Depp v. Heard: the role of the ACLU

June 19, 2022 • 9:30 am

I don’t want to descend into tabloid journalism here, but the case of Depp. v. Heard, which now has its own Wikipedia page, does have a few things to say about the American Civil Liberties Union (ACLU), and those things are not admirable.

We all know that that the ACLU, once a powerhouse defender of everyone’s civil rights, has gone woke, deciding that they should prioritize their activities, defending most ardently those people with a preferred ideology. Their lawyers have defended the power to censor books; the organization has secretly changed their priorities from defending free speech to defending “progressive social justice”; and, in the case of Depp. v. Heard, have apparently decided that Depp was guilty before the trial—hardly a principle of civil liberties! The organization is now almost beyond redemption.

We all know the results of the case, though I didn’t follow the trial scrupulously. It was a civil mutual defamation case, with both Heard and Depp suing the other person for defamation.  Depp claimed $50 million in damages; Heard claimed $100 million. The defamation on Heard’s part was based on an editorial in the Washington Post with her byline, but which was, by Heard’s own testimony in court, actually written by the ACLU!

Here’s the op-ed that started it all (click to read):

Here are two of the statements from the op-ed that, according to Depp’s attorneys, implicitly defamed him, likely as a form of revenge after their divorce.

“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.”

Heard, on the other hand, claimed the she was the victim of both physical and sexual abuse during the relationship, often brought on by Depp’s (admitted) drug use, and that Depp tried to humiliate and ruin her by filing the lawsuit (this was in Virginia.) She also claimed in her op-ed that she lost roles and endorsements because of her speaking out, which I believe was one of the counts of defamation proposed by Depp’s lawyers.

Here’s the summary of the verdict from Wikipedia; the criteria for defamation are pretty standard:

After closing arguments were made by both Heard’s and Depp’s legal teams, jury instructions were agreed upon. Judge Penney Azcarate instructed that the jury must find all of the following to determine that Ms. Heard was liable for defamation for each statement in question (and must find similarly regarding the statements made by Mr. Depp):

  • Ms. Heard made or published the statement;
  • the statement was about Mr. Depp;
  • the statement is false;
  • the statement has a defamatory implication about Mr. Depp;
  • the defamatory implication was designed and intended by Ms. Heard;
  • due to circumstances surrounding the publication of the statement, it conveyed a defamatory implication to someone who saw it other than Mr. Depp; and,
  • as proven by clear and convincing evidence, that Ms. Heard made the statement with actual malice (i.e., with knowledge that her allegations were false, or so recklessly as to amount to a willful disregard for the truth).

Jury deliberations began at around 3:00 p.m. on May 27. They closed deliberations for the day around 5:00 p.m., resuming on May 31, after Memorial Day weekend.  Deliberations concluded on June 1. The verdict was set to be announced at 3:00 p.m., but there were delays due to the jurors not filling out the damages section on the verdict.

Verdict

On June 1, 2022, the jury found that, for all three statements from Heard’s 2018 op-ed, Mr. Depp had proven all the elements of defamation, that they were false, defaming Depp with actual malice. The jury awarded Depp $10 million in compensatory damages and $5 million in punitive damages from Heard. The punitive damages, however, were reduced to $350,000 due to a limit imposed by Virginia state law.

In regard to Heard’s counterclaim, the jury found the second of the three contested statements that Depp’s former lawyer Adam Waldman had published in the Daily Mail to be defamatory and false, defaming Heard with actual malice.Regarding the other two contested statements, the jurors concluded that Heard’s attorneys had not proven all the elements of defamation. Heard was awarded $2 million in compensatory damages from Depp but with no punitive damages.

In the eyes of many, and even in reality, Depp won: getting $10.4 million in damages in contrast to Heard’s $2 million. In other words, he came out with a huge financial gain and she with an $8.4 million loss.

During the trial, there was a lot of second-guessing from the sidelines by both the public and the press. The public largely idolized Depp and demonized Heard for leveling her accusations of physical violence, drug use (which Depp admitted) and so on. The press, on the other hand, largely were on Heard’s side both before and after the trial, taking the stand that a woman’s claims should be believed and that finding Heard guilty would be bad for victims, who will henceforth be disbelieved.

For my part, I didn’t much care who won, and since I didn’t follow the trial minutely, though saw bits of it and read about it, I am in no position to second-guess the jury. (Heard has said she’d appeal.)  But I am in a position to criticize the ACLU for its behavior in this case.

Here are some facts I found (correct me if I’m wrong).

The first two aren’t relevant to the defamation itself, but may bear on Depp’s accusations:

  • Heard had been arrested for physical violence in a relationship before her marriage to Depp, for striking Heard’s domestic partner Tasya van Rhee in 2009. The charges were later dropped and Heard said were “misinterpreted and over-sensationalized”.
  • Depp’s lawyers itself brought up Heard’s promise to donate her $7 million divorce settlement from Depp to both the ACLU and Children’s Hospital of Los Angeles. This was never done: the ACLU apparently got $350,000, with most of that coming not from Heard but from Elon Musk (who was involved with Heard) and even some from Depp himself. Since Heard had testified in a different UK trial that she made the full donation, the Depp’s lawyers in Depp v. Heard used this to question her credibility as well as to accuse her of lying under oath. (Rolling Stone could find no tax records even for the $350,000 donation.) The Children’s Hospital got exactly nothing as far as I can ascertain.
  • On to the ACLU. They not only wrote the Post’s op-ed, but according to Rolling Stone pitched it to the paper with this statement (my emphasis):

“Wondering if we might interest you in a piece by Amber Heard (who, as you may recall, was beaten up during her brief marriage to Johnny Depp), on what the incoming Congress can to do to help protect women in similar situations.”

That is a violation of the ACLU’s defense of due process, as it accuses Depp of a crime for which he had not been convicted. At this point the ACLU was already firmly on Heard’s side.

  • While the ACLU was writing Heard’s piece for her (that itself I find unethical), they made her an “ACLU  artist ambassador” specializing in opposing domestic violence.  The ACLU denies this was a tit-for-tat arrangement in return for Heard’s promised donation, and note this on their webpage about Heard:

During the current defamation lawsuit between Johnny Depp and Amber Heard, some have claimed that the ACLU made Ms. Heard an ambassador for gender justice and wrote an op-ed on her behalf in exchange for her pledge to donate money to the ACLU. This is wrong. We do not write op-eds or offer ambassadorships in exchange for donations. Period. Becoming an ACLU Artist Ambassador is entirely voluntary; it is a favor to the ACLU, not vice versa.

In 2016, Ms. Heard pledged to donate $3.5 million over 10 years to the ACLU. Two years later, in 2018, the ACLU invited Ms. Heard to become an ambassador and to work with us on an op-ed to bring attention to the issue of sexual assault and domestic violence issues; she agreed. Through her ambassadorship, Ms. Heard supported our advocacy for gender justice issues, a cause that has long been central to our mission at least since Ruth Bader Ginsburg headed the ACLU’s Women’s Rights Project.

I find it hard to believe that the ACLU’s appointment of Heard as an ambassador against domestic violence, or her pitching and writing the WaPo article for her (she remains in that position) had nothing to do with her earlier promise to give them $3.5 million. Since the ACLU had gotten only a fraction of that money, I suspect they were partly boosting her before the trial so that she might be awarded enough damages to pay them off. And their implicit accusation that Depp was guilty, both in their pitch and in the op-ed itself are unethical actions. In fact, appointing Heard as an artist ambassador against domestic violence with a trial in the offing was a bad move.

Note too that the ACLU’s statement above does not mention that Heard’s pledge was not redeemed.

  • In 2019, an ACLU attorney stated that the ACLU planned to file an amicus brief supporting Heard in the Virginia trial. As far as I know, such a brief was never filed.
  • NBC Channel 9 News in Denver reports that the ACLU is now suing Depp for $86,000 in legal fees to recover the costs of preparing documents that Depp had requested but that the ACLU had refused.  This can’t be anything more than a cheap attempt at revenge. Here’s a tweet about it:

  • Finally, after six years, the ACLU still has a headline on its own site that says this:

With the quote:

Actress Amber Heard announced yesterday she will give the American Civil Liberties Union half of her $7 million divorce settlement to support our work fighting violence against women. The other half of the settlement will be donated to the Children’s Hospital of Los Angeles.

This badly needs updating. The pledge to the ACLU was not met, and the Children’s Hospital got nothing.

The Upshot:  Although Depp “won” the contesting defamation suits in terms of money, I don’t much care. I’m not a fan of Depp, have no feelings about Heard, and would call out the ACLU no matter who won this suit. 

But the ACLU’s behavior remains reprehensible, marking its approach ever closer to the drain. It seems very much like the organization had an “understanding” with Heard, giving her a possible amicus brief, an op-ed (written by them), and appointing her an ambassador in return for a “donation” of millions of dollars.  Their writing an op-ed that is signed solely by Heard is itself an offense that could get a student kicked out of college It is palpably dishonest; the paper should have at least mentioned that the op-ed was written by the ACLU (Heard may have contributed a few words).

The ACLU also violated its own principles by taking sides in the case before it was heard, implying before the trial in the “pitch” and the WaPo op-ed that Depp was guilty of abusing Heard. It also seems unethical for me for the ACLU, given the financial side of things, proposed to write an amicus brief for Heard. This was not  a defense of civil liberties, but defense of a private individual in a civil case.

Now another possible motivation for the ACLU’s actions in this case—beyond money—is that by taking sides against Depp, they thought they were “on the right side of history.”  That is, they were taking the side that says “blame the man in cases like this and believe the woman.” If so, that could be a “progressive social justice side” of the case. And, in fact, in cases like this it is usually the men who perpetrate the violence and the women who tell the truth about it. But that doesn’t always hold true, and there’s no strong evidence that it did in Depp v. Heard.

Will the ACLU ever get back on the rails again? I still have hope, but given the young people in charge of the organization and my own dotage, I doubt that I’d ever see such a result before I croak.

28 thoughts on “Depp v. Heard: the role of the ACLU

  1. It seems the ACLU’s new approach to civil liberties is getting them more donations. Sad to say, that may be determining their platform. From Influence Watch (https://www.influencewatch.org/non-profit/american-civil-liberties-union-aclu/):

    The ACLU is funded by small-dollar membership contributions. The ACLU substantially expanded its claimed membership and financial coffers in 2017.[116] The group claimed that its membership quadrupled from 400,000 members in 2016 to 1.6 million members in 2017. It also claims that it raised more than $83 million from member donations during that time period.

  2. I also did not follow the trial in detail, but, as I learned the role that both the Post and the ACLU played, I was surprised that Depp was not also suing them. I believe that the Post has an editorial responsibility not to print defamatory language, even in an op-ed. (Ken correct me if I am wrong.)

    1. A public figure can sue a newspaper (or anyone else that publishes defamatory statements) only if the public figure can prove by a preponderance of the evidence that the party did so with “actual malice” — viz., with knowledge that the allegations were false or with reckless disregard for the allegations’ truth or falsity.

      It is, and was designed to be, a demanding standard, to afford “breathing space” for free speech. See the two SCOTUS cases I linked to in my comment below, DrB.

      1. So Depp cannot sue the ACLU for telling the WaPo that Heard “was beaten up” by Depp unless he can prove that the ACLU knew the accusation to be false?

        1. Or that the ACLU acted with reckless disregard as to the accusations’ truth or falsity (which would be met, for example, by demonstrating that the ACLU was put on notice of evidence refuting Heard’s claims, but refused to investigate).

          This is part of the First Amendment’s “Breathing Space” doctrine. The First Amendment seeks to avoid any “chilling effect” on the discussion of matters of potential public interest.

          1. If the standard for defamation of a public figure were mere “negligence,” publishers would be chary to print anything controversial out of concern that an aggrieved party bring suit might be able to prevail by later showing that the publisher failed to factcheck the story with some arcane source.

  3. Just a minor correction: prosecutors are for criminal actions. Depp v Heard is a civil action, with Depp as plaintiff/counter-defendant, and Heard as defendant/counter-plaintiff.

  4. You wouldn’t know it from the media coverage, but there have been hours of unedited audio recordings and multiple witnesses (including law enforcement that Heard herself called) saying that Heard abused Depp physically and emotionally throughout their relationship, and they’ve all been available for several years. I assume the media has ignored this because it immediately and perpetually took Heard’s side from the very beginning, before any evidence beyond her word came to light. In one recording, Depp tells Heard that he will go to the police and court, and Heard responds that nobody will believe him. “Go ahead. Tell them ‘I, Johnny Depp, a man, was abused by a woman.'”

    Sometimes women are the abusers. We can’t ignore that for the sake of a narrative. But the ACLU will! It’s incredible to see an organization I supported for so many years turn into a venal, ideologically rotted money-printing machine.

    1. Note: if you want to see or hear any of this (including evidence she attempted to fake), you’ll need to search YouTube. The media has written so many articles to bury it that literally any search you do in your preferred search engine, no matter how it’s worded, will result in pages of MSM stories pushong Heard’s side.

    1. Curtis v. Butts reminds me of a question I’ve been wanting to ask: what’s the funniest name of a federal case? I’m thinking something like a Sachs v. Butts.

      I enjoy highbrow and lowbrow humor equally 🙂 A well-placed fart is just as funny as an obscure throwaway reference to the Dreyfus Affair (Archer is a brilliant show if you’ve never watched it: https://m.youtube.com/watch?v=kAAqD4KnV30 ). Monty Python understood this.

      1. That reminds me of the wedding notices that feature a funny juxtaposition of names. Butts-McCracken, and Wang-Holder are two that came up in a quick search. If memory serves, and it often doesn’t these days, Jay Leno regularly did these on the Tonight Show.

  5. Where are all the women’s comments? I would love to leave mine BUT you want my email. So, of course that instills fear. I watched the entire trial, made ALL my judgements from what I heard straight from ALL the horses mouths, not according to outside media or all his cheerleaders on court TV. My thoughts would be vastly different from the men’s. But shhhhhhh……we’re afraid, mustn’t upset the apple cart.

    1. I don’t misuse or publicize readers’ email addresses unless they physically threaten me, and, at any rate, you can give a fake email. Many people do. So say what you have to say.

    2. Some of us here (probably most of us) would welcome more comments from women.

      And rest assured, Evie, that our host takes measures to ensure that no commenter is put in rational fear for having made a comment here.

      1. Women are quite free to comment safely here and do on a regular basis. As for this particular trial, I agree with many comments saying they left it to the juries. Which I trust more than well-financed spin recaps about celebrities.

        1. Quite right, Su, and our fantastic and generous host even has a feminist-ish law in honour of one of his female commenters. As a Brit, thank goodness the trial was televised, as it could not have been in the U.K. I entered the trial thinking that if Heard could prove one case of DV or SA then she would win. Eventually one ignores the celebrity aspect and sees that it was just about whether one human or another was credible: what evidence did they have? And I ended up thinking that Depp was lucky to get out of that relationship alive. Heard is a desperately ill woman. A cross between Pinocchio, Double Indemnity Barbara Stanwyck and Carolyn Bryant, Emmett Till’s nemesis. She is proof that ‘Believe all women’ belongs in therapists’ guidelines, but not in law courts, the public conversation, nor in the voluntary and masochistic suspension of one’s critical faculties.

          1. Now-retired Chief Justice of the Canadian Supreme Court Beverly McLachlin had to let the Me-Too’ers down easily when she said that “Believe the victim” was a recipe for miscarriage of justice if carried to the point where the defendant in a rape trial is denied presumption of innocence until the Crown can prove guilt beyond a reasonable doubt. By which she really meant, Don’t even breathe that phrase in any Courtroom in Canada!

    3. Although one dissenting opinion is hardly of any importance, I can state that I paid relatively little attention to the circus, nor do I care about mostly worthless and grotesquely-overcompensated celebrities (whether actors or athletes), but I am proof that there exists at least one man who finds the prevailing narrative “problematic” indeed. The case was, without question, more complicated than many would like to believe.

    4. By all means state your opinion about the ACLU’s subterfuge in writing an opinion piece under Heard’s name.

  6. Re: “ghostwriting”: it’s an open secret that there are two sets of rules, one for the rich and one for the rest. The rich do not actually need to be competent at anything, but can just hire someone to do the actual work. Occasionally, they had competence or “merit” in one way (e.g. acting), and everything else, being author, entrepeneur, designer and so on is not their actual work. This common deception creates the illusion that rich people deserve their status, when in actuality, they are at least averagely incompetent, ugly and lazy. When everyone else is doing it, it’s stealing credit, cheating and so on, and at least frowned upon.

  7. I find the Depp vs Heard (or vice versa) case(s?) very confusing, I cannot make an opinion for myself, so I just try to ignore it,
    ACLU has been destroyed from ‘within’, as Sarah Haidar and Ryan Grimm (see an earlier WEIT post) pointed out. I would not give credence to anything emanating from ACLU now. It used to be a great organisation, but now it is just a handmaiden to the ‘Woke’. sic transit gloria mundi

  8. I watched the case closely, Jerry. I think you have the amounts which the ACLU and CHLA received on behalf of Amber Heard wrong. As far as I recall, Depp paid her first $100,000 installments to both bodies: then AH paid $350,000 to both. Then Elon Musk paid $500,000 to both on her behalf. That, as far as I recall is it. Heard never signed the donation document (presumably legally-binding) which the ACLU sent her, although she had pledged the $3.5 million.

    A further motive for the ACLU to have the op-ed published was that ‘Aquaman’, in which Heard starred, was due for release 2 days after the article came out: it looked like a big publicity drive. As far as I recall, the witness for the ACLU, Terence Dougherty, in his testimony observed that WaPo and some staffers in the ACLU were dismayed that other newspaper outlets such as USA Today immediately spotted that the article was about Depp and referred to that. Given the hullabaloo after the publication, some felt thay had lost out on a proper scoop. The drafting process largely discussed the form in which Depp should be referenced. No doubt those internal discussions addressed the extent to which the organization thought Depp was guilty or not: and what form of words to use.

    The ACLU’s role in the affair was so shameful that Dougherty’s recorded testimony came in the case for the plaintiff, Depp, and not in Heard’s list of witnesses.

  9. I read some summaries of the daily trial coverage, which makes me mostly ignorant of the details.
    The main impression I came away with was that Hollywood folk are very damaged people. I will keep that in mind next time one of them uses their fame to offer unsolicited political or lifestyle advice.

    ACLU is unlikely to recover their legitimacy short of a very thorough housecleaning.

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