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  • Survivors Be Heard

The Possible Implications of New York Times v. Sullivan & Depp v. Heard

Updated: Jul 18

Written by Redditor CaribbeanDahling Survivors Be Heard does not necessarily endorse the views of guest writers.


While LawTubers have retreated and will likely not mention the Depp v. Heard case until the next significant motion or hearing, I’ve decided to make a list of some grounds for Heard’s appeal. Hopefully it provides guidance on what to say when people say there’s “no way” Heard can win on appeal. All information is from primary sources. If I link a secondary source, it’s to provide an easy-to-read interpretation of a primary source and the primary source should be linked within the secondary source cited.

Believability has nothing to do with defamation law. Heard never had the burden to prove that what she said was true and Depp did not meet the high standard of proving with clear and convincing evidence that what Heard said was made with actual malice. The verdict is the result of a relentless social media campaign that justified hate towards Heard and everyone who dared to defend her.


American courts are slow, and it will likely take up to 2 years for the appellate process to be completed. In the meantime, I think it’s important that people are equipped with the proper legal language and context to rebut any claim that Friday’s order is the last we’ll see of this case.


I did not analyze the counterclaim because it seems to be an insignificant point in the public conversation, but most of the analysis can be applied to either party’s claim.

Heard’s Alleged Defamatory Statements (original WaPo Article)

  1. “I spoke up against sexual violence — and faced our culture’s wrath.”

  2. “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.”

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

Outline

  • The Controlling Supreme Court Case:

  • VA Anti-SLAPP Statute

  • Personal jurisdiction

  • Statute of limitations

  • Defamation by Law

  • Burden of Proof

  • Justice Clarence Thomas’ Dream Defamation Case

  • Random Comments

 

The Controlling Supreme Court Case

Read the 1964 SCOTUS opinion, here. In 1960, a group of civil rights activists took out a full-page ad in The New York Times to call for financial support for their cause in Alabama. The ad provided examples of Alabama police brutality including arresting MLK Jr. seven times, house bombing, and school protest suppression which included padlocking students in a room to “starve them into submission.”


L.B. Sullivan was the Montgomery Public Safety Commissioner and felt that the advertisement implicated his reputation. Even though he was not named, Sullivan claimed that the reference to “police” referred to him as the supervisor for the Montgomery police department. He noted inaccuracies in the New York Times ad as well, finding that the students were not expelled from school for their demonstration at the Capitol, but for demanding service at the Montgomery County Courthouse lunch counter. Additionally, Sullivan noted that King was only arrested four times, not the seven times noted in the letter.

Sullivan asked the The New York Times to remove the ad, but they refused. Sullivan filed a complaint in Alabama against 4 authors of the letter and The New York Times. The Alabama jury instructions provided that Sullivan could recover damages under libel per se despite failing to prove monetary damages. The Alabama jury awarded Sullivan $500K and the Alabama Supreme Court affirmed the decision. Adjusted for inflation that $500K is equivalent to $4,741,531 today.


The Supreme Court unanimously decided that the advertisement was protected by the First Amendment because "factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless 'actual malice'...is alleged and proved." To meet the actual malice standard, the defaming statements must be made with “serious doubts as to the truth of what is uttered.”


Sullivan’s claim of “inaccuracies” closely parallels the perception of Heard as an unreliable witness. Believability or accuracy is not the basis for finding someone liable for defamation. For context, the Civil Rights Movement was not universally welcomed. The same way the #MeToo movement has critics who believe accountability has unnecessarily burdened the lives of accused men, 45% of Americans believed that integration was moving too fast in 1965.

An applicable comparison is Trump’s full-page ad in The New York Times calling for the death penalty for the Central Park Five. Trump was never found liable for defaming the Central Park Five and has not apologized despite the clear detrimental effects it had on the lives of the five boys and their families.


Anti-SLAPP Law

SLAPP lawsuits are strategic lawsuits against public participation. Currently 32 states have enacted anti-SLAPP statutes to prevent the wealthy and powerful from abusing defamation law to intimidate and silence criticism. You’re probably familiar with John Oliver’s popular video covering his show’s experience with being dragged to West Virginia courts over a SLAPP lawsuit.

Contrary to popular belief, Virginia does have an anti-SLAPP statute. However, unlike other anti-SLAPP statutes, Virginia’s does not provide an avenue for defendants to seek a quick and inexpensive dismissal before discovery. Virginia amended its anti-SLAPP statute in 2020, but the law has been criticized for being vague and applicable only as a defense to the jury at trial. It is not clear whether an anti-SLAPP motion is appealable in Virginia, but this case may provide a relevant precedent.


Personal Jurisdiction

Virginia has a long arm statute that includes having jurisdiction when the injury occurs in the state. An “act” in the state includes a person using a computer network in Virginia. This was how Depp was able to establish personal jurisdiction because The Washington Post has servers in Virginia. Despite meeting the computer provision, there are still questions about whether The Washington Post’s servers caused the injury to occur in Virginia and if either party has established sufficient contacts in Virginia.


An appellate judge would be motivated to dismiss Depp’s claim on personal jurisdiction because the case’s precedent will invite forum shopping that could put a heavy strain on Virginia’s judicial resources.


Statute of Limitations

Defamation has a one-year statute of limitation. “Republishing” the alleged defamatory statements restarts the statute of limitations and adds an additional year from the date of republishing. Looking at the 3 defamatory statements at issue, one might be confused by why the trial required six weeks of testimony about incidents that the average person would not infer from the article. In Depp’s case, the court found that Heard’s 2018 op-ed statements were a republication of Heard’s direct accusations in 2016.

However, there is a strong argument that Heard’s 2016 statements were outside of the statute of limitations even in consideration of the republication extension. Action against Heard’s 2016 comments expired in 2017. Depp only filed his Virginia claim within the one-year limitation for the 2018 WaPo article. It would seem dangerously permissive to allow extensions to vague statements made two years after the initial alleged defamatory statements were made. (Link to comprehensive secondary source.)

It's a classic “rules against perpetuities”-type conundrum. If every two years I make some public statement that vaguely references comments I made many years ago, does this allow a loophole where defamation suits are actionable indefinitely? Again, an appellate judge may deny the claims to avoid overburdening Virginia’s judicial system with perpetual defamation suits.


Defamation by Law

The appellate courts do not decide what facts to believe in a case, but rather whether by law the trial court made the right decision. Eriq Gardner of Puck Media succinctly summed Heard’s stated experiences as: speaking out against sexual violence, becoming a public figure representing domestic violence, and seeing how institutions protect men. Are any of these assertions false by a preponderance of evidence? Did Depp prove with clear and convincing evidence that Heard made these comments with “serious doubts as to the truth of what is uttered”?

Falsity (preponderance)


The plaintiff must prove with a preponderance of evidence (more likely than not) that the alleged defamatory statements were false. It’s hard to see the direct “lie” in Heard’s alleged defamatory statements. Heard became an ACLU ambassador against sexual violence in 2018 and in 2016 Abigail Rowe wrote about the immense backlash Heard faced during her divorce. After the divorce Depp still landed a Dior brand deal, promoted POTC Dead Men Tell No Tales, and featured in Branagh’s Murder on the Orient Express. I am open to arguments that Depp was not protected, but even so Heard can only be liable if she made the statements with actual malice.

Actual Malice (clear and convincing)

The 1968 St. Amant Supreme Court case defined actual malice as having “serious doubts as to the truth of what is uttered.” While social media spent weeks nitpicking every inconsistent detail in Heard’s testimony, most claims do not seem to argue that Heard made these statements with serious doubts as to their veracity. In fact, after Dr. Curry’s testimony, many people suggested that Heard’s courtroom diagnosis suggested she experienced events that never happened. Ultimately even the most damning impeachment evidence does not on its face rise to the level of proving Heard had serious doubts about the truth of her statements. Moreover, Heard never had the burden of proving the truth of her statements.


Burden of Proof

From a juror’s statements to Good Morning America, it seemed like liability completely relied on Heard’s believability. The juror noted that Heard seemed “disingenuous” and that her testimony didn’t provide enough evidence to support what she was saying.

But it was never Heard’s burden to prove that what she was saying was true. Depp had to prove with a preponderance of evidence that Heard’s 3 alleged defamatory statements were false. Depp also had to prove with clear and convincing evidence that the 3 statements were made with actual malice. Clear and convincing evidence generally means that the evidence is highly probable to be true. Some equate the civil “clear and convincing” standard to be substantially more than 50% true. The reliance on Heard’s performance suggests that Depp did not provide sufficient evidence to meet the burden of proof for Heard’s liability.



Justice Clarence Thomas's Defamation Dream

A lot of people are probably wondering why they should care about this celebrity scuffle. The implications seem only to be applicable for people with enough money to go to court and whose reputations would be reasonably hurt by accusations from a partner.

The reason you should care is that Justice Clarence Thomas has been itching for the Supreme Court to accept a case that gives an opportunity to reinterpret the New York Times v. Sullivan standard. In 2019, in a case involving a Bill Cosby victim, Thomas argued that the New York Times case was not grounded in the Constitution’s original meaning and that the actual malice standard was a judge-made rule. Then in 2021, both Gorsuch and Thomas argued that the Supreme Court should hear a case involving a novel that implied an individual had connections to the Albanian mafia and through it reconsider the actual malice standard.

A change in the actual malice standard would disrupt the operations of every newspaper, cable news program, television, film, blog, YouTuber and independent creative active in the USA. This case sets a dangerous precedent even for people who do not care about “celebrity gossip.”

Even if Heard does not appeal the case, Virginia’s new ‘computer standard’ will open the door for a lot of bad actors to file defamation suits in Virginia, significantly increasing the cost of production and liability insurance for creatives in all fields. I’m sure even the most cynical individuals, including LawTubers themselves, do not want to be burdened with considerations about whether a criticism or comment about a public figure would lead to defamation litigation.



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