Johnny Depp is suing Amber Heard for defamation, alleging false statements of facts contained in a Washington Post op-ed authored by Ms. Heard in December of 2018. The op-ed contains the following statement of fact: “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.” The op-ed does not mention Mr. Depp, nor does it provide any details of their relationship. Mr. Depp’s complaint alleges that he is identified by implication, the timeline referencing Ms. Heard’s successful attempt to obtain a restraining order against him in 2016. The Washington Post initially published the op-ed with the following headline: “Amber Heard — I spoke up against sexual violence — faced our culture’s wrath. That has to change.” Ms. Heard did not write the headline, and would thus not be liable for its contents as published. However, she did link to the article via Twitter, raising a somewhat technical argument as to whether she could be liable for republishing allegations of sexual abuse specifically. For republication via hyperlink or retweet to be actionable as defamation, the jury would have to find that Ms. Heard added content when she linked, and it does not appear that she did.
This means that Mr. Depp’s entire $50,000,000.00 defamation claim likely comes down to this: He must prove that he never once abused Amber Heard in a ‘domestic’ sense. Interestingly enough, Mr. Depp now finds himself facing the same challenge that victims of domestic abuse often face. He must prove conduct (or the absence of conduct) where the conduct in question may not result in any tangible evidence, and where the only percipient witnesses are the alleged perpetrator and victim. So how exactly does one go about proving that they never grabbed their partner’s vagina, forced them to perform oral sex, or subjected them to an involuntary body cavity search?
Apparently, you do this by proving that the alleged victim is actually completely psychotic, violent, and not to be taken seriously in anything she says. You prove, in essence, that the alleged victim is the ‘real abuser’.
Some of Mr. Depp’s allegations appear ludicrous. Mr. Depp alleged that Ms. Heard threw a vodka bottle at him in Australia, shattering on the counter of the bar where he was resting his right hand and severing part of his middle finger. The finger was unquestionably injured, and X-rays would later show a “comminuted fracture” of the bone in the fingertip. This story seems plausible until you see a picture of the injury. It instantly looks wrong. Without forcing anyone to look at it, it doesn’t look like a cut going through the finger, it looks like a divot somehow came out from under the fingernail and above the tip. Ms. Heard’s expert witness, Dr. Richard Moore, referred to it as an avulsion rather than a laceration. He also noted the lack of a “subungual hematoma” (or blood) under the fingernail, which would have occurred if the fracture had been sustained via blunt force coming down on top of the finger as Mr. Depp described. Further, the bottle in question was described as a large, half-gallon bottle of vodka. This bottle somehow magically managed to shatter on the hard edge of the bar in spite of the fact that it supposedly landed essentially on Mr. Depp’s hand on top of the bar. It also magically cut his middle finger without causing lacerations anywhere else on the hand, and magically without leaving glass anywhere in the injury. Mr. Depp gave differing accounts of the injury immediately after, either taking responsibility or blaming Ms. Heard, but the coup de grace is a private recording of him with Ms. Heard wherein he refers to the day he cut off his own finger. The vodka bottle probably never happened.
Mr. Depp’s case for Amber Heard as the real abuser gets much stronger when you listen to the audio recordings they made. Mr. Depp claimed at one point that he tried to escape an encounter with Ms. Heard, fled to a bathroom, and tried to close the door. Ms. Heard slipped her foot under the door to prevent him from closing it, screamed in pain, and then kicked the door into his head when he bent down to investigate. This one may have actually happened, and she seems to be apologizing to Mr. Depp for it in a recording.
Mr. Depp’s legal team also introduced a recorded deposition from Dr. Laurel Anderson, who provided therapy to the troubled couple. Dr. Anderson testified under oath that she thought both Mr. Depp and Ms. Heard physically abused one another. According to her testimony, Ms. Heard reported that in the early stages of the relationship, Mr. Depp would initiate violence and she would respond. Ms. Heard also reported, however, that later on she would sometimes be the aggressor and strike Mr. Depp first. Mr. Depp’s take on the relationship was that it was “chaotic” and “violent,” but that Ms. Heard “gave as good as she got.” Dr. Anderson also testified that she thought that Mr. Depp would attempt to deescalate violent conflicts more frequently than Ms. Heard.
Ms. Heard introduced expert testimony from Dr. Dawn Hughes, who gave similar testimony in court. According to Dr. Hughes (reviewing notes from Amber Heard’s therapists), in the early part of the relationship, Mr. Depp would physically and sexually abuse Ms. Heard, and later Ms. Heard took to punching Mr. Depp. Dr. Hughes only differed materially as to Dr. Anderson’s opinion that the abuse was mutual, given that Mr. Depp at all times retained a dominant position in the relationship overall.
So Mr. Depp can credibly say that, at least on occasion, he was actually the victim of abuse.
Here’s the problem.
This is not an ‘abuse’ case.
It’s a defamation case. The only question at issue in Mr. Depp’s lawsuit is whether Ms. Heard made a false statement of fact concerning Mr. Depp. The basis for the lawsuit is that she implicitly accused Mr. Depp of abusing her in an op-ed. The op-ed never mentions Mr. Depp, and never mentions any specific incidents of abuse. If Ms. Heard was abused at any point by Mr. Depp, her implicit statement is essentially true. Counterfactually, if she had written that Mr. Depp had abused her on a particular occasion and that she’s a sweet, innocent angel who didn’t do anything wrong when in fact she had initiated the violence between them on that occasion, then maybe she has a problem. She didn’t do that.
In reality, Mr. Depp essentially admitted to their couples therapist that he committed acts of violence against Ms. Heard. One could fairly argue that Ms. Heard is a flawed representative of the #metoo movement, but that’s a different question from whether Ms. Heard committed defamation. As it is, Mr. Depp is on track to lose his defamation claim, and he is on track to lose in part because of deposition testimony his own legal team introduced.
Prediction: Ms. Heard wins on Mr. Depp’s defamation claim, loses her defamation counterclaim against him, and both sides get sent away empty-handed.
Drop your hot takes & predictions in the comments.
Key testimony from Dr. Laurel Anderson and Dr. Dawn Hughes below.