spousal abuse, that is really only an element of the proof necessary for the actual claims by each.  Despite the troubling testimony suggesting abuse by both parties, this case is actually more about reputational rather than physical harm.  Depp claims that he was defamed by Heard by three separate means – (1) through an online OpEd  that she wrote that was published in the Washington Post on December 18, 2018; (2) the publication of a print version of that same OpEd; and (3) by Heard’s retweeting of a link to that piece on December 19, 2018.  Heard, in turn, has a counterclaim based upon (1) Virginia’s Anti-SLAPP statute for defendants who believe that lawsuit was filed to intimidate; (2) defamation through statements made by Depp’s attorney, allegedly at Depp’s direction, in a Gentleman’s Quarterly (GQ) article dated November 2018; and (3) violation of Virginia’s Computer Crimes Act for harassment by computer through an alleged nationwide campaign to “harass, abuse, and discredit” Heard.

Second, why is the trial occurring in Fairfax County, Virginia given that neither of the parties live in Virginia (both are residents of California) and none of the alleged abuses occurred there?  The answer is twofold – first the Washington Post is printed in Springfield, Virginia, the digital version of the paper was created on a digital platform in Virginia, the newspaper “has wide circulation in Virginia and even publishes a Virginia local edition in which” the alleged defamatory statements appeared, and the Washington Post maintains two physical offices in Virginia.  Second, Depp contends that Heard “published the false and defamatory op-ed to promote her new movie which was in Virginia theatres for viewing by Virginia audiences.”

But even with that, why pick Virginia? The more likely reason is the perception, whether right or wrong, that Virginia has more a plaintiff-friendly defamation law and the perception that Virginia has a relatively weak “Anti-SLAPP” statute.  In fact, Virginia has been used in the past by other public figures to file defamation claims in cases that would be rejected in other jurisdictions, including by former Congressman Devin Nunes against Twitter, the New York Times, and CNN.

What do Depp and Heard have to prove in order to establish “Defamation” under Virginia law?   

To prevail in a defamation suit under Virginia law, a plaintiff need only establish the following:

1) the “publication” of

(2) an “actionable statement”

(3) made with the “requisite intent.”

The statements must be demonstrably false in order to be considered “actionable.” Furthermore, the statements must be factual in nature to be actionable.  By contrast, expressions of opinion are expressly protected by the First Amendment.

In the Depp case, the first element is easily established for both parties. The statements were made in the Washington Post and GQ, as well as in social media. “Publication” merely means that the statements were disseminated beyond just the two parties to the lawsuit.  However, the second and third elements are where there will be disputes.

Under the second element, a statement is only “actionable” if it is false.  Therefore, it will be up to the jury to determine whether the implied statement of Heard (if it is reasonably implied at all) that Depp was “abusive” was false.  As for Heard’s claim, she will have to prove to the jury that Depp’s counsel’s statement (if it was directed by Depp) that her statements were a “hoax” was false.  It would seem unlikely that both statements could be true.  In each case, the burden of proof to convince the jury that the statement is false is on the plaintiff.  A tie goes to the  defendant.

As for the third element, “requisite intent,” under U.S. Supreme Court precedent regarding statements on matters of public concern, a plaintiff must prove “actual malice” before damages can be awarded.  Under the landmark case of NY Times vs Sullivan, a finding of actual malice requires that the statement be made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

In this case, both Depp and Heard would have to prove that the other specifically intended to cause harm in making these statements.  Given that Heard did not use Depp’s name in the OpEd, this may be tougher for Depp than Heard since the GQ statements made by Depp’s attorney mentioned Heard by name.  In the end, in both cases, the decision will come down to who does the jury believe more – Depp or Heard.

Why is there a week long pause in the trial?  This case was filed in March 2019.  Due to Covid, the trial was pushed off several times, as were all trials in Fairfax County, Virginia (including several for which Fletcher Heald was counsel).  Every year, the judges of Fairfax County have a Judicial Conference in which they discuss matters of concern between the fifteen judges on the court.  That conference was scheduled long ago for the week of May 9, 2022.  In order to obtain a beginning trial date in April 2022, the parties had to agree to this pause in the jury trial.

How long will the trial last?  This is one of the longest trials ever conducted in Fairfax County Circuit Court.  The trial began on April 12 and the trial judge has promised the jury that closing arguments will occur on May 27, before Memorial Day weekend.  Given that they will just receive the case before Memorial Day, the jury will have to return after Memorial Day to consider the verdict, which will likely be rendered that week.  No matter the final decision, the case will likely have profound effects both on the common law of defamation and legislation in both Virginia and beyond.    If you have questions about filing or defending a lawsuit in Virginia state or federal courts, do not hesitate to contact Fletcher Heald attorneys.

FCC to Update Rules to Allow Digital Generation and Verification of Antenna Directional Patterns

The FCC has released a draft Report and Order to amend its broadcast radio rules to allow the use of computer models to verify antenna directional patterns. Barring unexpected developments, the Report and Order will be adopted during the Commission’s May 19th open meeting

This proposed rule changes are great news for applicants – under the prior rules, applicants were required to submit tabulation of plot and measured relative field patterns of a directional antenna by building a mockup or scale model of the antenna and supporting structures. Instead of building these structures, applicants will now be able to use computer models—substantially decreasing the cost and time of pattern verification.

The great majority of commenters favored computer modeling, noting positive results on the accuracy of computer modeling. Although engineering firms will not be able to charge as much for directional antenna verification, several firms did support this proposal.

This rule change brings FM and LPFM stations into conformity with AM and DTV station licensing, which already allow for computer modeling to verify directional antenna performance. However, an important distinction from the AM and DTV rules are that FM and LPFM computer models must be performed by the antenna manufacturers. That limitation does not apply to AM and DTV applicants. The Commission did not set requirements for what software products must be used in this modeling, only that commercially available software be identified and custom software include a description of the software and methods sufficient for potential replication.

The Commission emphasizes that these rule changes will provide for more accurate proofs of performance and decrease the time and costs of verification for applicants. As you prepare to file license applications for FM and LPFM antennas, contact your FHH Law attorney for the most up-to-date requirements.

Media Bureau Announces Transition of Additional Filings to Licensing and Management System (LMS)

The FCC announced this week that various additional applications must soon be submitted through the LMS online electronic system. Specifically, commencing May 17, 2022, the following filings are required to be submitted through LMS:

  • FM Engineering Special Temporary Authority (STAs)
  • Request for Silent STA
  • Extension of Silent and Engineering STA
  • Suspension of Operations Notification
  • Resumption of Operations
  • AM and FM Digital Notification
  • Modification Dependent Carrier Level (MDCL) Notification
  • Change of Primary Station Notification
  • Tolling Notification
  • Reduced Power Notification
  • Pending Application Withdrawal

The filings listed above should no longer be filed via email. If they are, the FCC will dismiss them as procedurally defective.

The following applications, on the other hand, should still be sent to audiofilings@fcc.gov:

  • AM Application for Construction Permit for Commercial Broadcast Station on Form 301
  • AM Application for Construction Permit for Reserved Channel Noncommercial Educational Broadcast Station on Form 340
  • AM Applications for Broadcast Station License on Form 302
  • Initial AM Engineering STA
  • Change in official mailing address
  • Amendments to pending applications previously submitted in CDBS
  • Pleadings (Petitions to Deny, Informal Objections, Oppositions, Replies, Supplements, Petitions for Reconsideration and Applications for Review) concerning applications submitted through CDBS or audiofilings@fcc.gov.

If you have questions, don’t hesitate to contact us here at FHH Law.

Upcoming FCC Broadcast Deadlines for May – July

June 1, 2022

Television License Renewal Applications Due – Applications for renewal of license for television stations located in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming must be filed in LMS.  These applications must be accompanied by Schedule 396, the Broadcast EEO Program Report, also filed in LMS, regardless of the number of full-time employees.  Under the new public notice rules, television  stations filing renewal applications must begin broadcasts of their post-filing announcements concerning their license renewal applications between the date the application is accepted for filing and five business days thereafter and must continue for a period of four weeks.  Once complete, a certification of broadcast, with a copy of the announcement’s text, must be posted to the Online Public Inspection File (“OPIF”) within seven days.

EEO Public File Reports – All radio and television station employment units with five or more full-time employees and located in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming must place EEO Public File Reports in their OPIFs. For all stations with websites, the report must be posted there as well. Per announced FCC policy, the reporting period may end ten days before the report is due (May 21), and the reporting period for the next year will begin on the following day.

July 10, 2022

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, listings of each station’s most significant treatment of community issues during the second quarter of 2022 must be placed in the station’s online public inspection file.  The lists should include brief narratives describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program with a brief description of the program.  The issues may be either local or national, so long as they are of concern to the local community.

Class A Television Stations Continuing Eligibility Documentation – The Commission requires that all Class A Television Stations maintain in their online public inspection files documentation sufficient to demonstrate that the station is continuing to meet the eligibility requirements of broadcasting at least 18 hours per day and broadcasting an average of at least three hours per week of locally produced programming.  While the Commission has given no guidance as to what this documentation must include or when it must be added to the public file, we believe that a quarterly certification which states that the station continues to broadcast at least 18 hours per day, that it broadcasts on average at least three hours per week of locally produced programming, and lists the titles of such locally produced programs should be sufficient.

FCC Open Meeting on April 21st

On April 21, 2022, the FCC will be hosting its monthly open meeting. The docket includes improving receiver performance, wireless emergency alerts, and two restricted adjudicatory matters.

The FCC will consider a Notice of Inquiry to promote more efficient use of spectrum through improved receiver interference immunity performance, thereby facilitating the introduction of new and innovative services. The Notice of Inquiry would develop an up-to-date record on the role of receivers in spectrum management. This notice would also lay the foundation for future Commission actions that can promote improvements in receiver performance.

The FCC will also consider a Further Notice of Proposed Rulemaking. Since its launch one decade ago, Wireless Emergency Alerts (WEA) has become an essential part of America’s emergency preparedness. WEAs have been used more than 61,000 times to warn the public about dangerous weather, missing children, and other critical situations through alerts on compatible cell phones and other mobile devices. On the 10th anniversary of WEA, the FCC seeks to further improve the effectiveness of this critical public safety tool by building on the Commission’s prior proposals and refreshing the record on whether it should require participating wireless providers to file public reports with the Commission on WEA’s reliability, speed, and accuracy.

The meeting will be available for public viewing via live feed on the FCC’s website.

Update to FCC’s Covered List: The Commission Identifies Three New Companies as National Security Risks

Last Friday, the FCC expanded its list of companies it believes pose a risk to U.S. national security. The new additions include equipment and services from three companies: Russia’s AO Kaspersky Lab, China Telecom (Americas), and China Mobile International USA Inc.

Since March of 2021, the Public Safety and Homeland Security Bureau has maintained a list of companies (often called the “Covered List”) it believes pose threats to national security pursuant to Section 2 of the Secure Networks Act. The latest additions to the Covered List are part of an ongoing effort to clamp down on risks associated with foreign government-controlled companies.

“Today’s action is the latest in the FCC’s ongoing efforts, as part of the greater whole-of-government approach, to strengthen America’s communications networks against national security threats, including examining the foreign ownership of telecommunications companies providing service in the United States and revoking the authorization to operate where necessary,” said FCC Chairwoman Jessica Rosenworcel.

With last Friday’s additions, the Covered List now contains eight companies, which means money from federal subsidies, including the FCC’s Universal Service Fund, may not be used to purchase, rent, lease, or maintain any of these companies’ (or their affiliates’ or subsidiaries’) products or services.

To view the Covered List in full, visit: List of Equipment and Services Covered By Section 2 of The Secure Networks Act | Federal Communications Commission (fcc.gov).

FHH Attorneys on the Faculty of the NAB Leadership Foundation’s Broadcast Leadership Training Program

On March 25th our very own Frank Montero and Seth Williams presented on the subject of broadcast station acquisitions to the most recent class of industry leaders. This training was part of the NAB Leadership Foundation’s Broadcast Leadership Training Program (BLT). FHH is a proud sponsor and provides several faculty members to the BLT program.

The BLT program is a 10-month Executive MBA-style program created by the National Association of Broadcasters Leadership Foundation to provide rising executives with the specific knowledge and skills necessary to assess, buy, own, and operate radio and television stations. BLT is highly competitive and provides “a blueprint for talented business people to become a greater part of the broadcast industry and increase the diversity of voices available to the public.”

For more information about the program, review the BLT website. Applications are due by May 31. If you’re selected for next year’s class you too could be rocking a pair of CommLawBlog sunglasses!

New FCC Foreign Sponsorship Identification Rules for Broadcasters Effective Today

FCC rules requiring radio and television stations to broadcast disclosures for programming provided by foreign governmental entities go into effect today over the objection of some broadcast groups. Broadcasters are required not only to fully comply moving forward, but must also ensure that their existing airtime lease agreements come into compliance as soon as reasonably possible.

These new rules require broadcasters to identify sponsors for programming content aired on a station, pursuant to a lease of airtime, if the sponsor qualifies as a “foreign governmental entity.”

Let’s break that down:

Who meets the definition of a “foreign governmental entity”?

This includes governments of foreign countries, foreign political parties, certain agents of foreign principals, and U.S.-based foreign media outlets.

How will you know if you’re dealing with a “foreign governmental entity”?

We recommend following these steps:

  1. Inform the programmer of your foreign sponsorship disclosure obligations;
  2. Directly ask the programmer whether they fall into one of the above categories;
  3. Ask the programmer whether anyone involved in producing/distributing the programming qualifies as a foreign governmental entity;
  4. If the programmer denies any connection to a foreign governmental entity, independently verify their status by consulting the Department of Justice’s FARA website and the FCC’s semi-annual U.S.-based foreign media outlets reports; and
  5. Document and maintain a record of steps 1-4 above in case of future FCC inquiry.

What are you required to say, and when?

“The [following/preceding] programming was [sponsored, paid for, or furnished,] either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].”

This message must be read (or displayed by television stations) at both the beginning and end of the programming, unless either: (a) it is five minutes or less in total, in which case, it can be provided at either the beginning or conclusion, or (b) the program exceeds sixty minutes in duration, which would require it to be read at regular intervals, at least once every hour.

Whether or not these new rules will remain in place is still unclear, however, as an appeal has been filed jointly by the NAB, MMTC and NABOB. As always, we will keep you updated here with any developments.

You can read the original order at this link.

If you have any questions, please don’t hesitate to call us here at FHH.

FCC License Renewal Applications due on April 1st for Radio Stations in Delaware and Pennsylvania, and TV Stations in Texas

FCC License renewal applications and associated EEO Program Reports are due on or before Friday, April 1st for radio licensees located in Delaware and Pennsylvania and television licensees in Texas. Radio and television stations must file renewals regardless of commercial or noncommercial status in the FCC’s licensing Management System (LMS).  Both television and radio licensees must include Schedule 396, the Broadcast Equal Employment Opportunity Program Report, in their renewal application.

The FCC also requires radio and television licensees to provide local post-filing public notice of their renewal applications. Pre-filing announcements are no longer required.  Listeners and viewers may review the station’s filing and file comments regarding renewal applications

For more details on the procedures and timing requirements for public notice, licensees should review the Commission’s Local Public Notice Requirements on their Broadcast Radio License Renewal Page and the Broadcast Television License Renewal Page.

As we have noted, a major focus of the FCC’s review is a thorough inspection of the station’s on-line public inspection file (OPIF).  For that reason, we urge all stations with upcoming license renewals to begin a thorough review of their OPIFs.  Any incomplete filings or late filings in the station’s OPIF will be disclosed in the renewal application.  Fletcher Heald maintains an archive of resource materials on public file maintenance.

For more information on upcoming license renewal deadlines, licensees can view the complete deadlines by state for radio and deadlines by state for television.

Political Broadcasting Webinar Now Available On Line

On February 24, 2022, Fletcher, Heald & Hildreth attorneys Frank Montero and Sara Hinkle teamed up with Bobby Baker, Gary Schonmen, and Sima Nilsson of the FCC’s Political Programming Staff to present a webinar on the FCC’s political broadcasting rules. The webinar, presented in collaboration with over twenty state broadcast associations, addressed a number of topics, including equal time, issue ads, lowest unit charge, political file maintenance and the most recent FCC revisions to the political broadcasting rules.

You can watch the webinar on Fletcher, Heald & Hildreth’s YouTube channel. Be sure to subscribe to Commlawblog to receive the latest in our legal webinar series and feel free contact us if you have any questions.

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