Three old-school institutions helped make the internet firestorm around the Depp-Heard trial

There’s a theory of awful internet behavior that goes like this: Sometimes social media is great for helping people connect, bringing new voices into the public sphere and exposing injustices of what we used to call “in real life.” But sometimes the internet takes existing social forces and amplifies them to the point of creating a feedback loop that detaches its participants from reality, making IRL more unreal by the day.

Johnny Depp’s successful defamation lawsuit against ex-wife Amber Heard, who accused Depp of abusing her, has become one of those moments. In recent weeks, many feminist observers have become dismayed as the trial served as a platform for an exceptionally vicious online hatefest against Heard, whom Depp also accused of abusing him, which some have taken as signs of a backlash against the #MeToo movement.

The trial marked the culmination of several digital trends: toxic online celebrity fandoms, which have often harshly attacked women in particular; a culture of paranoid, open-sourced investigations on platforms such as TikTok; monetization features on platforms such as YouTube that make it profitable to become a crowd-pleasing talking head, except where “posting from a pro-Amber or even a neutral position means you will lose followers,” as NBC News tech and culture reporter Kat Tenbarge observed. “As a result, Amber’s evidence has been largely ignored.” Some have argued that the fact that the jury wasn’t sequestered may have left them exposed to the ubiquitous online commentary at home, possibly improperly influencing their findings against Heard.

But what’s curious about the Depp-Heard trial as an internet story was the presence of several unmistakably old-school institutions at the very center of the saga, each of which had its own strong influence on the chaos to come.

The court system, and its presumption of openness, was there almost every step of the way, setting up a battle of PR attrition that tipped in Depp’s favor

It’s hard to imagine how the Heard-Depp saga would have played out online without the U.S. court system’s presumption of openness, starting with marriage as a legal institution that has long been regulated by the government.

Depp and Heard’s falling-out was a legal story long before it became an internet obsession, beginning back with Heard’s filing for divorce and a temporary restraining order against Depp in 2016 after less than two years of marriage. The seeds for the conflict to come were planted from the beginning: Heard’s accusations of physical and emotional abuse; the Depp camp’s suggestions that Heard was lying (at one point noting that she was drawing “negative media attention”); the court records that provided an unusually public and candid peek into the chaos of a troubled celebrity couple’s private lives. After months of fighting between the pair’s camps, they reached a settlement on their divorce that, in retrospect, far from resolving the couple’s disagreements, only set the stage for the even more dramatic public struggles to come.

It was Depp who launched the next two legal forays into the justice system seeking to clear his name, first in the United Kingdom, where he lost a libel case — in a country where it’s easier to win libel cases than in America — against a tabloid that had described Depp as a “wife beater.” After weeks of well publicized testimony from both sides, a judge ruled in 2020, “I have found that the great majority of alleged assaults of Ms. Heard by Mr. Depp have been proved to the civil standard.”

In that case, past was prologue: Some British observers noticed then that the social media campaigning seemed definitively tilted in Depp’s favor even though he lost the case, and they were disturbed by the implications. “It could certainly change attitudes to taking civil action over domestic abuse claims, and it has already seriously blurred the boundaries between cross-examined evidence and the crueller court of popular opinion,” the Observer newspaper wrote then.

When Depp opted for a second shot at the claims and sued Heard for defamation directly in Virginia over claims he abused her, and a judge for the Fairfax County, Va., circuit court agreed that the proceedings could be televised, it set the stage for the feeding frenzy to come.

The American Civil Liberties Union served a critical role as a behind-the-scenes media influencer that, along with the Washington Post, unwittingly set up Heard to suffer a rare loss in an American speech case

At the heart of Depp’s lawsuit in Virginia was a 2018 Washington Post op-ed under Heard’s byline, titled “I spoke up against sexual violence — and faced our culture’s wrath. That has to change,” which described Heard as “a public figure representing domestic abuse” who “had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”

“Imagine a powerful man as a ship, like the Titanic,” the piece said. “That ship is a huge enterprise. When it strikes an iceberg, there are a lot of people on board desperate to patch up holes — not because they believe in or even care about the ship, but because their own fates depend on the enterprise.”

Depp argued that the Washington Post piece was clearly about him and therefore made defamatory claims about him being an abuser. But far from being a carelessly written personal piece dashed off in the heat of the moment, it was actually ghostwritten by a staffer from the American Civil Liberties Union, in consultation with multiple ACLU attorneys, with input from Heard’s own legal and public relations teams. Heard had become an “ambassador” for the ACLU, founded in 1920, after announcing that half of her $7 million divorce settlement payout from Depp should go to the legal nonprofit. One of the reasons the nonprofit decided to take Heard on, according to testimony from ACLU general counsel and chief operating officer Terrence Dougherty: Heard’s large social media following.

The ACLU decided to tap that following, and Heard’s visibility from her then-upcoming “Aquaman” role, by helping her place a traditional op-ed in the highest-profile traditional media real estate it could secure, preferably a prestigious outlet like the New York Times or the Washington Post.

The ACLU staff’s perspective was “that Amber is about to receive an incredible amount of press and be in the public eye, so what better time would it be than now to put out this op-ed so that it generates significant readership about our issues?” Dougherty testified, adding, “Placing op-eds about matters such as this is the kind of thing that is the bread and butter of the ACLU.”

Dougherty testified that Heard’s attorneys had removed “references to her marriage and her divorce” with Depp, in an apparent effort to avoid breaching a nondisclosure agreement she’d signed with Depp as part of her divorce settlement, but that it was the ACLU’s understanding that Heard was referring to Depp without naming him.

Neither the ACLU nor the Washington Post was named as a defendant by Depp for their role in Heard’s piece, whose headline — cited in Depp’s lawsuit as one of the piece’s defamatory elements — apparently was written by Washington Post editors, according to Dougherty.

Depp’s victory over Heard, both in court and in online opinion, show that the old-fashioned dark arts of Hollywood power still exercise a great deal of influence over how stories play out

TikTok is new. Fandom is not. Courts are not. Celebrity legal and PR teams are not.

A potentially decisive factor in the case was the successful venue selection by Depp’s lawyers to argue the case in Virginia, which has a weaker anti-SLAPP statute than California, even though Depp and Heard both live in California, work in California and had witnesses based in California. Depp’s team won the argument that since the Washington Post (headquartered in neighboring Washington, D.C.) had printed editions and servers in the state, it was a proper venue. Anti-SLAPP statutes could have presented an opportunity for Heard to have the case more easily dismissed on free-speech grounds before reaching trial. No trial? No online feeding frenzy.

In some respects, successfully planting the case in Virginia, despite the state’s tenuous-at-best connections with both Heard and Depp, was just some regular canny lawyering. Then there was the less-regular lawyering by one of Depp’s attorneys, Adam Waldman, who got kicked off the case in October 2020 after a judge found that Waldman had leaked confidential information to the press, according to Courthouse News.

Court records show that Heard’s attorneys had filed for sanctions against Waldman, accusing him of being a “publicity hound” using the legal process to simultaneously wage an illicit digital PR war against Heard by leaking documents including audio recordings and surveillance pictures to the press and even to Twitter users without handing them over to Heard’s team. “Mr. Waldman’s continuing efforts to manipulate the press and disregard discovery obligations are wholly improper and fundamentally at odds with Ms. Heard’s rights to a fair trial and full and fair discovery,” Heard’s team wrote. Waldman did not immediately respond to The Times’ request for comment.

Waldman became central to Heard’s own counterclaim against Depp, which, in addition to saying that Waldman defamed her by calling some of her allegations a “hoax,” noted that bot-like accounts on Twitter that were smearing her also, curiously, praised Waldman. At trial, Waldman declined to answer many questions in his own testimony due to attorney-client privilege.

After the jury found that Heard defamed Depp but that Waldman, while acting as Depp’s representative, had also defamed Heard, Waldman posted a Kanye West lyric on his Instagram account: “The Truth is only what you get away with, huh?”

One of Waldman’s other recent posts was a screenshot showing that he had been permanently suspended from Twitter for violating the platform’s policies.