The Daily - What Depp v. Heard Means for #MeToo

Episode Date: June 6, 2022

This episode contains strong language and details of a sexual assault accusation.Since a jury ruled in favor of Johnny Depp in his defamation case against his ex-wife Amber Heard, there has been impassioned debate about what exactly the outcome means for the #MeToo movement.It raises the question: If people being accused of sexual assault can potentially win defamation cases in court, what does that mean for the accused — and the accusers — moving forward?Guest: Julia Jacobs, a culture reporter for The New York Times. Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: Johnny Depp’s victory against his ex-wife Amber Heard in one of the highest profile defamation cases to go to trial could inspire others accused of abuse or misconduct to try their luck with juries. For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Last week, when a jury sided with Johnny Depp over Amber Heard, it validated a legal strategy in which the accused turned the tables on their accusers. Today, my colleague Julia Jacobs on how that strategy could fundamentally change the dynamics of the MeToo era. It's Monday, June 6th.

Julia, since the verdict in the trial of Johnny Depp and Amber Heard came down last week, there has been an impassioned debate about what exactly it means. And we called several of our colleagues in the newsroom after the verdict came out and asked them, what does it mean? And you had a very clear-eyed answer. And so that's what we want to discuss with you, what you think this case and its outcome means. Well, Michael, it's important to note that this is a case with a unique set of facts and a very complicated set of facts. But what I've been told by legal experts in the wake of the verdict is that this is an important moment for a legal strategy that has emerged since the birth of the Me Too movement. Since women started coming forward and accusing men of abuse and harassment,

the accused have adopted a strategy of suing their alleged victims for defaming them, essentially accusing them of lying. And what, Julia, is the goal of that strategy? For people who've been accused of wrongdoing, the goal is to get a form of justice, a sense of redemption for themselves. It's about clearing their name and trying to establish what the truth was of this relationship or this incident in a public court of law. And so these accused perpetrators

are trying to flip the script in a way and say that they are the victims of defamation. Okay. And this is the kind of lawsuit, a defamation lawsuit, that was filed by Johnny Depp against his ex-wife, Amber Heard. Just remind us about those circumstances.

Right. So Depp sued his ex-wife, Amber Heard, for defamation. And this was over an op-ed that the Washington Post published in 2018. This was not long after the fall of Harvey Weinstein. And the op-ed basically says that her life was harmed after she went public with domestic abuse allegations. And to be clear, she does not mention Johnny Depp's name once. But she does write that two years ago,

she becomes a public figure representing domestic abuse. Those words are very critical in this case. Got it. And she said that she felt the full force of our culture's wrath for women who speak out. And so even though she doesn't say his name, it's clear she's referring to a time in 2016 when she accused him of abuse. And Depp feels like this op-ed is

clearly referring to him and everyone knows it. And the result of everyone knowing it is that he's losing work. He's losing his status as this world famous actor. So as a result, a few months after the op-ed is published, he sues. So after he files this defamation lawsuit and it gets closer and closer to trial, legal experts are telling me this is going to be an uphill battle for him to win. Why? Well, he lost a similar case in Britain, and he also sued for defamation there, but he didn't sue Amber Heard. He sued the publisher of a British tabloid, The Sun, and The Sun called him a wife beater and a headline. So I read the decision in that case.

It was 120-something pages. And the judge determined that what The Sun published was substantially true based on evidence that he said made him believe that most of Heard's accounts of abuse were true. So another reason it's an uphill battle is because defamation cases are easier to win in the UK and Depp lost in this case. So legal experts expected that his chances would be even worse in the United States. And Julia, what is the legal bar for proving defamation in the United States? So in the United States, the burden of proof is on the plaintiff,

in this case, Johnny Depp, to prove that what was said about them was untrue and the statement was made with actual malice, which means basically that the person knew they were lying, knew what they were saying was false, or they had a high degree of awareness that the statement was probably false. Hmm.

So a relatively high bar to prove that someone making an accusation like this knows that it's false, which seems like a difficult thing to establish, and therefore did it nevertheless with malice to try to hurt the person they were accusing. Right. Okay.

Well, as we know, Depp was able to meet that legal bar. The jury in this case found that Amber Heard had defamed him and owed him millions of dollars as a result. So let's go through the trial to understand how a jury might have come to the result. It did, especially given what you and the lawyers you talked to have just described as, you know, the relatively high bar for accomplishing this. Right. So to be clear, I was watching from the comfort of my office and my home, like many, were over live stream. And that was because the public fervor over this trial was so intense.

People were lining up in the middle of the night just to get seats. And honestly, my focus was on what was being said in the courtroom. So I decided to watch the live stream. All right. Good morning. At the beginning of the trial, we're in April. Good morning. For nearly 30 years, Mr. Depp built a reputation as one of the most talented actors in Hollywood. Depp's lawyers start opening arguments. A respected artist whose name was associated with success at the box office. Today, his name is associated with a lie.

A false statement uttered by his former wife, the defendant Amber Heard. And it's very clear from the beginning that they're making this argument that Amber Heard is an all out liar. They're making this argument that Amber Heard is an all-out liar. No one had ever in five decades, no one had ever accused Johnny Depp of being abusive of any kind with a woman. That she's lying about every accusation of domestic abuse. By choosing to lie about her husband for her own personal benefit, Amber Heard forever changed Mr. Depp's life and reputation. And that she's doing it as they wrote in their lawsuit because she wants to become a, quote, darling of the Me Too movement. All right, opening statements. Yes, Mr. Mr. Ratton-Borden. On the other side of the courtroom, we have Heard and her legal team making their argument. What this case is about

is about the First Amendment, about that December 18th, 2018 op-ed piece, and whether Ms. Heard's freedom of speech and the First Amendment give her the right to say the words that she said. That right, that freedom of speech, is what Amber Hurd is asking you to uphold and protect in this lawsuit. They say that what Hurd wrote in the op-ed is protected by the First Amendment. The evidence will show that Amber did suffer domestic abuse at the hands of Johnny Depp. And it took many forms. Physical, sure. But also emotional, verbal, psychological abuse.

It's all domestic abuse that she suffered at his hands. And that every word of her account of abuse is true. You'll hear evidence of crushing drug and alcohol abuse. You'll hear evidence of Depp taking more drugs than you can count. And that all the damages to Depp's career are his fault and a result of his substance abuse problems. You'll hear evidence that the same addictions that led him to abuse Amber also led to the demise of his career as an actor. Not Heard's fault. So any damages that he suffered in his career are not because of this op-ed.

And it's time to make Johnny take responsibility. To tell him, Mr. Depp, stop blaming other people for your self-created problems. To take responsibility for your own life. And it's up to you, ladies and gentlemen, to make him do that. And so their argument to the jury is, look, this is a very easy case. Look at this single piece of paper at the center of this case, this op-ed. Are these statements true? And their answer is yes. Mm-hmm. So given all of that, and with the benefit now of hindsight, what end up being the key moments in this trial?

So the center of this trial was the testimony of Johnny Depp and Amber Heard. They both testified over four days. And when they were on that stand being questioned by their own lawyers, they were giving very specific narratives of what their relationship with the other person looked like. But when they were cross-examined by the other side's lawyers, they were challenged on those accounts. They were challenged on the accounts of who they were in the relationship and what occurred during the relationship. All right, you can have a seat. All right, cross-examination. Thank you, Your Honor. Under cross-examination, Heard's lawyers confronted him with text messages and emails that they say go to show that he's the abuser.

One of the most graphic examples of that is a text message from 2013. This is at the beginning of their relationship. In this text, Mr. Depp... Depp writes to a friend, the actor Paul Bettany, actually. You text Mr. Bettany, let's burn Amber!

Three exclamationTS, RIGHT? YOU SEE THAT? NEW SPEAKER I DO SEE THAT. NEW SPEAKER LET'S BURN AMBER. NEW SPEAKER AND YOU DIDN'T STOP WHEN YOU SAID LET'S BURN AMBER. BECAUSE THE NEXT TEXT DOWN, YOU SAY LET'S DROWN HER BEFORE WE BURN HER, THREE EXCLAMATION POINTS.

DID I READ THAT RIGHT? NEW SPEAKER YES, IT'S REFERRING TO THE TEXT PRIOR TO. NEW SPEAKER YOU DIDN'T STOP AND YOU SAID LET'S DROWN HER BEFORE WE BURN HER. AFTER THAT YOU MADE ANOTHER COMMENT. AND I'D LIKE TO APOLOGIZE TO THE COURT AND TO THE JURY FOR SOME OF THE LANGUAGE THAT I'M GOING TO HAVE TO USE TODAY. BUT UNFORTUNATELY YOU'RE GOING TO SEE A LOT OF DOCUMENTS WITH LANGUAGE LIKE THIS. to use today, but unfortunately, you're going to see a lot of documents with language like this. After you said, let's drown her before we burn her, Mr. Depp, you said, I will fuck her burnt corpse afterwards to make sure she is dead. That's what you said that you would do after you burned

her and after you drowned her. Did I read that right? You certainly did, yes. And you wrote that about... It's a really violent, threatening language. It is, and the point of this cross-examination is to essentially get these messages on the record, that he said these things. Can you please bring up Defendant's Exhibit 638? So then they try to show that he wasn't only violent in his language, but prone to violent outbursts.

And they try to do that by showing a video. Motherfucker! Motherfucker! What happened? Which is secretly recorded by Heard at first. In which Johnny Depp is cursing and is slamming cabinets.

All I did was say sorry. Did something happen to you this morning? I don't think so. And at one point slams a cabinet so hard it breaks. Mm-hmm. And pours himself a massive glass of wine. And so Depp is shown this video. And that's you in the video, Mr. Depp, right? That's correct, sir.

And you would agree that you were violent in that clip, correct? And he's asked to explain what happened in it. Um, clearly I was having a bad time. Being legally recorded by your chosen other is, well, it's quite fitting with the rest of the photographs and tape recordings she made. So I thought what was most interesting is that she tried to hide it from me and then that she laughed and smiled at the end. I thought that was the most interesting part myself. But so, yes, I did assault a couple of cabins, but I did not touch Ms. Hurd. As you can see, I think. And even if this video doesn't show Depp hitting Heard,

her lawyers are arguing that it shows that he's the kind of person who is the abuser in the relationship, not the victim. Mm-hmm. Right, and clearly, what they're saying to the jury is, how can she be guilty of defaming him

when he's conducting himself in this manner in a relationship? Right. And there were friends of hers and a makeup artist who testified that they saw injuries on her, as well as photos of bruising or marks on her face, some of which she sent to her nurse at the time. All right, your next witness. Your Honor, we'd like to call Laura Amber Heard to the stand. All right, your next witness. Your Honor, we'd like to call Laura Amber Hurd to the stand. All right. And Hurd herself took the stand to talk and describe several instances of alleged abuse.

And one of the most graphic examples she gives is of an incident that she says takes place in Australia in 2015. The plan was always for me to wrap on my movie and then come and join him in Australia, where he was filming Pirates 5. The couple's there because Johnny Depp is filming the fifth Pirates of the Caribbean movie, one of his most famous franchises. So he took a handful of pills, and I didn't count how many, but I think it was either eight or ten. And she said that Depp had taken a lot of ecstasy one night. The next thing I remember is we had an interaction that I can't really describe. It didn't make a lot of sense to me.

It was just belligerent. And then launched into what she described as a belligerent assault in their rental home. I remember this time he slams me up against the wall hard. I mean, I hit my head hard. She says at one point he slams her up against the wall. I don't know how much time passed, but at some point he had a broken bottle up against my face neck area by my jawline,

and he told me he'd carve up my face. And at another point, she says he throws her across the room into a ping pong table. He gets on top of me on the games table and is just whacking me in the face, like repetitive. Then gets on top of her and is repeatedly whacking her. And at some point, I'm up against the wall and he's screaming at me. He's like at the top of his lungs screaming, I fucking hate you.

I fucking hate you. You ruined my fucking life. And screaming at the top of his lungs. And at this point there's glass everywhere because she says she threw a glass bottle on the ground and he was throwing bottles. I don't know how. I don't know what happened next. I don't know how, I don't know what happened next. I was bent over backwards and I thought he was punching me.

I thought he was... I'm sorry. He was... I felt this pressure. I felt this pressure. He held my pubic bone and he said he was punching me. And ultimately, she says she feels this pressure on her pubic bone, which she later determines was him sexually assaulting her with what she thinks was a bottle. I don't know how that ended. I don't know how I got off the countertop.

I remember there was blood on the floor. I don't know how that night ended. So the injuries she has after that involve, according to her, cuts on her forearms, cuts on the bottom of her feet, bruising across her jaw, and bleeding from her vagina. And as someone who's watched this entire trial, this was the most emotional moment for Heard on the stand. But under cross-examination, Depp's lawyers tried to undermine her account of abuse in Australia. And you testified that you bled as a result of this sexual assault, correct?

That is correct. And you testified that your forearms were cut. My forearms and my feet. And your feet were sliced up. That's correct. And you testified you had a bruise across your jaw. That is correct. And there is not a single medical record reflecting treatment for any of those injuries is there misheard? I didn't seek treatment. They draw attention to the fact that she did not seek any medical treatment despite how severe she said this assault was. Now, her lawyers try to remind the jury through their arguments, through expert testimony, that many victims of domestic abuse aren't documenting every injury and seeking treatment for them, and noting that many of these confrontations happen behind closed doors where there are no witnesses. Another key moment where Depp's lawyers are trying to push on Heard's credibility

is when they remind the jury the fact that she says she only ever hit Depp out of self-defense in order to protect herself. Mm-hmm. Can we please pull up Plaintiff's Exhibit 356? But then they play this recording of the two of them having an argument. I'm not going to be in a physical fucking altercation with you. Then don't.

You fucking hit me last night. And you can hear Depp accusing Heard of punching him. I'm sorry that I didn't hit you across the face in a proper slap, but I was hitting you. It was not punching you. Babe, you're not punched. Don't tell me what it feels like to be punched. She's quibbling over the language, saying that she hit him. She didn't punch him.

Because you start physical fights. You are such punch him. Because you start physical fights? You are such a baby! Because you start physical fights? I did start a physical fight. Yeah, you did, so I had to get the fuck out of there. Yes, you did. And very importantly, you hear her say the words, I did start a physical fight. And that's undermining the idea that she never instigated these fights, as she says.

That's you and Mr. Depp on that recording, right, Mr. Herb? That's correct. And you said you hit Mr. Depp, right? Yeah, I had to hit his body to get him out of the door. My question was, you said on that recording that you hit Mr. Depp, right? Yes, I did. And you accused him of being a baby for not wanting to be in a physical fight with you, right? Incorrect.

I accused him of being a baby for complaining about me hitting him when he was trying to get through the door I was trying to barricade. But not only are Depp and his lawyers arguing that she is a liar, they go further than that. They argue that she's the abuser in the relationship. Depp testifies that on their trip to Australia, she attacked him. I stood up and I walked behind the bar and there was a larger bottle of vodka, the kind with the handle, you know, on it. Ms. Erd was flinging insults left, right and center. And she then grabbed that bottle and threw that at me.

He testified that on that day, his finger was severed when she threw a vodka bottle at his hand and it exploded on his hand. I felt heat and I felt as if something were dripping down my hand, you know. And then I looked down and realized that the tip of my finger had been severed. Severed. And so, in the end, Depp's lawyers argue that he's the one who has records of his injuries from this confrontation, not her.

They play another recording of a conversation between Depp and Hurd. Please tell people that it was a fair fight and see what the jury and judge think. Tell the world, Johnny. Tell them Johnny Depp. I, Johnny Depp, man, I'm a victim too, Mr. McFaul. And I know it's a fair fight. It's these probably people believe or side with you. The lawyers seem to be positioning this tape as heard almost challenging Depp to tell the world that he is the victim of domestic abuse. And she's suggesting that people won't believe him because he's a man. And what did you say in response when Ms. Heard said, tell the world, Johnny, tell them Johnny Depp, I, Johnny Depp, a man, I'm a victim too of domestic violence?

I said, yes. I have nothing further, Your Honor. And this really goes to the heart of the narrative Depp's lawyers are trying to tell, that this is not your typical me-too abuse narrative. In this case, they argue, the woman is the abuser and the man is the abused. And in the end, as we now know, Depp's lawyer strategy did work because the jury found that Heard had defamed Depp when she wrote an op-ed in the Washington Post calling herself a public figure representing domestic abuse. So now the question is, beyond this trial, what does that outcome mean for both the accused and the accusers moving forward? We'll be right back. So, Julia, what does this popular approach for people accused of sexual abuse or assault. So the morning after the verdict, I talked to a lawyer. His name is Andrew Miltenberg, and he regularly represents people who are accused of sexual misconduct.

And he represents these people in defamation cases against their accusers. He said he got about a dozen emails from clients after the verdict expressing that they thought this Depp verdict would bode well for them, that it could send a positive signal for their cases. And as their lawyer, he obviously has to caution them that every case is different, that they're not Johnny Depp, they're not a massive movie star with a fan-based live tweeting in support of them and defending their every word online. And there's no legal precedent set in this Virginia case that, say, a jury in New York would have to follow. But this lawyer did acknowledge that the verdict sends a positive signal to an accused plaintiff like his clients, a signal that a jury in a case like this could be willing to side with the accused who has sued the accuser for defamation.

And the message is that this powerful legal tool that has always in theory been available to people accused of sexual misconduct, a defamation lawsuit, but was seen as difficult to pull off, now looks a lot more attractive. Right. And most civil lawsuits are settled or dismissed by a judge. This is a rare defamation lawsuit that actually makes it to trial. And the reason that so many settle is because few people in the world want embarrassing, intimate details out on display in front of the public during legal proceedings. So, you know, why not settle outside of court? But this lawyer, Andrew Miltenberg, said he can see a world in which plaintiffs feel emboldened to bring these cases into the public to try to find the redemption that Johnny Depp seems to have achieved, at least so far.

So in theory, this could mean a lot more defamation lawsuits and defamation trials could be coming. It's possible. And there are already cases like these working their way through the court system. One of the most prominent ones is actually a lawsuit filed by Marilyn Manson, the musician, who happens to be a good friend of Depp and was brought up frequently throughout the trial. And Manson sued his accuser, who said that he sexually assaulted her. And another major case we have coming, this is someone that this lawyer, Milton Berg, represents, is filed by the writer stephen elliott who was included in a crowdsourced list of men in media who had misbehaved somehow in his case he was accused of sexual assault which

he has denied and he sued the creator of that list for defamation so we've been talking about what this verdict means for the accused primarily thesearily these men who, from what you have found, are more emboldened to pursue a strategy of suing their accusers for defamation. But what does this verdict mean for those who have made the accusations of sexual assault or sexual abuse? So I talk to lawyers who consult with accusers who are considering coming forward

with their accounts of abuse, even potentially through op-eds like Amber Heard did. And the fear that I'm hearing from them is that they'll see how Depp v. Heard played out and they'll think to themselves, why should I come forward with a claim that could possibly result in me being sued, spending years defending a lawsuit

in which I spend a whole lot of money on legal fees. And then in the end, I might lose and have to pay the person I accused of misconduct a lot of money. And so this fear is particularly heightened around this case, I think, because you have a situation where they saw this as a case that was very unlikely for Johnny Depp to win for the reasons we discussed in terms of defamation law in the United States, but also because we had a case where a couples therapist testified that there was mutual abuse in this relationship. And ultimately, these lawyers thought that there was no way a jury could find unanimously that the statements at issue in this op-ed were defamatory. But they did. And we have to remember

that one of the original purposes of the Me Too movement was to create a space for women to come forward and not be fearful that their lives will be destroyed by men who are much more powerful and well-resourced than them. And I think these lawyers fear that this verdict sends a blaring message that they do have something to worry about. And as a result, it could turn back the clock on Me Too and take us back to a time when many women see far more compelling reasons to stay silent than to come forward. Well, Julia, thank you very much. We appreciate it.

Thanks for having me. We'll be right back. Here's what else you need to know today. The latest mass shootings in the U.S. left at least nine people dead and about two dozen injured in Pennsylvania, Tennessee, Virginia, Arizona, and South Carolina. There are intensive discussions underway. It includes people who have not been engaged on this issue in the past. The shootings occurred as lawmakers from both parties, including Senator Pat Toomey

of Pennsylvania, closed in on a possible deal to pass gun safety legislation. The details of the negotiations remain unclear, but are said to include expanded background checks and a federal red flag law. I can't, certainly can't guarantee any outcome, but it feels to me like we are closer than we've been since I've been in the Senate.

And the Michigan plant, whose closure helped trigger a nationwide shortage of baby formula, restarted production over the weekend, raising hopes that the shortage may soon end. The plant, run by Abbott Nutrition, was shut down in February over concerns that baby formula manufactured there was contaminated with a dangerous bacteria known to sicken and even kill young babies. Today's episode was produced by Rochelle Bonja, Eric Krupke, and Sydney Harper. It was edited by Mark George and Lisa Chow, contains original music by Dan Powell and Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.