Amber Heard said she lost the right to 'speak freely' but experts say the Johnny Depp case was 'not a free speech issue but a credibility issue'

Amber Heard said she lost the right to ‘speak freely’ but experts say the Johnny Depp case was ‘not a free speech issue but a credibility issue’

  • A Virginia jury on Wednesday found that Amber Heard and Johnny Depp were both liable for defamation.
  • While Heard decried the verdict as a First Amendment censure, legal experts disagreed.
  • “This isn’t really a free speech issue, this is really a credibility issue,” a former prosecutor said.

Amber Heard on Wednesday lamented that she lost the right to “speak freely and openly” after a Virginia jury found her liable for defamation in her ex-husband Johnny Depp’s case against her.

But legal experts told Insider that the six-week, sensationalized trial was never truly about freedom of speech and posited that the verdict is unlikely to have future implications for First Amendment law. 

“This isn’t really a free speech issue, this is really a credibility issue,” said Neama Rahmani, a former federal prosecutor and the president of West Coast Trial Lawyers. “The jurors found that she lied, and she knew she was lying.”

At the center of the case was Heard’s 2018 Washington Post op-ed article, in which she said she was a survivor of domestic and sexual violence. The piece did not name Depp, but he accused his ex-wife of ruining his reputation and career. Heard then countersued Depp, alleging he assaulted her before and during their marriage, which ended in divorce in 2016. Depp denied the claims. 

After six weeks of damning testimony, the jury on Wednesday found that Heard defamed Depp, awarding him $15 million in damages. They also found Depp liable for defamation against Heard after one of his lawyers called her sexual abuse allegations a “hoax,” and awarded her $2 million in damages. 

While the First Amendment enshrines Americans’ right to freedom of speech, the doctrine does not protect against defamatory speech — false statements that are presented as fact and do subsequent harm.

“This is not about the First Amendment,” Mitra Ahouraian, a Beverly Hills entertainment attorney, told Insider.

“You cannot lie and say statements that harm people. That is not protected speech,” she added. 

While Heard’s legal team urged the jury to consider First Amendment implications as it related to Heard’s right to publish her story in The Washington Post, Depp’s case more effectively hinged on his accusation that the story she told was full of damaging lies about him, experts said.

Depp’s legal team worked hard to poke holes in Heard’s story during cross-examination, highlighting inconsistencies in her testimony and casting doubt on her reliability in a trial tactic that proved successful.

For instance, Heard claimed to not play any role in abuse, but was contradicted by a recording played in court that showed Heard saying she “hit” Depp, according to Ahouraian. Heard testified she acted in self-defense.

Heard also said in 2018 she had donated the $7 million from her divorce settlement to charity, but testimony from the trial revealed she hadn’t actually donated the money. She said she hadn’t yet donated it because Depp sued her for $50 million, but that she still planned to.

Several experts also told Insider that Heard’s graphic descriptions of violence committed against her by Depp did not match up with the photos of her injuries presented in court.

Roy Gutterman, director of Syracuse University’s Tully Center for Free Speech and a First Amendment expert, told Insider the key factors were Heard’s and Depp’s testimonies and their “believability and credibility and ultimately, likability,” adding that “the jurors believed Johnny Depp over Amber Heard.”

Legal experts told Insider’s Ashley Collman on Wednesday that Heard lost her defamation case because she didn’t come off as credible and lacked her ex-husband’s star power. 

Celebrities face a much higher burden of proof when it comes to defamation suits. Public figures have to prove that defamatory statements about them were made with “actual malice,” meaning that the speaker knew the statements were false or acted with reckless disregard for the truth.

“If you lie about somebody and the jury thinks you’re lying, then you shouldn’t be protected in that way, and it’s not going to chill your First Amendment right to speak,” said John Culhane, a law professor at Widener University Delaware Law School.

That the jury found both Heard and Depp liable for defamation given their status as public figures only further highlights the unique nature of this particular case. The preponderance of contradictory evidence and the social media circus surrounding the trial made this case an “outlier” in comparison to other defamation trials, experts said.

“This case is so over the top in so many ways that I wonder how much impact it will have,” Culhane said.

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