On Depp and defamation

Actor Johnny Depp is best known for playing a pirate, but for the last several weeks, the nation has sat transfixed over a trial to determine whether he acted like a pirate in his since-dissolved marriage. Last week, a jury of seven everyday Virginians found that Depp had been unlawfully defamed by his former wife, Amber Heard, in an op-ed she wrote after their divorce that obliquely suggested she was a victim of domestic abuse. Depp claimed it cost him millions in movie contracts for fear that associating with him might prompt a #MeToo scandal. The jury agreed with Depp after hearing testimony from a gallery of ex-girlfriends, Hollywood producers, makeup artists, police officers, and, eventually, the stars themselves.

The trial had it all: sexual misconduct, drugs, and salacious text messages. But the legal question was pretty simple: Did Heard publicly lie about Depp in a way that damaged his reputation?

Defamation is always a complex subject for Americans because of our robust (at least historically) commitment to the First Amendment to the U.S. Constitution. But the First Amendment protects the “freedom of speech,” which is a different and more limited concept than “free speech.” A broad-ranging, limitless right of free speech could cover all sorts of misbehavior and wrongdoing, while the freedom of speech is a term of legal art that embodies a concept familiar to the Framers of the Constitution, drawn from the English common law tradition they inherited at the time of our nation’s founding.

The freedom of speech, as understood by an Englishman in 1787, did not cover things like obscenity, which is why we can have laws regulating obscenity today without violating the First Amendment. It did not cover fighting words, incitement to violence, or yelling fire in a crowded theater. It was first and foremost protection against prior restraint on speech about politics and public affairs—the government could not bar you from discussing certain subjects.

But once a person said something, he was responsible for what he’d said. In other words, the freedom of speech retains the concepts of libel, slander, and defamation—lying about someone to malign their reputation.

The U.S. Supreme Court, in a famous case during the civil rights era, called New York Times v. Sullivan (1964), elevated the standard for defamation suits involving public officials, requiring “actual malice” on the part of the speaker, which the court defined as knowingly repeating a falsehood or saying something with reckless disregard for the truth. Practically, Sullivan made it almost impossible for a public official to bring a successful libel suit.

If a robust commitment to the freedom of speech defines us as Americans, then a robust commitment to the truth must define us as Christians. The Bible tells us that Jesus is the way, the truth, and the life (John 14:6), while the Devil is the father of lies (John 8:44). The book of Proverbs is full of admonitions to be careful with what comes out of our mouths, to ensure we speak the truth and what is right, not falsehood and deceit (e.g., Proverbs 12:17).

Indeed, our responsibility is not only to speak the truth but to do so in love (Ephesians 4:15), which is an even higher standard. As Christians, we should avoid slander and gossip, which is to say, speaking negatively about others and spreading information we do not ourselves know to be true. And we should be wise about whether and when we talk even truthful information because there are times when the loving approach is not to speak at all.

And we must always be mindful of the effect our words, even things we think are true, have on others. In this case, Ms. Heard will owe Mr. Depp several million dollars because her words had a substantial effect on his professional reputation and career opportunities.

When Raymond Donovan, who served in President Ronald Reagan’s Cabinet, was acquitted of criminal fraud charges, he famously asked, “Which office do I go to to get my reputation back?” For those who are slandered and libeled, a defamation lawsuit for monetary damages can only ever offer partial compensation and vindication—Johnny Depp’s Wikipedia page will forevermore say his ex-wife alleged he was a domestic abuser. Their legal case reminds all of us of the imperative to speak soberly and guard the truth carefully.