What Exactly Is the “Defamation” in Amber Heard’s Op-Ed That Johnny Depp Is Fighting?

Despite my desire to keep away from this case, the defamation suit between Johnny Depp and Amber Heard has become a cesspool. The amount of misinformation and clickbait titles is enough to actively make your head spin—especially when so many things can be debunked if you look beyond the surface information. But I wanted to address the central point of the case, which is whether Heard’s 2018 op-ed about abuse qualifies as defamation.

For example, this Yahoo article (with a title that implies one thing, but is more dubious when you read the inside) says,

Jack Whigham [Depp’s talent manager], said in Depp’s defamation trial against his ex-wife that Disney’s movie chief Sean Bailey and “Pirates of the Caribbean” producer Jerry Bruckheimer verbally sealed a deal in around 2016 to pay Depp $22.5 million for the sixth movie in the series.”

[…]

Whigham said the op-ed had a “catastrophic” effect on Depp’s career.

“With respect to Johnny, it was catastrophic, because it was a first-person account,” Whigham said. “It was not from a journalist, it was not from an observer, it was from someone saying, ‘This happened to me.'”

Shortly after the op-ed’s publication, Bailey told the Hollywood Reporter that Disney would not move forward with Depp in the “Pirates of the Caribbean” franchise. Warner Bros. also recast him in the “Harry Potter” spinoff movie franchise, “Fantastic Beasts,” replacing him with Mads Mikkelsen.

(via Yahoo)

Defamation means, according to Cornell Law School’s Legal Information Institute, “a statement that injures a third party’s reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements).” The institute also states that to prove defamation in court, “a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.”

What the op-ed actually said

With that in mind, and the accusation above, let’s look at the timeline of events and the op-ed itself, since the crux of Depp’s lawsuit is that Heard damaged his career with the op-ed, resulting in his firing from the Pirates of the Caribbean franchise. It has been noted that the op-ed does not mention Depp by name, but let’s actually look at what it did say. You can read the whole thing here, but this is the meat of the article:

Like many women, I had been harassed and sexually assaulted by the time I was of college age. But I kept quiet — I did not expect filing complaints to bring justice. And I didn’t see myself as a victim.

Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.

Friends and advisers told me I would never again work as an actress — that I would be blacklisted. A movie I was attached to recast my role. I had just shot a two-year campaign as the face of a global fashion brand, and the company dropped me. Questions arose as to whether I would be able to keep my role of Mera in the movies “Justice League” and “Aquaman.”

I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.

Imagine a powerful man as a ship, like the Titanic. That ship is a huge enterprise. When it strikes an iceberg, there are a lot of people on board desperate to patch up holes — not because they believe in or even care about the ship, but because their own fates depend on the enterprise.

(via WaPo)

Going through the rest of the op-ed, the entire thing is not actually about Johnny Depp; it is about how institutions and the public punish women for coming out with allegations of abuse by powerful men, which (a) is true and (b) brings attention to the culture, not one individual. There is no discussion of any violence that Depp allegedly committed against Heard in the article, either. While the man whose institutional protection Heard wrote that she had a “rare vantage point” on was undoubtedly Depp, even then, she only referred to him as “accused of abuse,” which he had definitely been. It’s hard to see what the “false statement purporting to be fact” could be.

The fact that their marriage ended and she made allegations of domestic abuse was not only on the public record, but also, in their joint statement after they divorce, it was stated: “Our relationship was intensely passionate and at times volatile, but always bound by love. There was never an intent of physical or emotional harm. Neither party has made false accusations for financial gains.” And this was back in 2017.

In the article, when she mentioned death threats, she was, again, talking about public harassment she very factually faced:

I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion — and my life and livelihood depended on myriad judgments far beyond my control.

Again, not about Depp. This is about the culture of harassment that victims face. And regardless of whether you like Amber Heard or even whether you believe her, all it takes is a look on social media to see that she’s very clearly dealing with an intense amount of public harassment and cruelty. Not to mention, anyone who supported Amber Heard publicly (myself included) was harassed, told that they didn’t believe women could be abusers, and dismissed as only siding with Heard because she was a woman.

Earlier today, Judge Penney Azcarate ruled on Heard’s mid-trial bid to dismiss the $50 million defamation case. Azcarate did not agree with the motion, but this sort of bid is standard in a case like this, and it was not expected to be work.

The Hollywood Reporter also provided some insight into why this case is taking place in Virginia and the argument by Ben Chew, Depp’s lawyer, as to why the op-ed is being labeled defamatory.

While statements in columns don’t ordinarily constitute defamation, Virginia law recognizes that there can be defamation by inference or implication.

Of the allegedly defamatory statement concerning Heard becoming a “public figure representing domestic abuse,” [Ben] Chew argued that the statement can be “read to imply that she became a figure because she was abused by Mr. Depp, not because she spoke out about” the issue. He cited testimony from police officers challenging Heard’s claim that Depp beat her.

This feels like a reach and taking advantage of Virginia’s law to drag all of this through the mud again—at least, that’s my take on it.

Was the op-ed really what damaged Depp’s career?

Then, there’s the matter of whether the op-ed provably damaged Depp’s career. Heard’s op-ed was published in December of 2018. Pirates of the Caribbean: Dead Men Tell No Tales came out in 2017. It did well financially, but it brought in the lowest box office total of the series. Additionally, looking at the reviews for Depp in that film, they were not good. In 2018, before Heard’s op-ed came out, a Rolling Stone article came out that reported the following information:

It’s estimated that Depp has made $650 million on films that netted $3.6 billion. Almost all of it is gone. He’s suing The Management Group, run by his longtime business manager, Joel Mandel, and his brother Robert for negligence, breach of fiduciary duty and fraud. The suit cites, among other things, that under TMG’s watch Depp’s sister Christi was given $7 million and his assistant, Nathan Holmes, $750,000, without his knowledge, and that he has paid the IRS more than $5.6 million in late fees. (Most of the ire is directed toward Joel, who had day-to-day responsibility for Depp’s account.) There are additional charges of conflict of interest, saying that TMG invested Depp’s money for its own purposes and returned it without profit. The suit seeks more than $25 million from TMG, accounting for “tens of millions” it claims TMG illegally took for its commission, plus any additional damages the court sees fit.

The Mandels categorically deny all wrongdoing and are countersuing, alleging that Depp breached his oral contract with the company. The suit suggests that Depp has a $2-million-a-month compulsory-spending disorder, offering bons mots like “Wine is not an investment if you drink it as soon as you buy it.” Depp was continuing to “concoct malicious and false allegations” against the company, according to TMG’s countersuit, because TMG had filed a private foreclosure notice on one of Depp’s properties, claiming Depp owes TMG $4.2 million in unpaid loans.

[…]

Over the past 18 months, there has been little but bad news for Depp. In addition to the financial woes, there were reports he couldn’t remember his lines and had to have them fed to him through an earpiece. He had split from his longtime lawyer and agent. And he was alone. His tabloid-scarred divorce from actress Heard is complete, but not before there were persuasive allegations of physical abuse that Depp vehemently denies. Depp’s inner circle had begged him to not wed Heard or to at least obtain a prenup. Depp ignored his loved ones’ advice. And there were whispers that Depp’s recreational drug and alcohol use were crippling him.

Before Amber Heard ever published her op-ed, Rolling Stone wrote up this profile, and it is a damning insight into Depp. It says the allegations of abuse were persuasive, and it also shares reports about him not remembering his lines on Pirates and the damage of his alleged drug problems. Not only that, but it paints him as a major financial liability.

That financial liability was previously covered in a 2017 The Hollywood Reporter piece. In the piece, it was noted that in addition to concerns about Depp’s “personal peccadilloes,” he’d lost Disney money previously, with the Alice sequel being a box office bomb that cost the company almost $200 million.

[…] sources close to the production report tales of excessive drinking, physical fights with Heard and constant lateness on set, which often left hundreds of extras waiting for hours at a time. Time and again, Bruckheimer, an assistant director and a flotilla of Disney executives led by production chief Sean Bailey were forced to huddle and debate how to handle their star’s tardiness. “He’s not a morning person,” quips one member of that group.

[…]

Depp’s lateness and alleged heavy drinking caused enough concern that Jacobs, his then-agent, got into an argument with Bruckheimer when they were waiting on a set in the Gold Coast suburb of Helensvale. “She went over to Jerry and said, ‘You’ve got to do something! You’re the producer,’ ” recalls the production source. “He said, ‘You do something. You’re the agent.’ ” (Bruckheimer denies the spat took place.) “Everyone was an innocent bystander watching this train wreck,” the source continues. “But when Johnny came on set, he was charming, nice. He’s yin and yang.”

All of this career-damaging reporting was on the record and out in public before Heard’s op-ed. The final thing I’ll mention that predated the op-ed was in that, in 2017, J.K. Rowling talked about being glad that Depp was cast in Fantastic Beasts, and director David Yates agreed, as well. In April 2018, before Rolling Stone or the op-ed, The Sun published an article titled “GONE POTTY How Can J K Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?“

In response, Depp sued the News Group Newspapers, the company publishing The Sun, and writer Dan Wootton for libel. He claimed that the article was an attempt to make readers think he was a domestic abuser and to get Rowling to drop him from the Fantastic Beasts film. Now, The Sun is a trash publication, and the great irony is that if you read the article, it is mostly a drag against J.K. Rowling for her “woke” politics. The writer even lists questions that Rowling should answer as a “defender of women.”

So today I publish five questions Rowling MUST answer:

Do you take domestic violence accusations as seriously as sexual harassment given your support of the Me Too movement?
If so, do you believe Amber Heard’s detailed 2016 court filing detailing abuse allegations by Johnny Depp, which included pictures showing her injuries and on the record accounts by other witnesses?
Why did Depp agree to pay £5 million as a settlement, including a confidentiality agreement, if there was no truth to the allegations?
You admitted last year there were “legitimate questions” about Depp’s casting. What were these and how did you overcome them?
Heard appeared to suggest on Instagram that you had taken her divorce statement “out of context” in order to defend Depp’s casting. Have you spoken to her directly?
Warner Bros releases the Depp-fronted film in November.

While Rowling has an inability to ever admit she’s made a mistake, it’s not too late for a last-minute re-cast. It would cost millions, but Rowling has the money.

I believe it is the only decision that would show she’s a woman of true character and principle, even when her famous friends are involved.

While the mention of recasting is certainly there, this is a “Gotcha, Rowling” piece, with Depp being the prompt to indict her character. Still, Depp sued The Sun in June 2018, and that was the first time he alleged that Heard was the real abuser—all this very public discourse that made Heard every bit a public figure representing domestic abuse, before Heard wrote/published her op-ed, which came out months later.

Depp didn’t lose his role in Harry Potter until he lost The Sun case because they were able to provide 14 incidents of domestic violence against Heard, with 12 being confirmed. I do also find it bitterly amusing that, if you look at this timeline, it is Depp who broke their settlement agreement to not discuss their relationship in public by literally suing a major newspaper and saying the information about their relationship was a hoax.

Divorce settlement – who gets what?
Depp to pay Heard $7m (£5.6m; €6.6m)
Heard to keep dogs Pistol and Boo, and a horse called Arrow
Depp to retain sole possession of real estate assets, including properties in LA, Paris and his private island in the Bahamas
He will also keep more than 40 vehicles and vessels, including vintage cars and motorcycle collection
Heard to drop request for continued restraining order against Depp
Confidentiality provision prevents them from discussing relationship publicly
No spousal support for either actor

(via BBC)

The announcement of a Johnny Depp-less Pirates franchise was made public on December 20, 2018, in an interview with The Hollywood Reporter. The Heard op-ed came out on December 18. Correlation is not causation, and there is no way to prove, unless Bailey says so, that Heard’s op-ed tipped the scales more than anything else.

Depp is arguing that Amber Heard committed defamation with her op-ed. I’m not a lawyer, but since a lot of non-lawyers have no problem discussing this case as if they have passed the bar, I have to say that it’s really clear that she hasn’t. Not only hasn’t she, but even if you set aside the matter of whether her op-ed made any provably false statements about Depp, there is no way to prove that it was what hurt his career in the midst of the other major articles that came out before it, with actual details about his behavior and actions.

Filing a lawsuit against a major news corporation, when you are allegedly in millions of dollars in debt and the litigation would take you out of the country and make you unable to work, seems like something that a person would get fired for—especially when you haven’t had a major box office hit in a while. Money is the thing that matters to people.

Watching this case play out on social media and the way in which TikTok and YouTube content creators have swooped down like vultures to turn this into a meme is gross. Even if you are a supporter of Johnny Depp, the social media response in his favor is not at all correct for a case dealing with domestic violence.

According to a screenshot provided by a source close to Heard, one Twitter user named “chloe” wrote on April 13: “who wants to join me in my expedition to brutally murder Amber Heard”; another named Nah’ wrote a week later: “#AmberHeard you big bobble head butch I’m coming for you when you get outta court hoe you lying ass big faced butch it’s up.” Rolling Stone has viewed the archived tweets, which were both subsequently deleted (both accounts remain active). Similar sentiments are not hard to find. Also on April 13, a user with the handle @histry_huh tweeted: “Brb on my way to go murder Amber Heard that fucking psycho #JusticeForJohnnyDepp.”

(via Rolling Stone)

I truly cannot understand how this can be seen as “mutual” when it has been clear since the couple originally got together that public perception was never in Amber’s favor. The moment there was any doubt, she was thrown away, and no matter how much clarification, evidence, and revealing of bad behavior is done, even if she wins this case, her career and reputation will never recover. All because she acknowledged that she had been made a public figure of domestic violence. Great message.

(featured image: Ilya S. Savenok/Getty Images for Create & Cultivate)