When the verdict was announced for the Johnny Depp v. Amber Heard defamation case on June 1, social media reactions ranged from wondering if Depp would now be asked to reprise his “Pirates of the Caribbean” role to petitions for Heard to be replaced in “Aquaman 2.”
However, the most urgent response came from activists asking the question: What are the repercussions for the #MeToo movement?
The jury ultimately awarded Depp $10 million in compensatory damages and $5 million in punitive damages, capping the total payout at $10.35 million, after ruling Heard defamed him with a Washington Post op-ed that alleged emotional, sexual, and physical abuse, without naming Depp. The jury also determined that a statement by one of Depp’s attorneys defamed Heard and ordered the awarding of $2 million in compensatory damages to her.
A “heartbroken” Heard called the verdict a “setback” for women everywhere, saying in a press statement that “it sets back the clock to a time when a woman who spoke up and spoke out could be publicly shamed and humiliated. It sets back the idea that violence against women is to be taken seriously.”
IndieWire spoke with leading #MeToo attorney Lee Feldman about the future of #MeToo legal cases. The founding partner of Feldman Browne, APC, the Los Angeles-based lawyer served on the panel counsel for the Women in Film Legal Defense Fund and the #TimesUp Legal Defense Fund, and recovered more than $125 million in Hollywood #MeToo cases on behalf of victims of sexual assault and harassment, gender bias, and pay discrimination.
Below, Feldman addresses what the Depp v. Heard verdict means for other high-profile defamation cases between exes, including Marilyn Manson’s pending lawsuit against Evan Rachel Wood.
This interview has been edited for clarity and length.
IndieWire: What was your take on the Depp v. Heard verdict?
Lee Feldman: I’m not surprised by the verdict, given the reaction to the proceedings on Twitter and social media. Regarding the jury initially forgetting to include a dollar amount in damages, that was bizarre. That almost never happens. I mean, that’s the whole point [of a defamation case].
The jury seems to have had the same opinion as the legions of Johnny Depp fans on social media. So the verdict doesn’t surprise me. It concerns me greatly.
I’ve handled dozens of #MeToo cases representing women against rich and powerful men over the last five years, and I’m very concerned about the chilling effect this is going to have on women coming forward with these kinds of claims, particularly coming forward on social media, or media in general. If you’re a woman and you come forward with a claim against a rich and powerful man, I believe the first thing that’s going to happen is they’re going to threaten a defamation lawsuit. And most of these women are not Amber Heard, they don’t have millions of dollars to pay lawyers to defend them in a case like that.
What do you think will change about the #MeToo movement in the wake of the jury decision?
As a whole, I think it’s going to have a deleterious effect on the #MeToo movement. Particularly, you’re not going to have dozens and dozens of women coming forward publicly to accuse a celebrity or a wealthy individual of sexual misconduct. There won’t be sort of a warning to other women about these kinds of predatory men, because there’s going to be a fear that they’re going to get sued for defamation and win or lose — if you get sued for defamation, you’re going to be ruined financially because you’re going to have to pay a lawyer hundreds of thousands, if not millions of dollars, to defend a case like that.
How would you say other Hollywood figures weighing in on the case affected the verdict?
Not a single other woman came forward to say she, too, was physically or sexually assaulted by Depp. I think one unintended negative consequence of the #MeToo movement is that now juries expect multiple, if not dozens, of other women to testify to similar misconduct, and if they don’t see that, they may find the claim of one woman dubious. We are now conditioned to believe that abusers never abuse just one woman, so we assume he didn’t abuse one if he didn’t abuse a handful or dozens. In criminal cases they call that the “CSI effect” because after the TV show, people now expect conclusive forensic evidence in every case and have doubts about the case if none is offered.
Personally, I think the most damaging testimony in Heard’s case was from the TMZ reporter who said she called them and told them where she would be and which direction she would turn so they could photograph her bruised face, and her acting coach, who said she had a hard time mustering tears when fake-crying, which killed Amber’s credibility when she sobbed throughout her testimony without shedding tears. Those two facts were so easy to spin into “she fabricated everything.” Rarely will you ever have evidence like that to introduce in a trial like this.
Looking ahead to another high-profile case, do you anticipate the verdict in favor of Depp affecting Marilyn Manson’s defamation lawsuit against Evan Rachel Wood?
[To note: Wood alleged Manson groomed, raped, and abused her over the course of their approximately five-year relationship. Wood co-authored and lobbied for state legislation with the Phoenix Act, extending the statute of limitations for domestic violence cases in California. The actress has referred to musician Manson’s defamation suit as “retaliation” timed to her HBO documentary “Phoenix Rising.”]
One trial is not a legal precedent for another. First of all, we don’t even know what a Court of Appeals is going to do with this [Depp v. Heard] case. Bear in mind that Bill Cosby was convicted. And, you know, two years later, it was overturned by the Court of Appeal. In Virginia, the Court of Appeals will look at this decision to determine whether the evidence was sufficient to support the verdict for a finding of actual malice, because the standard is very high in defamation cases — and it’s high for a reason. This decision, this verdict, undermines the purpose of the high standard for defamation, which is to permit people to come forward with these kinds of allegations.
I think that the Marilyn Manson case is going to be a different situation. Marilyn Manson is not Johnny Depp. Johnny Depp is well-liked and almost a beloved figure in some circles. His movies generated billions of dollars and he has legions of fans. Marilyn Manson’s fan base is very particular and very limited. He’s not somebody who has widespread public support in the way that Johnny Depp does. It actually may prove to be quite the opposite situation with Marilyn Manson because I think his reputation is more of a … bizarre, cult-like figure. His public persona is not anything like that of Johnny Depp’s, so I’m not sure that the mere fact that he’s a celebrity is going to benefit him in the same way as it did Johnny Depp.
Do you believe the Depp v. Heard verdict will inspire more #MeToo defamation suits?
It’s going to embolden men who have similar accusations against them to make similar claims for defamation, with the logic being a best defense is a good offense. Secondly, it’s going to make the women that have these kinds of claims less likely to come forward, and in particular, less likely to support someone who has made a claim. If other women had claims against Marilyn Manson, they may be less likely now to come out publicly and say, ‘Hey, me too,’ after they’ve seen what happens that he ends up suing the first person that accused him. It’s going to have harmful effects for the #MeToo movement in emboldening men to attack their accusers, and go after them with defamation plans in court, and potentially ruin them financially, whether they win or lose. It will also deter and dissuade women from coming forward.
Looking just at California and the repercussions for lawsuits based in the state, do you anticipate the Depp v. Heard verdict to affect NDAs, #MeToo settlements, and the implementation of the STAND Act if women are deterred from coming forward via social media against public figures in fear of defamation suits?
[To note: The STAND Act, which targets NDAs, prohibits withholding the disclosure of factual information relating to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, filed in a civil or administrative action.]
Lee Feldman: First of all those, those laws only apply to cases that have been filed in court or filed with the Department of Fair Employment and Housing. So, if you have a sexual harassment or a sexual assault claim, that has not yet been filed, and you settle it, there is no preclusion against non-disclosure agreements. In other words, you can keep settlements and the fact of the settlement secret as long as the case had not been filed. I actually oppose laws that would prohibit you from settling the case confidentially because some of the women don’t want to be in the spotlight. They don’t want to have their claims aired publicly, and they want to settle quietly. They want to settle for the maximum amount of money that they can get for the damages that they’ve suffered. And it makes it much more difficult to do if there is a law that prevents you from doing so and keeping it confidential. But like I said, that law doesn’t apply to settlements that are pre-litigation.
In California, it’s much harder to sue for defamation on these kinds of claims, because they have an anti-SLAPP statute, standing for Anti-Strategic Lawsuit Against Public Participation. If Johnny Depp was suing in California, and he filed this defamation claim, based on what Amber Heard said in that op-ed, Amber Heard would have to immediately file an anti-SLAPP motion and Depp would have had to prove his claim. He would have had to put up sufficient evidence to establish a likelihood of prevailing before he ever got to a jury. It makes it much more difficult.
For the Heard case specifically, though, part of Depp’s testimony was not solely that Heard made up the allegations with malice but that she actually was the abuser in the relationship. What do you think this case means for men coming forward with the #MeToo movement as victims?
Well, that wasn’t Depp’s defense. He claimed she defamed him by saying she was abused. Part of the trial was him saying he was really the victim. But that wasn’t really his claim; that wasn’t necessary to prove his defamation claim. In terms of the #MeToo impact, I think that men are going to be more likely to stand up and fight these things. I think that the refrain you’re going to hear from the next public figure accused of sexual harassment is going to be ‘This is another Amber Heard situation.’ I think Amber Heard is going to be synonymous with made-up, fake, fabricated sexual harassment claims.
Can you anticipate what an appeal would look like? How much longer can we expect for this case to be in the public eye?
It won’t quite be in the public eye still. The first thing that happens in these cases is the parties will do post-trial motions. The first thing you do is you ask the judge to throw it out. But in high-profile cases, that would be rare. But it’s possible. This judge could throw out the verdict and say it was inconsistent with the evidence, or that the evidence was insufficient to show actual malice, which is supposed to be a very high standard. It’s also possible that the Court of Appeal could do that. You’re looking at maybe 60 to 120 days before the judge rules on those motions, and then it goes up to the Court of Appeal. In California, you’d be looking at a minimum of 18 months to 24 months before the Court of Appeal rules.
What do you anticipate for the next high-profile #MeToo court case?
The next one to watch is Elon Musk. It would not surprise me at all if he sued the woman and media outlet that recently accused him of sexual harassment for defamation now. He’s exactly the kind of guy that would do that. And it would ruin her, financially, regardless of whether she won or lost.