What was really at stake in the Depp-Heard trial

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Jun 03, 2022 View in browser   By Katelyn Fossett POLITICO Illustration/Getty Images Hello, readers. Hope you're doing well! Summer is here. I'm going kayaking this weekend with friends. Let me know what you think of this newsletter by emailing kfossett@politico.com, and follow me on Twitter. On Wednesday, jurors delivered a verdict in the defamation case that actor Johnny Depp filed against ex-wife Amber Heard. The seven-person jury sided with Depp, awarding him $10 million in compensatory damages and $5 million in punitive damages, while also awarding Heard $2 million for one instance of defamation by Depp against her. At its outset, most people couldn't have understood how the trial would grow into a significant cultural moment, swallowing social media feeds and launching countless accounts dedicated to trashing Heard and celebrating Depp. It also has now become the latest event by which we measure the progress of #MeToo. Some recent takes have argued that the verdict is a lethal blow to the movement. On the other hand, some argue that not every individual case dealing with gendered abuse presents an existential threat to a broad, popular social movement. But it's now very difficult to argue that the trial, which unleashed the kind of misogyny we previously saw during such moments as Gamergate, is inconsequential — particularly for anyone hoping to understand the current state of backlash to #MeToo. I called Mary Anne Franks, a law professor at the University of Miami who focuses on the First Amendment and technology, who made a case not just that the trial is a big deal, but that ignoring it actually made all of the misogyny it unleashed even worse. "I've just seen so many people bragging about how they weren't paying attention to it, as if that was some kind of badge of honor," she said. "But the issues are pretty serious." (This interview has been condensed and edited for clarity.) Katelyn Fossett: This trial was about defamation, but so much of it revolved around allegations of domestic abuse. I want to ask first: What did the verdict actually establish? Mary Anne Franks: The trial focused so much on the details of their relationship, whereas the legal issue was really quite simple in some ways, and it surprised a lot of legal scholars that this case even made it past the motion to dismiss because on its face it seemed like a frivolous case. The reason why I say frivolous is because Depp was suing her not over allegations she made for her restraining order or any statements she made to the press around the time of their separation or their divorce; he sued for something that she wrote years after they had divorced where she doesn't name him and speaks in the most in general terms about something that is objectively true. And when I say that's objectively true, this isn't a taking-sides thing. She says, "I became a public figure representing domestic abuse, and I felt the full force of our culture's wrath for women who speak out." And the fact that she hasn't named him doesn't mean necessarily that's a nonstarter. But it should be pretty difficult to sue over something when you haven't even been named in it. So it was really surprising to see that it went anywhere at all, especially given the fact that, yes, we've seen these facts at issue before in the UK case [ which took place in 2020 when Depp sued a tabloid for calling him a "wife-beater"], where it's actually a lot easier for a plaintiff who's trying to sue for defamation to win. And Depp didn't win in that case. He lost really resoundingly because the court there said, "Look, she's alleging these 14 incidents and 12 of them absolutely happened." And then in the U.S. Court system where we're supposed to be very skeptical about defamation plaintiffs, he manages to win. It doesn't make any sense at all. Fossett: There has been a fair amount of coverage about what this means for women and #MeToo. But what does it mean for media outlets and journalists? Franks: There are at least two really important and troubling lessons of this case. One has to do with the caricatures and mockery of domestic violence and all the really serious and pernicious misinformation about violence that was produced in the trial and reporting on the trial. But then there's this related but also standalone question about freedom of expression and not just for individuals, but for everyone. There are people who say, "Defamation isn't protected by the First Amendment," which is technically true but also completely wrong in the sense that some of the most important First Amendment cases involve defamation suits against newspapers. New York Times v. Sullivan was the landmark one. That case involved a newspaper, The New York Times, publishing an ad that actually contained real inaccuracies — objectively false statements — about an unnamed person. The New York Times was sued over this and was told to pay all these damages. And the Supreme Court reversed that verdict and said, "Look, we know that this is false, but we also think that it's important for newspapers to be able to publish on matters in the public interest, especially if they involve public officials. And so even though there was actual false information here, we think the bar should be set really high so that we don't challenge freedom of expression, particularly for newspapers." And a case like this really calls that into question, because Depp could have sued The Washington Post over this. I think the reason why he didn't is because he knows that it probably wouldn't have played out [as it did], and he made it pretty clear that he wanted to destroy [Heard's] life. So suing The Washington Post, I think, wouldn't have had that same kind of impact. But if you think about the precedent here — and I hope it's not going to be the precedent; I hope this gets overturned on appeal — if this does establish a precedent, you can be sued for an article that doesn't name a person and speaks about them in the most general terms and it's an issue that relates to public interest or the public concern. That's something that every media outlet needs to worry about. Fossett: It seems that Depp had a legal strategy that could be replicated by people who want to fight back against these kinds of allegations themselves. Can you talk a little bit about what his legal team did, apparently to help his chances in court? Franks: The jurisdiction here matters a lot because some states have very protective anti-SLAPP laws. Exactly for the concerns that defamation cases raise, there are several states that have actually created by statute these principles that will say you can fight a lawsuit preemptively if it seems like it's designed to suppress discourse on an issue of public interest. It's basically a First Amendment-protective idea. California, which would have been the natural place for them to have brought the suit because they're both residents there, has quite robust anti-SLAPP laws. And that's why he didn't want to fight it there, because he would have lost. So he makes the argument that he should be able to sue in Virginia, [which is where The Washington Post is printed and which also has a much broader version of defamation laws than other states]. It's a very tenuous jurisdictional hook. And the fact that that was allowed I think was the first sign that this was not going to be a case that actually makes sense on the law. So that's a big one; that was very smart and also very sinister. And then a series of decisions that were made, mostly by the judge. For instance, when Heard's attorney said, "We shouldn't have cameras there." And the judge says, "No, I'm not going to grant that order." That was a terrible, terrible thing to do for justice. Forget about who you believe on this. The idea that you were going to let this thing become the media circus that it was destined to become and to hurt the discourse around domestic violence this much. And not sequestering the jury. They sent them home every night and said, "Oh, by the way, don't look at anything." When they're living in a world that is saturated with social media and that people are passively receiving their news and their analysis from social media, that is going to infect the atmosphere. Fossett: I'm struck by how social media seems to be such a retrograde force in some of these moments — it's often thought of as a progressive force, or used to be. Franks: I think there was a vacuum, too, because the mainstream media wasn't really following the case; it was being shunted off as a celebrity sideshow. I've just seen so many people bragging about how they weren't paying attention to it, as if that was some kind of badge of honor. But the issues are pretty serious. And it's not just two celebrities who didn't like each other. Using a defamation lawsuit to continue your coercive, controlling behavior, that's actually a really big deal. Mainstream media sat it out for a long period of time or didn't say anything to actually correct the misperceptions that were being flung out there about the details of the case. We weren't really talking nearly enough about the UK case, putting all of this into context, or the chronology of how all of these things happened. And so what you got instead was just social media, which is not based on anything other than people's worst impulses. And yes, social media can be incredibly regressive, especially when you've got people who really want to have a reason to hate women. Fossett: What is your take on how this affects #MeToo more broadly? Franks: In terms of actual accountability, #MeToo hasn't really made much progress. When we look at the people who have had serious accusations made against them — one of the ones is a Supreme Court justice — most of the accused men in Hollywood have gotten their jobs back, or people are doing their comeback tours like nothing really happened. There have been very few cases where there's been any actual accountability for people's actions. This verdict is kind of revealing of just how difficult it is to do anything more than have a moment where women are a little bit more visible. But there is something to be said for exposing the hollowness of that moment. One thing that is going to emerge, I think, from this trial is that women's speech is free speech. If you have ever been one of those civil libertarians who have said, "Oh, we've got to defend neo-Nazis and all this controversial stuff," now you're not going to stand up for a woman who talked generally about domestic abuse? And you're not going to see how that's not exposing the hypocrisy of the First Amendment and the hypocrisy of most people's free speech commitments? It is a free speech issue. This is exactly what it is. And I think that's going to be harder and harder for people to ignore or dismiss. The whole #MeToo movement should be reframed as a women's free speech movement.   Sponsored by Business Leader members of Women Rule: The Exchange: As inflation rates soar and disruptions to the global supply chain persist, all eyes are on the nation's economic recovery. But getting back on track in an inclusive and sustainable way is no easy feat. POLITICO Focus connected with members of Women Rule: The Exchange to learn about the strategies and solutions that will power an economy that benefits all. Join the Conversation.   POLITICO Special Report AP Photo/John Raoux "In Florida, There's a Growing Gap Between What People Say About Abortion and What They Do," by Kathy Gilsinan and Arek Sarkissian: "The clinic is neither conspicuous nor subtle — it's just another storefront in a strip mall on a busy street in South Florida, next to a Dominican hair-design place and near a Western Union advertising remittances to Cuba. ... The administrator, a woman who gave her name only as Rosita, said the clinic performs anywhere between five and 20 abortions per day. Last year, according to figures from Florida's Agency for Health Care Administration, this added up to 2,285 abortions. "By Rosita's estimation, A Hialeah Woman's Care Center could be the busiest abortion clinic in Miami-Dade County, which as Florida's most populous county has by far the highest number of abortions in the state, which in turn has the nation's third-highest abortion rate among states, according to the CDC's most recent figures from 2019, behind only New York and Illinois. With close to 19 abortions per 1,000 women ages 15 to 44 that year, Florida's rate is nearly twice the national average of around 11. Which is odd, because its government is altogether dominated by Republicans. "In Hialeah, the mayor's a Republican, the state senator is a Republican, and the state rep is a Republican; the city went for Donald Trump in 2016 and he improved his margins there in 2020; and the city's largely Republican and largely Cuban population has been no small factor in Florida's shift from crucial swing state to predictably red. Yet this is also a majority Hispanic and largely Catholic city with five licensed abortion clinics out of 14 in the county, one of them a short walk under the Palmetto Expressway overpass from a shop called the 2nd Amendment Gun Store. It is not a city where people's lives conform neatly to the dominant politics. … "If places like this are at the front lines of a battle over abortion in Florida — where a law banning most abortions after 15 weeks is set to go into effect July 1 (depending on litigation), where some lawmakers are pushing for a full ban, and where thousands of people recently demonstrated in support of abortion access in Miami-Dade alone — that day in Hialeah there was no real evidence of the conflict sweeping the state and the nation. No protesters in the cramped parking lot, no political slogans on the T-shirts inside. Just a bunch of women, looking bored or sad or grim or resigned, who had come there with family members or friends or the occasional male companion, or alone, politics seemingly the least of the weight on their minds." "What Alito Gets Wrong About the History of Abortion in America," by Leslie Reagan in Politico Magazine: "If it were possible to eavesdrop on conversations among women and some doctors in early America, you might overhear the phrase 'bringing on the menses.' If a woman didn't menstruate when expected, she was considered to be sick and action was required to bring her back to health. Women who had 'a common cold' — a euphemism for 'obstructed' menses — used a variety of methods, teas and concoctions to bring 'their menses back.'"In other words, returning menstruation to its normal cycle was within the purview of a woman's own self-health care and was not regulated by the state until after 'quickening' — the moment during a pregnancy when a woman could feel a fetus kick and recognized a life 'stirring' within her. Quickening occurred between the fourth and sixth month of pregnancy. Only after quickening was an induced miscarriage, an abortion, considered immoral and banned by law."The truth is that abortion is deeply rooted in our nation's history — in practice, in morality and in law. Abortion was not always a crime — although Justice Samuel Alito speciously claims otherwise in his recently disclosed draft majority opinion that would overturn Roe v. Wade. "'An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973,' Alito asserts in the draft opinion." Number of the Week Read more here. MUST READS AP Photo/Jose Luis Magana, File "What Sheryl Sandberg's 'Lean In' Has Meant to Women," by Emma Goldberg for The New York Times: "When Amy Bailey, a communications strategist, read 'Lean In' by Sheryl Sandberg, the year was 2013. The #MeToo movement hadn't yet ballooned, spotlighting the abuses women can face in the workplace. The term #girlboss wasn't trending. And the question of how Facebook might affect democracy was not front and center.'It gave me this boost of courage,' said Ms. Bailey, 46, who lives in Green Bay, Wis., referring to Ms. Sandberg's book. 'It struck this feminist chord in me — if you just push harder, if you just ask for more, someone will take notice.'"Nearly a decade later, Ms. Bailey said she had been denied raises, pumped milk in the smoking lounge of her office and cut back on her professional ambitions, recognizing the challenge of balancing her work with motherhood. She has also soured on the Lean In philosophy that taught her that a little grit was all she needed for career success."'It's just not true,' she said. 'No one has ever tapped me on the shoulder because I did more and was more prepared.'"On Wednesday, Ms. Sandberg announced that she was leaving her position as chief operating officer of Facebook's parent company, Meta — the perch that made her one of the highest-profile women in American business. She had been in the job for five years when she published 'Lean In,' and her singular role and success in Silicon Valley helped amplify the book's message. "For many women 'Lean In' has been a bible, a road map to corporate life. Many others have come to understand its limits, or to view it as a symbol of what is wrong with applying individual-focused solutions to the systemic issues holding back women in the workplace, especially women of color and low-income women. And Ms. Sandberg's departure, for all those readers, is a moment to reflect on how 'Lean In' shaped their careers."   Sponsored by Business Leader members of Women Rule: The Exchange: In the Round: A conversation with today's leaders.   Transitions Laura Barrón-López is joining PBS NewsHour as White House correspondent. She currently is a White House reporter at POLITICO and is a CNN political analyst, which she will continue in her new role. … Heidi Blake is joining The New Yorker as a contributing writer. She currently is an investigative journalist at BuzzFeed. (h/t Playbook) … Becky Farmer and Nicole Schwegman recently joined the National Security Council as directors for strategic communications and assistant press secretaries. Farmer is detailed from the State Department, where she is a career member of the Foreign Service. She worked most recently in the Office of Iranian Affairs. Schwegman is detailed from DoD, where she has worked for 18 years, most recently as the force public affairs officer for the commander of Naval Surface Forces of the U.S. Pacific Fleet. (h/t Playbook) … Libby Marking is now the director of government affairs and public policy at the National Wildlife Refuge Association. She most recently was the senior manager for government affairs at the National Audubon Society. (h/t Playbook)   Sponsored by Business Leader members of Women Rule: The Exchange: As inflation rates soar and disruptions to the global supply chain persist, all eyes are on the nation's economic recovery. But getting back on track in an inclusive and sustainable way is no easy feat. Today, women are still finding themselves disproportionately affected by pervasive inequities when it comes to leadership, wages, and skills-building. Bridging these profound gender 'gaps' will be paramount to the country's ability to achieve sustained growth for the future. But where do we start? POLITICO Focus sat down with members of Women Rule: The Exchange to answer this very question. Click here to see what leaders had to say about the strategies and solutions that will power an economy that benefits all.     Follow us on Twitter Katelyn Fossett @KatelynFossett   Follow us

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