Amber Heard’s Loss is a Blow to Free Speech Rights Everywhere
The jury’s verdict in the contentious Johnny Depp-Amber Heard case reveals that the First Amendment’s freedom of speech protections are subject to prosecutorial ramifications that have the potential to open a litany of lawsuits upon unsuspecting critics and truthtellers. More importantly, it skews decades of historical precedent surrounding free speech beginning with New York Times v Sullivan, which upheld the First Amendment right to free speech under the principle that debate on public issues should be ‘uninhibited, robust, and expansive.’ Further, the Virginia jury’s decision exposes cracks within recent conservative arguments on the First Amendment’s ‘infallibility’ typically waged by right-wing syndicates like Tucker Carlson and Ben Shapiro, who’ve used it to defend harmful conspiracies, faux science, and hate speech. With recent conservative shifts in the Supreme Court on abortion, voting rights, and soon potentially, guns, the American public should be concerned about how this case may engender the Supreme Court to [re]examine the extent of the freedom of speech.
There are a great many opinions regarding the case between Johnny Depp and Amber Heard. Social media lit up like the Fourth of July mostly in favor of Johnny Depp through memes, TikToks, and Instagram reels. But whether you were #TeamAmber or #TeamDepp, the outcome that landed in Depp’s favor illustrates grave concern for the freedom of speech protected by the First Amendment of the US Constitution. In that, when certain people speak out or make public statements on issues related to personal experience, even without naming an assailant by name, the individual can still face legal and financial repercussions.
Hypothetically, if one sufficiently surmises association with a written or public protest and can demonstrate in some way that they were financially or socially impacted by said written or public protest, the case punts the burden of proof onto the individual appealing to the First Amendment who attempted to make a statement or speak out on a matter freely. What might seem benign at the outset — as a matter of good intent, knowledge for the public good, etc. — could, in fact, be used against the individual as being defined as ‘malicious.’
The outcome of the Depp-Heard case sets a novel precedent that goes beyond typical libel examination, carving out a space for all kinds of legal trickery that enable the subversion of intent of the defendant, and misrepresentation of the act of speaking out, as if having a defamatory intention, when it inherently does not. Although it is exceedingly clear that Amber Heard never mentioned Depp by name in her Washington Post article, it remained the central source of consideration that became the framework for the jury’s final deliberations.
Consequently, it slants decades of legal precedent surrounding the First Amendment. After the Supreme Court’s landmark decision in New York Times v Sullivan, free speech rights of individuals and the press expanded immensely. Congress began debating in the 1960s how the Alien and Sedition Acts unjustly persecuted individuals speaking out against government since its inception during the Adams Administration and appealed to the Supreme Court for remedy. The Court reached its decision in 1964 by reaffirming historic affirmations of what the First Amendment was intended to protect. The Court’s majority referenced James Madison, who wrote in his Report on the Virginia Resolutions that the Alien and Sedition Acts alarmingly curtailed free speech in order to hinder unfounded criticism against public officials. He claimed the Sedition Act was unlawful “because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.” Madison, therefore, argued for expansive protections of speech, believing that people held an “absolute sovereignty” when it came to speech.
The defamatory implication that the Virginia jury found against Amber Heard fully unties all the historical precedent established in Madison’s writings and the Sullivan decision. The Sullivan case holds that the plaintiff must prove actual malice by “clear and convincing” evidence. Because Depp’s lawyers were able to politicize the backdrop of his relationship with Heard, they successfully manipulated the focal point of the case surrounding the Washington Post article, convincing the jury that Heard acted with malice throughout her relationship with Depp at the time of her Washington Post publication. Depp’s legal team seemingly weaved the Washington Post article in a blanket of Heard’s private ‘actions’ with Depp despite the Washington Post article’s waning influence.
For instance, the plaintiff’s legal team heavily relied on patriarchal tropes to paint Heard as a vicious and vindictive woman who couldn’t detach herself from Depp, thus, bringing about the archaic concept of the femme fatale. This old worldview has been pressing itself upon modern society for centuries to subdue women’s rights and independence in the world.
Yet, somehow, Heard’s Washington Post article remained a primary criterion in guiding the jury’s verdict despite Depp’s lawyers spending most of their time discussing private affairs. Of course, as of recent weeks, Amber Heard and her lawyers claimed social media influenced the jury’s decision, which is likely since it was uncovered during Heard’s interview with Savannah Guthrie on Dateline that the jurors did spend weekends home with family.
Furthermore, these extraordinary circumstances seemingly jeopardize the work of the press, truth-tellers, political commentators, and any good-willed citizen seeking to shed light on a matter, and who is willing to share their personal experiences as reflection, even when they do not make specific correlations to an alleged offender or offenders.
Ironically, the political Right has been fascinated with the First Amendment, especially as Trump and his allies embraced “free speech” rights as a means to escape criticism for espousing falsehoods and spreading harmful rhetoric since his 2016 electoral victory. However, throughout the entirety of the Depp-Heard case, right-wing social media circles sided wholeheartedly with Depp and were complicit in promulgating pro-Johnny Depp and anti-Amber Heard click-bait that coincidentally compressed into real-life celebrity fanaticism of Depp. While far-right pundits made their anti-Amber opinions known, some liberal-minded people also aligned with these viewpoints because of their affinity with Depp, which was reinforced by their bond with the actor’s on-screen charm and charisma.
However, since this case was decided, conservatives are now facing their biggest contradiction: While they celebrate Depp’s win as justice for defamed victims unfairly accused, the reality is they are celebrating a complete challenge to First Amendment protections — something they routinely accuse the Left of doing.
As women continue to struggle to find the courage to speak truth to power, barriers could soon be placed that discourage the type of civic action needed to engender a more equitable society and justice system. Beyond gender, workers across the country are unionizing in full force; whether at Amazon or Starbucks, they could soon face potential legal challenges from their employers who can use the First Amendment against them as seen in this case. Or as members of the press or watchdogs work to expose the truth about government corruption, they could also face a similar fate. From the Alien and Sedition Acts to the Palmer Raids, and to the Espionage Act, the struggle for free speech has been a centerpiece of our democracy helping to drive our nation toward progress.
It was because of the millions who marched for Civil Rights in Selma and the University of California, Berkeley, and #MeToo, that finally justice was bestowed on those who were wrongfully mistreated for shining a light on injustice. However, this light is now muddled through the prism of social media and a world drastically polarized by uninformed opinion. While most were captivated by the object of celebrity in the case between Johnny Depp and Amber Heard, we truly became aware of how our collective consciousness is unraveling into maddening darkness in American culture.
Dr. M.A. Iasilli teaches Political Science and History at St. John’s University.
