Amber Heard's Washington Post op-ed may have defamed Johnny Depp, even though he isn't named in it, a Virginia judge has ruled.
Depp in March 2019 sued Heard, claiming that an op-ed she wrote for the Washington Post defamed him by implying that he's a domestic abuser, even though he's not specifically mentioned. After losing a bid to dismiss the case on jurisdictional grounds, Heard filed a demurrer arguing the statements aren't actionable.
In a Friday letter to the parties, Judge Bruce D. White wrote that Depp has met the requirement to "plead allegations of an implied defamatory meaning, that is in fact defamatory, as well as circumstances that would reasonably cause the statements at issue to convey an alleged defamatory meaning."
White notes that editorials and op-eds are typically not actionable because opinions by their nature aren't defamatory, but Virginia law provides a cause of action for defamation that "may be made by inference, implication, or insinuation." In evaluating such claims, White draws all fair inferences in Depp's favor and considers evidence that has been presented to provide context, specifically events surrounding their divorce.
The statements that White agrees could potentially rise to defamation by implication are:
— "Amber Heard: I spoke up against sexual violence — and faced our culture's wrath. That has to change."
— "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."
— "I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse."
White did strike a fourth statement: "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."
The statement, White found, is too "opinion-laden" and representative of Heard's perspective to be actionable, "[e]ven in light of the somewhat relaxed defamation by implication standard set forth by the Supreme Court of Virginia."
White also denied Heard's plea in bar regarding the statute of limitations. Under Virginia law, such claims must be brought within a year. Heard argued that Depp is reviving statements she made in 2016 and Depp argues that the op-ed constitutes a republication under the law, according to White's summary.
"Assuming arguendo that Plaintiff proceeds on a theory of republication, Plaintiff is correct in asserting that the date of republication is the date on which the clock begins running for the statute of limitations in a defamation action," writes White in the letter, which is posted below.
Because truth is an absolute defense to defamation claims, things will likely get ugly and personal as this case moves toward trial — with each side fighting to prove the other was abusive — as they have in Depp's U.K. fight with The Sun. (That trial is currently on hold because of the coronavirus pandemic.)
Heard's attorney Roberta Kaplan on Friday sent The Hollywood Reporter a statement in response to the ruling: “Today’s decision leaves it to a jury to decide the meaning of Ms. Heard’s op-ed and the truth of what she said. As we have said all along, the courts have strong mechanisms in place for determining the truth. Here, we remain confident that Ms. Heard will prevail at trial when the jury is presented with evidence on the question that the Court identified — namely, whether ‘Ms. Heard was abused by Mr. Depp.’”
Depp's attorney Adam Waldman also sent THR a statement: "Today’s Court ruling speaks for itself. Roberta Kaplan’s suggestion that losing their own motion to dismiss was what they had planned all along also speaks for itself. As for Amber Heard’s mythical ‘evidence’ that Ms. Kaplan confidently cites, we and reality both look forward to seeing it."
