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Depp Trial Exposes Risks to Media in Airing #MeToo Accusations

Hours after a Virginia jury awarded the actor Johnny Depp more than $10 million in his defamation lawsuit against Amber Heard, his former wife, The Washington Post appended a lengthy editor’s note to the essay where the sordid dispute began.

It stated matter of factly that Mr. Depp had successfully sued Ms. Heard over the essay, which was published under her byline in the newspaper’s opinion section in December 2018. The note then carefully detailed how three claims that Ms. Heard made had resulted in a jury finding her liable.

Mr. Depp is hardly the first powerful man accused of sexual abuse who has turned the tables on his accuser by filing a multimillion-dollar defamation suit. But he is one of the most prominent so far to win, and to demonstrate that defamation law can be a powerful tool if a jury decides there are legitimate reasons to doubt a woman’s story.

The result of the case — a rare outcome for a celebrity because American law requires public figures like Mr. Depp to clear an extremely high legal bar in proving defamation — highlighted the fraught decisions women face when coming forward with abuse claims.

Mr. Depp’s argument was that the case had nothing to do with the First Amendment’s broad protections for speech. Instead, he insisted, it was about the credibility of the accuser. “The First Amendment doesn’t protect lies that hurt and defame people,” Mr. Depp’s lawyer told the jury as the trial came to a close.

Several lawyers said they were surprised by the outcome, especially because Mr. Depp lost a similar case in Britain, which has much lower legal standards for public figures who sue for defamation. A key difference, said George Freeman, executive director of the Media Law Resource Center and a former lawyer for The New York Times, was that a judge decided the matter in Britain whereas a jury sided with Mr. Depp in the United States.

“A jury decides what a jury decides, and there’s often no further explanation,” Mr. Freeman said.

The outcome was all the more curious, Mr. Freeman added, because the jury also sided with Ms. Heard on one count in which she claimed that Mr. Depp’s lawyer had defamed her by blaming her for damaging the couple’s penthouse.

“When one side is false, then the other is true,” Mr. Freeman said. “It seems kind of inconsistent to give awards to both.”

One implication of the split jury decision is that the law, because of its complexities, may not do what people expect it to do: be an arbiter for the kinds of he said/she said disputes that arise from allegations like sexual assault.

In other similar defamation cases, the publisher has also been part of the lawsuit. First Amendment experts who are concerned about the use of defamation suits in an increasingly polarized climate — especially against news organizations — said the fact that The Post was not named as a party in Mr. Depp’s case probably made his victory easier.

Had The Post been sued, the trial would probably have been more focused on the ways defamation laws can be abused, said RonNell Andersen Jones, a law professor at the University of Utah.

“The newspaper isn’t a party to the suit, and so doesn’t get to frame for the jury the serious threat to public discourse that can result if defamation suits are too easily threatened or won,” Ms. Andersen Jones said. “But it still has to live with the outcome of a case, in ways that may impact its ability to participate in that discourse.”

A spokeswoman for The Post declined to comment on its appended editor’s note. But as Ms. Heard plans to appeal, her essay will remain on the newspaper’s website, an indication that Post editors believe there is no legal reason to remove it.

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