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.