FAIRFAX, Va. (CN) — In Virginia, an anti-SLAPP law allows immunity from civil liability for statements about matters of public concern that would be protected under the First Amendment. But when an actress pens a muscular editorial on the impact of domestic violence, does the law cover her?
At issue is whether Amber Heard, 34, star of “Aquaman,” is entitled to use an anti-SLAPP defense in the nearly two-year-old lawsuit filed by her ex-husband, Johnny Depp, 57.
Depp charges Heard defamed him when she wrote an op-ed piece describing the backlash she faced after coming out as a survivor of domestic abuse. The article, published in The Washington Post in December 2018, never mentioned Depp by name, but the “Pirates of the Caribbean” star contends it was obviously about him. He sued Heard for $50 million in Virginia, where the Post is printed.
That lawsuit, along with other high-profile cases, prompted the Virginia General Assembly last year to consider strengthening anti-SLAPP legislation. The term SLAPP – strategic lawsuits against public participation – was coined to describe lawsuits that aim to silence or short-circuit free speech.
Existing Virginia law allows a person to be immune from civil liability “based solely on statements regarding matters of public concern that would be protected under the First Amendment to the United States Constitution.” That immunity doesn’t apply “to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.”
Depp's attorney argued that Heard is not entitled to an anti-SLAPP defense. During a hearing Friday in Fairfax County Circuit Court, Ben Chew of Brown Rudnick characterized Heard’s article as a matter of “private and not public concern.”
But Heard’s lawyer, Elaine Charlson Bredehoft of Charlson Bredehoft Cohen, countered that the editorial was written at the height of the #MeToo movement and called for public action.
In the editorial, Heard wrote: “We are in a transformative political moment …More women were elected to Congress than ever in our history, with a mandate to take women’s issues seriously. Women’s rage and determination to end sexual violence are turning into a political force. We have an opening now to bolster and build institutions protective of women.”
If that is not an issue of public concern, Bredehoft concluded, “what would be considered public concern?”
Chief Circuit Court Judge Bruce White took the matter under advisement. It is unclear when he will issue a ruling.
Heard filed a counterclaim in the case contending that Depp had defamed her and asking for $100 million in damages. Earlier this month, White pared down her case. But the judge also ruled that Depp, who has accused Heard of lying about domestic abuse, could not use Virginia’s anti-SLAPP law to claim immunity.
“Here,” White wrote, “the court finds no support for the notion that Mr. Depp’s statements are on matters of public concern.”
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