Amber Heard and Johnny Depp Now Awaiting Answers on Their Respective Appeals

On November 23, Amber Heard, by way of her latest legal team at Ballard Spahr, filed her brief to appeal the verdict in her ex-husband Johnny Depp’s defamation case against her. After the trial, a six-week public spectacle streamed from a Fairfax County, Virginia, courtroom from April to June, a jury found Heard responsible for three counts of defamation and awarded more than $10 million in damages to Depp. 

Heard hired a new firm post-trial, and the team is now led by First Amendment stars Jay Ward Brown and David L. Axelrod. The opening brief lays out several grounds for appeal in Judge Penney Azcarate’s proceedings, and these indeed include First Amendment arguments. The Washington Post op-ed that Depp sued Heard over, claiming it had a “devastating” effect on his career, was published in 2018 and written by Heard in coordination with the American Civil Liberties Union; it supported legislative protections for domestic abuse victims. She didn’t use his name in it and described herself as a “public figure representing domestic abuse.” The argument is that her op-ed could be considered just that: an opinion. 

“The trial court also erred in overruling Heard’s demurrer, in which she argued that the challenged statements are non-actionable expressions of opinion and are not reasonably capable of conveying the alleged defamatory implication,” the filing reads (Deadline published the appellate brief in full). “That holding, if allowed to stand, undoubtedly will have a chilling effect on other women who wish to speak about abuse involving powerful men.”

The appeal also argues that the trial should have never moved forward in the first place. The court in Virginia was not the appropriate forum to hold the trial since the claims had no real connection to the state and neither party had spent any significant time there, it argues. (Depp’s camp successfully previously argued that because The Washington Post was published in Virginia, the case fell within that jurisdiction. The Post was not implicated in the case.) Additionally, the brief states that since a judge in London’s High Court had found more than 10 of Heard’s accusations about Depp’s domestic abuse to be “substantially true,” the American trial should not have had to move forward. (Depp sued the publisher of The Sun in the UK in 2018 for a headline describing him as a “wife-beater,” but was unable to disprove the designation in court and lost. While he sought to appeal, his request was denied.)

As for the US trial, the brief claims that when it did ultimately go forward, there were issues regarding evidence both admitted and prohibited, as well as Depp’s lack of proof around actual malice and the instructions given to the jury around actual malice. “First, [Depp] did not demonstrate that Heard was aware of and intended to communicate the alleged defamatory implication that he had abused her,” it reads. “Second, he did not establish that Heard knew the alleged implication was false or subjectively entertained serious doubts about its truth. The trial court erred in declining to set aside the jury verdict and enter judgment in Heard’s favor.”

“The trial court then refused Heard’s proposed jury instruction on the ‘communicative intent’ prong of actual malice,” it continues. “Consequently, the jury instructions were missing a key requirement for establishing a defamation-by-implication claim.” 

Heard is not the only one appealing the jury’s decisions in the springtime trial. After Heard countersued Depp for $100 million, she won on one of the three counts of defamation. Adam Waldman, a lawyer for Depp at the time, had given a statement to the Daily Mail in 2020 amid Depp’s other defamation case against the publisher of The Sun, saying that Heard’s claims of abuse were a “hoax.” Heard’s team claimed Depp was “vicariously liable” for his representation’s statements, and the jury agreed in that one instance, awarding her $2 million. Depp’s attorneys have already filed to appeal this decision. 

Both appeals are now under review in Virginia.