In recent years, defamation claims have become a useful weapon in the litigation communications arsenal, as more people get more defamed in more places — including on social media. Increasingly, such cases are seen as a way to fight back.

Historically, U.S. lawyers would tell you defamation cases are notoriously hard to prove, so the value of asserting such claims didn’t lie in the chance for success, but in getting what parties perceived to be the truth before a court of law . . . and by extension, into the court of public opinion.

There are a few reasons this is considered a useful tactic. First, there is the legitimacy involved in telling your story in a courtroom, legitimacy that doesn’t exist on any media platform. Indeed, media tend to take the content of lawsuits more seriously than a press release or interview — so they tend to cover such things more closely and accurately. And the public itself may see such lawsuits as indicating the original stories were false. Why else would the subject of the unflattering coverage assert themselves so forcefully in response?

Reasonable Belief

In most cases, by the way, we’re not talking about filing false claims, or lawsuits that might otherwise subject the plaintiff to sanctions. Rather, all that’s required is that the parties have a reasonable belief that they’ve been defamed and should win — even if the chances of victory are slim.

Which brings us to the Depp v. Heard case.

As most folks know, earlier this month a jury in Virginia came down mostly on actor Johnny Depp’s side in his high-profile defamation lawsuit against his ex-wife and fellow actor, Amber Heard (both pictured). The jury awarded Depp $15 million (reduced to $10.35 million through a Virginia law limiting punitive damages) and vindicated Depp’s view that Heard lied about alleged abuse during and after their brief, tumultuous marriage.

Yet, that same jury also found that Heard was defamed by one of Depp’s attorneys, who called her allegations a hoax. The jury awarded Heard $2 million.

What Gives?

Others will rightly raise the very real concerns about misogyny and the way the legal system seems to be stacked against female victims in cases like these, but let’s ask a purely legal question: What gives? For years we’ve been led to believe that defamation is hard to prove, particularly when you’re a public figure. Truth is a defense in these cases and opinions are protected. More than this, for public figures “actual malice” must be proven under the landmark 1964 U.S. Supreme Court decision in New York Times v. Sullivan.

In light of the verdict in Depp v. Heard, though, one has to wonder if, in an age of anger, public attack and shifting definitions of what’s true and what’s false, defamation cases will become a lot easier to prove.

Consider malice. Thanks to social media and the internet, many of us troll each other all the time. We cast shade and snide aspersions. We attack without need to substantiate or, God forbid, provide due process. In other words, public figure or not, we all harbor actual malice toward each other most of the time, stoked by days spent scrolling social media for stories that reinforce our preconceived notions. Thus, isn’t “actual malice” that much easier to prove?

Conspiracy Theories

And truth? In a world where online conspiracy theories and fake news have transformed all facts into opinions, has all opinion become fact — thereby gutting two other key elements of traditional defamation law? The Depp/Heard trial suggests that, for a jury, the boundaries between what’s true and what’s false have blurred to the extent that “true” is no longer an adequate defense, and the line between fact and opinion has disappeared.

One of the author’s first employers, former U.S. Senator Daniel Patrick Moynihan, once said: “Everyone is entitled to his own opinion, but not his own facts.” Today, such a sentiment seems as antiquated as Moynihan’s bipartisanship (he served in the successive cabinets or sub-cabinets of Presidents Kennedy, Johnson, Nixon and Ford). Is Times v. Sullivan to be similarly left in the past?

In that vein, perhaps we should start quoting a more modern view, which we believe comes from a sitcom character (Karen Walker on Will & Grace — although we couldn’t find it online): “I know it’s true because I really, really believe it.”

Defamation Laws

There’s a danger, of course, in reading too much into the results of a single case —particularly one with so much media attention, drama and hype. After all, the O.J. Simpson trial in the 1990s didn’t necessarily make it easier to get away with murder. Still, in the face of numerous calls for changes to our nation’s defamation laws, maybe it won’t take the Supreme Court gutting Times v. Sullivan to do the job. Maybe social-media–saturated juries will do that on their own.

And perhaps there’s a silver lining in this. Just like product-liability laws have made products safer, maybe greater exposure to defamation damages will make us all think twice before flaming our foes. Perhaps juries themselves will become a self-correcting mechanism in an age of anger. Maybe we’ll all just calm down, stop attacking one another publicly and get back to a more civil society.

Hope springs eternal . . . we just hope we don’t get sued for even writing such a thing.

Photo Credit: Matteo Chinellato/Shutterstock

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