On Monday, April 11, Johnny Depp’s lawsuit in opposition to ex-wife Amber Heard will transfer ahead in a Virginia courtroom. The case is prone to contain allegations from the couple’s troubled marriage, which resulted in 2017 amid accusations of abuse from each events. However whatever the particulars or the end result of the trial, the go well with might set a nasty First Modification precedent.
The go well with stems from a December 2018 op-ed that Heard wrote in The Washington Publish. Within the transient article, Heard refers to herself as “a public determine representing home abuse.” Although she by no means refers to anybody by title, Depp claimed in a defamation lawsuit filed in early 2019 that “[t]he op-ed’s clear implication” was that he was her abuser. Within the submitting, Depp requested for $50 million in compensatory damages, plus punitive damages and lawyer’s charges.
What makes the go well with peculiar will not be the details however the venue: Depp filed the lawsuit in Fairfax County Circuit Court docket in Virginia. Depp and Heard every dwell in California, they lived in California as a married couple, and the article in query ran in a newspaper based mostly in Washington, D.C. In actual fact, in a movement filed in 2019, Heard claimed that “To one of the best of my information, I’ve by no means traveled to Virginia in my life.”
It’s not instantly clear how Virginia elements into the equation in any respect, till you take into account the state’s weak anti-SLAPP regulation.
SLAPP stands for Strategic Lawsuit In opposition to Public Participation. It refers to a selected kind of defamation declare filed with the intent to close down or intimidate somebody for his or her speech even when it’s not truly defamatory. These fits are comparatively cheap to file however may be ruinously costly to defend in opposition to. A defendant with out appreciable assets might find yourself acquiescing to the lawsuit’s calls for simply to keep away from the effort.
Anti-SLAPP legal guidelines are meant to counterweight such fits. Anti-SLAPP legal guidelines are state legal guidelines that have a tendency to permit defendants to chop off frivolous lawsuits early with out having to undergo the prolonged and costly means of taking such a case to trial, if they will exhibit that the go well with is unlikely to prevail. Some even permit the defendant to be reimbursed for lawyer charges by the one who filed the bogus lawsuit.
Depp faces an uphill battle: To show defamation in opposition to a public determine requires demonstrating that the speaker was motivated by “precise malice,” which means both knowingly mendacity or demonstrating “reckless disregard” over whether or not what they have been saying was true. No matter Depp’s intentions in submitting the go well with, profitable would require proving that Heard had reckless or in poor health motivations in writing an op-ed which by no means talked about him by title.
California, the place each Depp and Heard primarily dwell and work, has a really strong anti-SLAPP statute. As does Washington D.C., dwelling base of the paper that ran Heard’s op-ed. Virginia, then again, has an anti-SLAPP regulation which the Public Participation Mission describes as merely “sufficient,” with no provision permitting a defendant to cease the proceedings early. In recent times, Virginia lawmakers who tried to strengthen the regulation have been repeatedly unsuccessful. Due to this fact, if Depp could make even essentially the most slender justification for why the case needs to be tried in Virginia, it’s way more troublesome for Heard to get the go well with thrown out or moved to a unique venue in a state with extra aggressive anti-SLAPP legal guidelines. Because it occurs, Depp efficiently argued that Virginia is the right venue as a result of The Washington Publish maintains internet servers, in addition to a printing plant, within the state.
Depp will not be the primary individual to make the most of Virginia’s comparatively toothless anti-SLAPP statute: In 2019, then-Rep. Devin Nunes (R–Calif.) filed quite a few lawsuits in opposition to tech corporations, information organizations, and even parody Twitter accounts, in Virginia courts, regardless of not one of the defendants having direct ties to the state. Nunes had little success: In a single ruling, Choose Robert Payne of the U.S. District Court docket for the Japanese District of Virginia transferred Nunes’ lawsuit in opposition to CNN from Richmond to New York Metropolis, bemoaning that Virginia “can’t stand as a keen repository for instances which haven’t any actual nexus to this district.”
Nunes’ lawsuits, if profitable, would have been injurious to free speech and a free press. Depp’s go well with carries the identical hazard, undermining many years of Supreme Court docket precedents that maintain that it needs to be harder to show defamation in opposition to a politician or public determine in order to advertise free and open debate on issues of public curiosity. In actual fact, Heard can be allowed to argue throughout trial that she needs to be shielded from Depp’s go well with as a result of her op-ed involved a matter of public significance. However Virginia’s lack of a strong anti-SLAPP regulation signifies that future defendants with out Heard’s assets might not have that possibility.