Why Johnny Depp Is Suing Amber Heard in Virginia

Johnny Depp’s suit against Amber Heard, his ex-wife, will proceed in Virginia Courtroom on Monday April 11. It is expected that the case will involve allegations from Depp’s unhappy marriage which ended in 2017, amid abuse accusations from both of them. The suit, regardless of its outcome or details, could be a precedent for the First Amendment.

Heard published a December 2018 opinion piece in which the inspiration for this suit. The Washington Post. Heard calls herself “a public figure representing domestic abusive” in her brief article. Depp, a plaintiff in defamation proceedings filed in 2019, claimed that Heard never referred to any individual by name.[t]”He oped’s obvious implication” was that she was his abuser. Depp filed for compensation damages of $50 million, as well as punitive damages.

It is the location that makes this suit unique, not the facts. Depp sued Fairfax County Circuit Court. Depp, Heard, who each reside in California, were previously married and lived together in California. The article was published in Washington D.C. Heard stated in 2019 that “To my best knowledge I have not traveled to Virginia” in a motion.

It’s not clear at this point how Virginia is included in the equation, until one considers the weak anti-SLAPP laws of the state.

SLAPP stands to Strategic Lawsuit Against Public Participation. It is one type of defamation claim that has been filed in order to stop or intimidate speech. While these lawsuits are fairly inexpensive to file, it can prove costly to defend. A defendant with insufficient resources could end up agreeing to all the requirements of the lawsuit to cut out the trouble.

Anti-SLAPP laws aim to stop such lawsuits. Anti-SLAPP statutes are laws passed by states that allow defendants not to have to file frivolous lawsuits. They also avoid the costly and lengthy process of bringing such a case before a judge. Some allow defendants to get reimbursed by the attorney who filed the false lawsuit.

Depp has a difficult task ahead of him: Defamation against public figures must be proved by showing that speaker had “actual malice,” which can mean either lying or showing “reckless disregard” for truth. Depp could have had good intentions, but winning the case would mean that Heard must prove Heard’s reckless or unjustifiable motives for writing the op-ed.

California is home to both Depp (and Heard) and has a strong anti-SLAPP statute. Washington D.C. also has an anti-SLAPP statute. This is Washington D.C.’s homebase. Virginia has an anti-SLAPP statute that the Public Participation Project calls merely “adequate” and does not allow defendants to stop proceedings before they are completed. In the recent past, Virginia legislatures who tried to improve this law have failed repeatedly. Depp may make a very narrow argument for the case to be heard in Virginia. However, Heard will have a much harder time getting the suit dismissed or transferred to another venue in a state that has more restrictive anti-SLAPP laws. Depp successfully argued Virginia was the right venue. The Washington PostThe state also has web servers and a printing facility.

Depp is not the first person to take advantage of Virginia’s comparatively toothless anti-SLAPP statute: In 2019, then-Rep. Devin Nunes (R–Calif.) Numerous lawsuits were filed in Virginia against technology companies, news organisations, and even parody Twitter accounts. None of the defendants have direct ties with the state. Nunes was unsuccessful: Judge Robert Payne of U.S. District Court for Eastern District of Virginia transferred Nunes’ lawsuit against CNN’s Richmond location to New York City. He complained that Virginia could not be considered a repository for cases with no connection to the district.

If successful, Nunes’ lawsuits would have been detrimental to freedom of speech and free press. Depp’s lawsuit poses the same risk, as it would undermine decades-old Supreme Court precedents which hold that defamation should not be made against politicians or public figures in order to encourage free and open discussion on issues of public concern. Heard can argue that Depp should not sue her because the matter in which she wrote was of public interest. Heard may no longer be able, due to Virginia’s absence of a solid anti-SLAPP statute.