RICHMOND, Va. (WRIC)-A feud between two formerly married movie stars, Johnny Depp and Amber Heard, is playing out in a Virginia courtroom this week. Some say it’s an example of “libel tourism” that shows how state law is coming up short when it comes to protecting free speech.
Depp is accusing Heard of defaming him in a 2018 op-ed calling for reform in which she details her own experience with sexual assault and domestic abuse without naming specific perpetrators.
The two are facing off in Fairfax County, Virginia even though both actors live in California.
Depp’s attorney has said it’s because the piece appeared in The Washington Post, which has Virginia ties.
Jennifer Nelson, senior staff attorney with the Reporters Committee for Freedom of the Press, has another theory.
“There is a reason he filed it in Virginia and not in California and that is because Virginia’s anti-SLAPP law is weaker,” Nelson said. “This has been a case that has dragged on for years and has taken up a significant amount of judicial resources.”
SLAPP stands for “Strategic Lawsuit Against Public Participation.” Nelson said anti-SLAPP laws are designed to deter powerful people and corporations from using expensive lawsuits and lengthy trials to suppress opposition.
Senator Scott Surovell (D-Fairfax) said lawyers are seeking out states with lower safeguards in place and loose connections to a case to justify filing suit there. He said Depp vs. Heard is just the latest high-profile First Amendment fight to land in Virginia.
Surovell said, in states with stronger protections, meritless cases are dismissed in the early stages and a plaintiff can be forced to cover the defendant’s attorney’s fees. That’s not the case in Virginia, according to Surovell.
“Not addressing it chills free speech. It makes people think twice about saying things about people or corporations that have lots of money. They can be afraid they can be spent under the table or buried in litigation,” Surovell said.
The disparity has some calling for federal standards and reform at the state level in the meantime.
A bill introduced by Delegate Schuyler VanValkeburg (D-Henrico) in Virginia passed with bipartisan support in 2020 but failed to make it out of closed-door negotiations meant to iron out differences between two versions of the legislation. He said the structure of Virginia’s legal system complicated the issue and the push lost momentum when the coronavirus pandemic hit.
Surovell said he plans to revive the effort in either the 2023 or 2024 legislative session, depending on bill limits. He said the implications of change would be much further reaching than this celebrity feud.
“This is a problem that can happen to almost anyone if they choose to speak out in public about a matter that’s important to them in their community,” Surovell said.
University of Virginia Law Professor Fred Schauer pointed out that the debate surrounding anti-SLAPP laws is not the central issue when it comes to Depp vs. Heard, since both sides have deep pockets. He couldn’t comment on whether it influenced the decision to bring the case to Virginia in the first place.
“Attorney’s fees are hardly an issue for people as wealthy as the people involved in this case,” Schauer wrote in an email. “The real issue is simply that, under current First-Amendment-inspired standards, public figures can only win a libel suit if they can show with ‘convincing clarity’ that what was said about them was false and that the person who said it knew it was false when they said it, or at least had an actual suspicion that it was false. And this is really very difficult to prove.”
