By Stacey Rose Harris
Judge Bruce White of the Fairfax Circuit Court has ruled that three out of the four statements on which movie star Johnny Depp has sued his ex-wife, Amber Heard, are actionable, and can go forward to trial.
Although neither party lives in Virginia, because the Washington Post’s servers are here, and the article was published in the online version of the paper, the Court previously ruled that it has jurisdiction over the case.
Depp’s suit arises out of Heard’s 2018 op-ed in the Washington Post, to some degree re-caps prior statements that she made about being a survivor of domestic abuse. Judge White’s opinion reaffirms the viability of a claim of defamation by implication in Virginia, that is, when the defamatory statements are not explicit on their face, but their derogatory meaning can be fairly inferred.
While the article does not explicitly accuse Depp of abuse, the three defamatory statements in it that survived dismissal were:
- “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.”
In none of these statements—nor in the article itself—is Depp referenced by name. Nevertheless, under the leading Supreme Court of Virginia case of Pendleton v. Newsome, 290 Va. 192 (2015), Judge White ruled that the statements could reasonably be construed by a jury to clearly implicate that Depp sexually abused Heard.
In Pendleton, the Supreme Court of Virginia made clear its approval of claims for defamation by implication. In that case, a child died at school after suffering a fatal peanut allergy reaction. The plaintiff was the child’s mother, who had unsuccessfully asked the school to keep an Epi-Pen on hand for her child. After the child’s death, the school issued a public statement that stated that it is “a parent’s responsibility to provide the school with accurate, timely information; a health emergency plan…and the medicine necessary to execute the plan․ If any one of these items is missing, the doctor’s orders cannot be carried out. The school…relies on parents to follow through.” The Court held that statement can fairly be interpreted to imply that the child’s mother failed to properly equip the school to deal with such an emergency, and accordingly the case could proceed to trial.
Thus, relying on Pendleton, Judge White held that the facts, as pleaded, “would reasonably cause the three statements above to convey the alleged defamatory meaning that Mr. Depp abused Ms. Heard.”
One statement upon which Depp sued did not survive, and that is Heard’s statement that she had to change her phone number weekly to evade death threats, and that she “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.” This statement, the court held, was too subjective and opinion-based to be actionable.
In the same opinion, the court also rejected Heard’s statute of limitations defense. She claimed that article only re-iterated statements made in 2016. The court did not agree, finding that re-publication triggered the running of a new statute.