As Depp v Heard resumes, so does the trial by social media

Last week’s intermission in the Johnny Depp–Amber Heard defamation case, which will resume on Monday, temporarily stopped a deluge of disturbing testimony and slowed the PR war between the two once-married actors, but the parallel court of public opinion has barely paused its deliberations on a case being eagerly followed around the world.

Part two of the Depp v Heard case in Fairfax, Virginia, will see Heard conclude her testimony, and then come under cross-examination by Depp’s legal team, before her attorneys call witnesses including Hollywood star Ellen Barkin, who had a relationship with Depp in the 90s, and Heard’s sister, Whitney Henriquez.

But four weeks in, the terms of the case have already have been set. And it’s not one case but two. In one, Depp is claiming defamation for a 2018 Washington Post op-ed in which Heard described herself as a survivor of domestic abuse; in the other, and perhaps more valuable to the actor, is his effort to reclaim a reputation and career that were badly damaged when Heard took out a temporary restraining order against him in 2016. She is countersuing over his claim that her allegations are a hoax.

“He was willing to have all the ugly, dark sides of him come out. The details didn’t make him look good, and the public was not necessarily aware of them, in order to clear his name about the abuse,” said Los Angeles-based entertainment lawyer Mitra Ahouraian. “That to me is powerful, because he’s trying to win the court of public opinion.”

But Heard has also made her defense more complicated than it perhaps needed to be. “She had to establish that she was a victim of domestic violence but through her testimony she has taken on a far greater burden by describing ongoing multiple episodes – not just domestic violence but sexual violence, vaginal searches, rape with a bottle,” said Dr Jill Huntley Taylor at Taylor Trial Consulting.

The standard for defamation for public figures in the US is set high – Depp must prove what was said was untrue and that Heard knew that it was untrue, or said with malice. But he could also win in the court of public opinion – in essence on social media, and with moviegoers – by losing.

“His claim may not be viable in the legal system, but he’s definitely winning in the court of public opinion,” said Ahouraian. “People are sharing clips they find endearing and not paying as much attention to things that may not make him look good, or dismissing them as a normal reaction to someone who is being an aggressor.”

But Heard has not finished her testimony, nor been placed under cross-examination.

“This case is far from over, and many pundits have spent this off-week drawing conclusions about Ms Heard’s testimony and discussing how Depp will likely lose in court,” noted Los Angeles lawyer Allison Hope Weiner. “Even if he doesn’t prevail in court, the real issue is whether the public is willing to go see his movies and the studios will reverse his cancellation.”

A study of TikTok memes and views indicates a clear bias to Depp, despite the ex-spouses both claiming to be victims of intimate partner violence, and Heard aligning her experience with the #MeToo movement.

“What’s coming out on social media, on Instagram and TikTok, is pretty abhorrent because these are serious allegations of abuse coming from both sides,” said Alex McCready, head of reputation and privacy at Vardags law. At the same time, McCready acknowledges, “the PR strategy around a case can be as important.”.

The TikTok tag #JusticeforJohnnyDepp has more than 10bn views – more than the tags #AmberHeard (8.4bn) and #JusticeforAmberHeard (37.2m). During Heard’s 4 May testimony, 587,285 people were watching the Law & Crime livestream.

But the case is complex for other reasons: Depp’s lawsuit was allowed to proceed on the doctrine of defamation only by implication – Depp was not named in the Heard ACLU-drafted article, nor did it restate any of the abuse allegations. Instead, Heard wrote that she “felt the full force of our culture’s wrath for women who speak out”.

The doctrine holds that seemingly neutral and accurate statements can still make a defamatory insinuation. The jury of 11 – with seven who will be called on to deliberate, and four alternates – will be faced with teasing that out after 27 May, when closing arguments are presented.

But they may face other challenges too. During jury selection, Deadline reported, one potential juror said that he’d texted his wife that he might be called.

“Amber is psychotic. If a man says a woman beat him, they never believe him,” came a reply. Asked by Heard’s attorneys if he could still be impartial, the man said that he could. “She tends to exaggerate.” Asked if his wife would be angry if he sided with Depp, he said: “She gets mad at me all the time.”

It sounds bizarre. But then the whole case has often felt an exercise in extreme.

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