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A Hollywood trial on the East Coast kicks off next week

The defamation trial between actor Johnny Depp and his actress ex-wife, Amber Heard, begins next week. The case is high-visibility, high-interest and high-stakes — but is it only that?

FAIRFAX, Va. (CN) — The trial of actress Amber Heard has been a long, arduous and unfailingly dramatic journey — and it has not yet begun.

Actor Johnny Depp sued Heard, his ex-wife, in 2019 for defamation after she wrote an op-ed describing herself as a domestic abuse survivor.

The proceedings begin Monday and could linger for the next two months in Fairfax County Circuit Court. Chief Circuit Judge Penney Azcarate will preside. It will be televised on the Court TV broadcast network, viewed by many from the comfort of their sofas and also watched by a limited number of determined spectators allowed in the courtroom. Witnesses could include actors Paul Bettany and James Franco, who are set to appear by video, among others.

Inevitably, it will all be discussed and dissected on social media. A study of contrasts, the trial will be an undeniably salacious dust-up involving serious issues of defamation, domestic violence and assault.

The allegations

Depp and Heard met on the set of The Rum Diary (2011). They married four years later, February 2015, when Heard was 28 and Depp was 51. Their marriage lasted 15 months.

By spring of 2016, Heard appeared in a California courtroom, her face bruised, to obtain a restraining order against Depp. By August of that year, the two had come to an agreement. Heard voluntarily dismissed her petition for a domestic violence restraining order and left the marriage with a $7 million settlement. The two issued a joint statement, as reported in USA Today:

“Our relationship was intensely passionate and at times volatile, but always bound by love. Neither party has lied nor made false accusations for financial gain. There was never any intent of physical or emotional harm. Amber wishes the best for Johnny in the future. Amber will be donating financial proceeds from the divorce to a charity.”

But that wasn’t the end of it.

In April of 2018, British newspaper The Sun ran an article describing Depp as a wife-beater. He sued the paper for libel, a case he eventually lost.

Then, in December 2018, Heard published an op-ed in the Washington Post.

“Two years ago,” she wrote, “I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”

She never mentioned Depp, but she pinpointed a time: “two years ago.” That would be when she was married to Depp.

Four days after the piece ran, Disney announced it was dropping Depp from his signature role in “Pirates of Caribbean.” Three months later, Depp sued his ex-wife, demanding $50 million in damages. She later filed a counterclaim requesting $100 million.

Depp maintains that he never physically abused Heard.

He filed a declaration accusing Heard of being the perpetrator, not the victim. He said she punched him, threw a can of paint thinner at him and either defecated on his bed or had someone else do so.

The actor’s lawyers, led by Benjamin Chew of Brown Rudnick, argue that Heard lied as she pursued divorce, appearing in court with an “apparently battered” face. At one point, Depp’s legal team accused Heard of lying about donating $7 million in divorce money to charities.

Heard’s lawyers, led by Elaine Charlson Bredehoft, counter that the divorce money was pledged to charities. They contend Heard was abused by Depp, whose outbursts were fueled by substance abuse. When the couple was in Australia, for example, he “ingested multiple ecstasy pills, violently and repeatedly assaulted [Heard],” according to a brief filed by Heard’s team. He threw bottles, smashed a phone against the wall, and wrote bizarre messages on the wall in blood, sometimes mixed with paint.

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He said, she said

The thing about those images — poop on the bed, messages on the wall in blood — is that they are shared on social media, talked about and talked about until they become common knowledge.

This is known as the Streisand effect, a reference to a lawsuit brought by the entertainer Barbra Streisand, who tried to remove an image of her home from the internet in 2003. The case brought unforeseen attention to the photo and, consequently, the website hosting it.

“Anyone who has been defamed and is thinking about suing always has to ask himself or herself: Am I better off or worse off if I bring this lawsuit?” said Lee Berlik, a Virginia attorney whose law firm handles defamation cases.

Already the case has lingered for three years. More and more readers have become familiar with the charges. Did Depp hit Heard? Make her fear for her life? And did she or one of her friends really poop on the bed?

“We would not know anything about it,” Berlik pointed out, “except for this lawsuit.”

For lawyers, Depp v. Heard also brings to the fore other troubling issues.

“Look, if somebody falsely reports sexual violence by an unnamed individual, that individual has every right to say that never happened, you’re hurting my reputation and I’m going to sue you over it” when the allegation all but names the alleged perpetrator, explains Paul Levy, a free speech advocate and lawyer at Public Citizen. “Given the fact that Depp wants a court or a jury to resolve this dispute, defamation law provides him with a way to do so.”

What troubles him — and what has troubled other lawyers — is that the lawsuit was filed in Virginia. Depp’s original complaint contends that the Washington Post is printed in Virginia and the paper’s online edition is created on a digital platform in the state. Soon after the case was filed, one of Heard’s attorneys argued that the case did not belong in Virginia and attempted to get it dismissed. That argument was rejected, and the case stayed put.

“[Depp] should have sued her in California, where they both are and where I assume most or all of the witnesses are located,” Levy remarked. “There is no reason this should be decided by a Virginia jury. It is this sort of libel tourism that the legislature encourages by not adopting a good anti-SLAPP law.”

Anti-SLAPP — Strategic Lawsuit Against Public Participation — laws are meant to deter frivolous or meritless lawsuits, protecting free speech so that citizens can comment on such issues as domestic violence without fear of legal action. Virginia has an anti-SLAPP law, but attorneys complain it isn’t strong enough to get a case dismissed at the onset, before things get expensive.

This can have a chilling impact on domestic violence survivors.

“It makes it almost impossible for a woman to tell her story if that risk [of lawsuit] is there and if the other side has deep pockets,” observed Bruce Johnson of the law firm Davis Wright Tremaine. “The deep-pocket issue is a significant one because a lot of times the woman can’t really afford a defense. Amber Heard is probably in a better position than many women who don’t have resources at all.”

Heard’s legal team attempted to use Virginia’s anti-SLAPP law during one of the attempts to get the case dismissed in 2019. That was unsuccessful. But the subject surfaced again during a hearing last month, and Judge Azcarate ruled Heard could use anti-SLAPP as a defense before the jury.

Depending on whether the verdict is appealed, it could be that this is the sort of case that will one day be cited by Virginia defamation lawyers. Or, it could come and go, leaving only the memory of an overlong ordeal that felt more like a nasty divorce.

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