Why the Washington Post Wasn’t Named in the Johnny Depp–Amber Heard Trial

By now, anyone who cares (and many who don’t) has heard about the verdict in the defamation trial between Johnny Depp and Amber Heard. After six weeks of testimony and reams of evidence including photographs, texts, and videos documenting the former spouses’ poisonous interactions, the jury awarded Depp ten million dollars in compensatory damages and five million in punitive damages. (Conversely, Heard was awarded two million in damages for comments made by one of Depp’s lawyers.) The statements that Heard was held to be liable for included a reference to herself as “a public figure representing domestic abuse” in an op-ed published in the Washington Post, in 2018—which, as it turned out, was drafted, at least initially, by the A.C.L.U. Moreover, Heard and an A.C.L.U. representative said during the trial that the headline of the piece, as is common, was written by a member of the editorial staff of the Post, and not Heard herself. Nevertheless, whether or not she wrote any of the actual words, Heard was liable because she “made or published” them (including by tweeting a link to the piece), and because the jury found they were untrue.

Noticeably absent from the case, however, was the actual publisher that printed and distributed the statements—the Washington Post. Generally, conventional publishers are responsible for the words they publish, even if someone else writes them or if they are contained in a quote. (Internet companies have an exemption from this general standard through Section 230 of the Communications Decency Act, which insulates platforms such as Facebook and Twitter from liability for content posted by their users.) Yet Depp would have had a nearly insurmountable hurdle to overcome if he had attempted to sue the Post for the op-ed.

The reason is the “actual malice” standard established in the 1964 Supreme Court case New York Times Co. v. Sullivan. The court held that, in order to be consistent with the protections guaranteed by the First Amendment, a publisher or writer could not be held liable for false statements that are published about a government official unless the publisher or writer either knew they were false or disregarded a high probability of falsity (i.e., knew they were very probably false). The term is unfortunate, because it is neither “actual” nor “malice”; one can have tremendous animosity for a particular politician, publish something false about them, and still not have acted with this kind of “constitutional” malice. As long as the writer believed that what they were writing was true, or at least not probably false, the writer’s personal feelings toward the government official are, according to the standard, irrelevant.

The unanimous opinion of the Supreme Court in Sullivan justified the broad impact of the actual-malice rule as the price of an informed public, and therefore something essential to a functioning democracy. The press, the justices recognized, will inevitably publish false statements about government officials owing to error or simply owing to the nature of getting important news to readers quickly. If publishers faced crushing liability and legal expenses for any false statement about a government official, they would be too afraid to publish important information; the public would be deprived of a great deal of true information that would be impossible to prove to a certainty, and democracy would suffer. And, in fact, any number of subsequent public revelations about official misconduct, including Watergate, the Iran-Contra affair, and Flushgate, would have been impossible to publish until all of the elements were conclusively proven. Public pressure to determine the conclusive truth through trials or congressional investigations frequently only builds because of initial, sometimes imperfect, press reports.

In 1967, the Supreme Court extended the actual-malice standard beyond government employees to include “public figures,” recognizing that many business leaders, celebrities, and others who exercise an outsized influence in public affairs are often the subject of legitimate public interest. If a public figure wants to sue over a false statement, they, too, have to prove that the publisher knew the statements were false or probably false at the time of publication.

Of course, implicit in the actual-malice standard is the idea that, in some instances, public figures or officials may have their reputations harmed by false statements, and will not be able to successfully sue for damages. This, the court held, was part of the bargain of public service and celebrity. Public figures will rightfully be subject to tremendous scrutiny—the “uninhibited, robust, and wide-open” debate necessary to democracy, in Justice William J. Brennan’s words. They must therefore occasionally suffer some errors by a free press. Plus, public figures and government officials have access to the media and channels of communication, and can make public statements to rebut the false statements and attempt to undo the damage.

In order to maintain a lawsuit against the Post, Depp would have had to show that the editors involved knew that the statements in Heard’s op-ed were false at the time they printed it. Because Heard had obtained a widely reported restraining order against Depp in 2016, based on her allegations that Depp violently attacked her, the Post would have had no reason to doubt that she was a survivor of abuse, let alone think that her claims were false or probably false. Moreover, the Post would have a strong argument that, because the op-ed never mentioned Depp by name, they had not intended to publish anything “of and concerning” him. These obstacles to any lawsuit against the Post—proving that the newspaper’s editors who worked on the piece knew what they published was false, and further proving that they intended the false statements to refer to Depp—likely scuttled any impulse to sue the newspaper, if indeed Depp considered it, exactly as the Supreme Court decisions intended.

These protections, however, did not benefit Heard. Although Depp was required to show that Heard made the statements with actual malice, once the jury determined that the statements were false—that is, they believed Heard was lying about the abuse—the step to finding that she knew they were false when she made them was virtually automatic. Similarly, the jury clearly believed that, notwithstanding the vague language of the op-ed, Heard intended to implicate Depp—that the reference to “domestic abuse” in the op-ed was effectively a subtweet.

At least theoretically, then, the Heard decision should have little relevance for publishers, who will continue to enjoy the same protections they’ve had for over fifty years. But, as a practical matter, the trial was a graphic display of the possible consequences for individuals who make similar allegations. After this trial, sources whom journalists rely on to cover important stories of abuse may be less inclined to make allegations publicly, for fear of defamation suits from perpetrators. While false allegations are obviously not in the public interest, undoubtedly many true allegations—ones that have less evidence to corroborate them than what Heard offered in her trial—will be kept forever hidden.

More alarmingly for publishers, however, two current U.S. Supreme Court Justices, Clarence Thomas and Neil Gorsuch, in 2021 dissenting opinions, indicated a desire to overturn, or “reconsider,” Sullivan. Justice Thomas endorsed the idea that, at least as applied to public figures, the actual-malice standard bears “no relation to the text, history, or structure of the Constitution.” We know where that argument comes from, and where it goes to: a reactionary vision of society that current conservatives like to imagine was fully intended by the drafters of the Constitution. But elimination of the Sullivan standard would be catastrophic for the press and journalists in the United States. It would mean that important reporting about public figures would not see the light of day, except in those rare cases where the evidence gathered by a reporter was virtually irrefutable. The Catholic Church sex-abuse scandal? A story based on anything less than an admission of wrongdoing by church officials would potentially mean crushing liability for a publisher. A story about the misdeeds of a pharmaceutical oligarch, or a social-media titan, or the activist spouse of a judge? Any report that was not based on videotape of them in media res would be a bet-the-company gamble. The oligarchs and titans might be happy with a newfound ability to kill those stories. But I’m not sure democracy would survive.