During closing arguments in the defamation trial between Johnny Depp and his ex-wife Amber Heard, one of Heard’s attorneys, Benjamin Rottenborn, described a series of Catch-22s that often ensnare women who, like Heard, accuse their partners of domestic violence. “If you didn’t take pictures, it didn’t happen; if you did take pictures, they’re fake,” he said. “If you didn’t tell your friends, you’re lying; and if you did tell your friends, they’re part of the hoax. If you didn’t seek medical treatment, you weren’t injured; if you did seek medical treatment, you’re crazy.” Rottenborn did not name a few other damned-if-you-do scenarios that were advanced by Depp’s ferociously adept legal team in the course of the six-week-long trial: if you surreptitiously record abusive behavior, you are conniving and untrustworthy; if you don’t, it didn’t happen. If you ever try to laugh off your partner’s ghastly behavior—because the “cycle of abuse” is no less terrifying for being so pathetic and predictable—then it’s not abuse. If you talk back or fight back, then you are the real abuser.
The jury was not swayed by Rottenborn’s litany, or perhaps they took it literally. On Wednesday, a panel of five men and two women found that Heard defamed Depp in an op-ed for the Post, in December, 2018, by referring to herself as “representing domestic abuse,” by stating that she witnessed “how institutions protect men accused of abuse,” and by tweeting a link to the online version of the op-ed, which carried the headline “I spoke up against sexual violence—and faced our culture’s wrath. That has to change.” Depp was awarded fifteen million dollars in damages; Heard reportedly plans to appeal. (The jury also found that Depp was liable for defamatory statements that his former attorney Adam Waldman had made about Heard and her friends staging a scene of alleged abuse; they awarded Heard two million in damages.) Heard did not write the headline, and, in the article, she specified that she had been “sexually assaulted by the time I was of college age”—long before she met Depp, who has denied ever hitting or assaulting Heard. In fact, Heard does not name Depp at all in the Post piece, which was proposed and initially drafted by the A.C.L.U., and which argued for reauthorizing the Violence Against Women Act and for preserving Title IX protections against sexual assault in schools. (Neither the Post nor the A.C.L.U. were defendants in Depp’s lawsuit.) The trial, in short, turned the op-ed into an ouroboros: what was intended as a #MeToo testimonial about women being punished for naming their experiences became a post-#MeToo instrument for punishing a woman who named her experiences.
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Heard did accuse Depp of domestic violence when she filed for a temporary restraining order against him, in 2016, and, at that time, she appeared in paparazzi photos and on the cover of People magazine with apparent bruises and lacerations to her face. In bringing the suit against Heard, Depp mounted a case for defamation by implication. The pivotal twelve words in the 2018 op-ed were “Then two years ago, I became a public figure representing domestic abuse.” This is an accurate statement, but Depp argued that Heard was able to make that statement only because she had lied and faked her injuries when she sought the restraining order. The burden of proof rested with Depp’s side to demonstrate that Heard had engineered an abuse hoax across several years, that the “defamatory implication” of her op-ed “was designed and intended by Ms. Heard,” and that she had acted “with actual malice,” which the Supreme Court, in New York Times Co. v. Sullivan, in 1964, defined as making a statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”
It would have seemed to be Heard’s case to lose. “One time, ladies and gentlemen, one time—if he abused her one time, Amber wins,” Rottenborn told the jury. “Actually, if he fails to prove that he never abused her one time, Amber wins.”
And yet she lost. She lost despite vile text messages from Depp, spinning out violent fantasies of rape and murder. She lost despite photograph after photograph of cuts, bruises, and swelling. She lost despite audio recordings of Depp verbally abusing her. She lost despite her sister, multiple friends, a makeup artist, and a couples counsellor attesting to seeing her injuries. And she lost despite facing the jury and recounting graphic, painful episodes of alleged physical and sexual violence. Heard, admittedly, was not good on the stand during direct examination—she did a lot of tearless crying, and she often appeared to be performing her sorrow rather than reliving it. (She was much better squaring off with the unconquerable Camille Vasquez, another of Depp’s lawyers. If you didn’t watch the trial, picture Regina George from “Mean Girls” as the defense attorney in “The Accused.”) Then again, if Heard had testified with perfect composure, she might have been pilloried as calculated and unfeeling; if she had cried an ocean, as Patricia Bowman did when she testified against William Kennedy Smith, in his 1991 rape trial, she might have been ridiculed as messy and hysterical, just as Bowman was. But that returns us to Rottenborn’s list of all the pincer movements that close in on abuse victims. The accuser’s affect and presentation are somehow a more damning incrimination than, say, a video of her alleged abuser trashing a kitchen.
Heard also lost because her legal team could not catch a break. They did not succeed in moving the case from Virginia, where Depp filed suit and where the Post’s servers are situated, to California, where Depp and Heard reside, where much of their relationship unfolded, and where legal protections (known as anti-SLAPP laws) for people who speak up on matters of public interest—such as preventing domestic violence—are significantly stronger than in Virginia. They could not get the case dismissed after the High Court in London, in 2020, ruled against Depp in his libel claim against the tabloid the Sun, which called him a “wife beater”; the judge in that case found that twelve of Heard’s fourteen abuse accusations as presented in court were proven to be “substantially true.” They could not exclude from the jury pool a man who read out the following text from his wife: “Amber is psychotic. If a man says a woman beat him, they never believe him.” They could not present evidence in Heard’s favor that the judge, Penney Azcarate, ruled out as hearsay, including testimony from seven medical professionals that Heard had reported contemporaneous episodes of abuse to them and a series of text messages from one of Depp’s employees, Stephen Deuters, in which Deuters appears to acknowledge that Depp physically harmed Heard on an airplane. (“When I told him he kicked you, he cried.”)
But the two most crucial strikes against Heard may have been that Azcarate permitted cameras in the courtroom and did not sequester the jury—a perfect one-two for Depp’s online brand of asymmetrical warfare. Trials are not often live-streamed in Virginia; that one centered on allegations of domestic abuse, including sexual assault, was televised is downright shocking. (Certain passages of Heard’s testimony in the U.K. case were kept confidential even in the final ruling; in the U.S., those details, as recounted by Heard in Virginia, were made available on YouTube in perpetuity.) The trial’s live stream provided hours of raw material for the fancams, TikTok lip-synchs, and cheapo animations that the pro-Depp legions used to saturate every corner of digital space. “Remember tonight do not do any outside research,” Azcarate would often admonish the jury when they took a break, revealing a naïveté about the inexorable seepage of the #JusticeForJohnny movement into every social-media feed. To “research” the case only required glancing at TikTok, Twitter, YouTube, or Instagram, where Heard was cast as the delusional harpy and Depp as the lovable rogue. (As Amanda Hess wrote, in the Times, “I did not follow the defamation trial between Johnny Depp and Amber Heard—it followed me.”)
In a previous piece, I wrote about how this trial evoked revenge porn in forcing the defendant to document and participate in her own spectacular humiliation in front of a judge, a jury, and the viewers at home. If Depp’s prime motivation in bringing the suit against Heard was to embarrass and stigmatize her, then he would have won, regardless of the verdict; that he became a men’s-rights folk hero in the process may have come as a surprise even to him. Others have already taken cues from his success. In March, Depp’s longtime buddy Marilyn Manson, who is godfather to Depp’s daughter, filed a defamation lawsuit against the actress Evan Rachel Wood, who has publicly accused Manson of emotional abuse and rape. Meanwhile, domestic-violence advocates have spoken widely of the chilling effects of the case—that victims may conclude from these proceedings that they will be disbelieved, harassed, shamed, and ostracized if they press charges or share their experiences. The real legacy of this entire ugly debacle, then, may never be fully known: a palimpsest of stories not told, of justice not sought.