18 h 24 nov 2021 ano - NORTHERN VIRGINIA How the Depp v. Heard Trial Might’ve Been Prevented—and Why the Effort Failed

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FROM NORTHERN VIRGINIA MAGAZINE:

How the Depp v. Heard Trial Might’ve Been Prevented—and Why the Effort Failed

The actor is suing his ex-wife in Virginia over 773 words she penned for The Washington Post. The trial shines a light on a flaw in our legal system that invites the powerful and wealthy to travel across the country to Virginia to silence their critics and limit the First Amendment.

By James Finley

It’s a sign of the times that Johnny Depp’s severed fingertip can provide a pretty important lesson about the state of democracy. Precisely how the fingertip was removed from Depp has been a thorny issue for nearly half a decade now, and the subject of several highly publicized legal battles.

There are two accounts. The actress Amber Heard, Depp’s former wife, contends that while they lived together in Australia, Depp violently choked her with one hand while banging a plastic phone against the wall. The phone then broke and cut his finger. This was, she asserts, just one particularly harrowing instance of a long-term pattern of abuse by Depp.

Depp contends this is a fabrication and asserts that Heard threw a full vodka bottle at him while he rested his hand on their mantel. When the bottle exploded, it mangled his finger. (Oddly, even though Depp accuses Heard of concocting a web of lies to paint him as an abuser, both sides do agree on one thing: Depp proceeded to use the resulting blood, mixed with paint, to write messages to Heard on the walls of their home.)

The incident is shocking, and even though Depp does not come off looking great no matter which account you believe, the claims are fundamentally divergent. Someone is lying. And when the U.K. newspaper The Sun sided with Heard’s account, calling Depp a “wife-beater,” he sued the paper for libel.

He lost, with the court finding that Depp had indeed committed 12 of 14 of Heard’s enumerated abuses. Story over, right?

Nope. It turns out that Depp just needed a more advantageous playing field. Two years after the abuse, Heard penned a 773-word Washington Post op-ed about her experience, which contained the following lines:

“Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out…

“Imagine a powerful man as a ship, like the Titanic. 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.”

In the entire piece, those two brief paragraphs are the closest Heard comes to naming Depp.

The alleged abuse occurred in California and Australia. Heard wrote the op-ed in California. She then emailed it to an American Civil Liberties Union contact in New York. The ACLU contact emailed it to the Post in DC. Finally, the file was routed through the newspaper’s servers and printing presses in Fairfax County, where it was digitally and physically published.

Despite the subtle language, the tenuous connection to Virginia, and the previous loss in court on a stronger claim, Depp sued Heard in Fairfax County—and has won four motions to dismiss in three years. On October 13, 2021, a Fairfax County judge ruled that because the processors and ink cartridges that delivered the words to the public were located in Virginia, Depp could sue Heard for libel in the state. If all things go as expected, the Northern Virginia suburb will play host to a battle of which Hollywood actor abused whom, a potentially multi-million-dollar media circus thousands of miles away from where any alleged crime occurred.

It’s strange. Not quite Kafka-esque, maybe, but it seems absurd and it involves a trial, so Kafka-adjacent, at least—a hiccup in the legal system that’s bringing the worst kind of Hollywood tabloid story into Virginia. And yet, this isn’t a one-off occurrence, the caprice of a wealthy actor finding a single loophole to exploit. The state of Virginia has played host to a succession of strange, seemingly random lawsuits in recent years, with everyone from an internet troll posing as a cow to Twitter itself being slapped with libel suits.

The individual cases may be random, but the underlying reason is not. To understand what is happening with Depp v. Heard—just one tragic Hollywood story of he said, she said—is to grasp a much larger question of how a lawful society can malfunction. Virginia is acting as a haven for individuals looking to skirt the First Amendment, to punish and silence their critics. The problem is as serious as it is insidious, one that extends deeper than celebrities to questions of the possibility of activism, of freedom of speech and the press, and of the function of democracy. And even as lawmakers and activists try to change that fact, powerful interests in Virginia would like to keep things largely the way they are.

A Glitch in the Democratic System
The concept behind all the absurdity is called SLAPP tourism. That’s a term so strange, it merits a lot of breaking down.

SLAPP stands for “strategic lawsuits against public participation.” It’s a simple legal trick: Essentially, if someone says something that you don’t like, you sue them for libel. Your aim isn’t to win the lawsuit—that would be an added bonus, if anything. Depp’s possible motivations—a PR miscalculation, personal revenge, an indignant sense of justice, perhaps a combination of all three—are ultimately his own, secreted away as of yet beneath his slick center part. But the functions of SLAPPs are generally to punish (by making defendants pay expensive legal fees for years) and to stifle speech.

That’s because in a libel suit, if a person comments on the case, the comments can be used as further evidence of malicious intent. For example, Republican Rep. Devin Nunes of California sued Esquire and its reporter Ryan Lizza in Virginia in 2019 over an article that criticized Nunes’ family farm. The case was dismissed, but it was reopened by an appellate court in 2021, simply because Lizza retweeted his old article with knowledge that Nunes disagreed with its veracity. Once someone is SLAPPed, even the smallest word on the contested subject is dangerous.

That’s where the “tourism” part comes in. In libel cases, plaintiffs are always choosing the playing field because certain states make it much easier to sue for libel than others. Plaintiffs seek out the states that give them the best shot at doing the most damage. And Virginia makes it really easy for SLAPP tourists to vacation here.

Nunes didn’t stop with Esquire. He went on the warpath in the Commonwealth, suing CNN, an anonymous Twitter user known only as “Devin Nunes’ Cow,” and even Twitter itself for talking about his role in the Russia investigations and Trump impeachment hearings. The Twitter case is particularly useful when it comes to understanding just how Virginia encourages SLAPP tourism. Nunes sued Twitter on the basis that the social media company had an office in Virginia, and that his Congressional intelligence work is primarily in Virginia.

Those connections, like in the Depp case, are tenuous. Nunes is a Congressman in California, where Twitter is also headquartered. But Virginia law has a technicality: an outdated, strict interpretation of the lex loci delicti rule, a bit of legal Latin indicating the trial should occur where the fault was committed.

In libel cases, that means where the defamatory material was published. But the digital age has made pinning down exactly where that is relatively meaningless because data can be sent across the world in the time it takes to refresh your browser. As a result, most states look instead to where the alleged harm occurred, among other evidentiary factors, to determine where the trial should be held. Heard’s lawyers, for example, have argued her trial should take place in California, where the couple lived and where their Hollywood careers are based and therefore where Depp secured the most purported damage to his reputation.

“To the best of my knowledge, I have never stepped foot in Virginia,” Heard has testified.

But because of Virginia’s older interpretation, the state invites litigation from all over the nation in even arbitrary connections. Combine that with Virginia’s close relationship with DC, the biggest media capital in the U.S. outside of New York and California, and you have grounds for an almost unlimited number of cases.

There’s a Fix to All This

Anti-SLAPP laws are a legal fix to the glitch mucking everything up. They allow defendants to put the burden of proof back on the plaintiff to prove their case has at least some merit before costly legal processes begin. Effective anti-SLAPP laws also automatically require the plaintiff to pay the defendant’s legal fees if the defendant gets the lawsuit dismissed or wins at trial. These measures discourage frivolous lawsuits and make them easy to dismiss.

But Virginia not only makes it easy for SLAPP tourists to get here, it also makes them feel right at home once they arrive.

“Virginia has become somewhere that public figures and public officials think that they still might be able to intimidate their would-be critics, as opposed to other jurisdictions with stronger anti-SLAPP laws,” says Lin Weeks, a staff attorney with the University of Virginia First Amendment Clinic.

While 31 other states, including media heavyweights New York and California, have found anti-SLAPP laws to be an effective solution to hordes of SLAPP-happy tourists, Virginia has so far failed to enact them. Thus, SLAPP tourists are fleeing to Virginia. California making it hard for you to sue your ex-wife? Just head east to Fairfax County.

Heard’s lawyers point to this fact in their testimony: “…litigating in Virginia would preclude Ms. Heard from asserting her substantive right to require Mr. Depp to prove his likelihood of prevailing on the merits before litigating further under California’s Anti-SLAPP statute,” their testimony states. “Ms. Heard’s anti-SLAPP motion applying California law would undoubtedly preclude Mr. Depp’s claim from going any farther.” Virginia does have a nominal anti-SLAPP law on the books, but its lack of a pretrial motion to dismiss—and the fact that fees are not reassigned to the plaintiff—make it little more than a statement endorsing free speech.

Last year, after the Nunes cases attracted national ridicule, the Democrat-controlled Virginia General Assembly tried to correct that deficiency. It failed.

Virginia May Not Want the Solution

Two very different bills were created and passed in the state Senate and House, respectively. The effort generated excited and optimistic reporting in the press. The law would, after all, be a significant protection for journalists. But the actual failure of the law has gone unrecognized. The New York Times editorial board, in advocating for an anti-SLAPP law in New York, even incorrectly cited Virginia as a state that managed to pass much-needed protections into law.

Part of the bill’s failures are, according to lawmakers involved, incidental. The year 2020 was a chaotic one, and pressing, hot-button issues like police reform took precedence.

But there’s reason to be pessimistic about the possibility of passage.

Paul Levy, an attorney with DC-based nonprofit consumer advocacy organization Public Citizen, who has previously advocated for anti-SLAPP bills in Virginia and seen them fail, points to two facts: Lawyers earn more money the more trials there are, and a lot of state legislators are lawyers.

“It’s my impression that the trial bar likes things the way they are, right? It’s lots of business for the trial bar, not to be cynical or anything. And SLAPP statutes make it harder to bring certain kinds of cases and shorten the amount of time, really, that both sides, both sets of lawyers, get to spend on litigation,” Levy says. “There is a tendency for members of state legislatures to be lawyers, right? So, you know, there’s inevitably a degree of influence.”

And as any Northern Virginia resident knows, there is a large and wealthy voting population of lawyers in the DC suburbs of Virginia. Indeed, the most prominent lobbying force against anti-SLAPP bills has been the Virginia Trial Lawyers Association. The VTLA did not respond to requests for comment for this story, but during the effort to pass legislation last year, it took the position that the model bill the Virginia legislation was based on carved out too many protections for what it called “Big Media,” referring to large media organizations.

“…The Model Bill cuts too wide a swath in terms of its scope and the causes of action to which it applies, while clearly serving to take out of its ambit any statements made by big media,” the VTLA stated in its position letter. “Mandatory fee-shifting is antithetical to the American Rule and Virginia practice.”

[Edited to relevant paragraphs only - full article available via the links below]

The future of SLAPP in Virginia could be determined in early 2022, when the Depp v. Heard case moves forward. If its big names manage to attract enough attention, Virginia lawmakers may finally find a way to put an end to our strange tourism industry.

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