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Actor Johnny Depp won his defamation case against ex-wife Amber Heard and legal experts think the Washington Post could be liable for publishing the op-ed at the center of the bombshell trial, but that case may be difficult to make.
The jury found that Heard was liable for defamatory comments she made against Depp in the 2018 op-ed published in the Washington Post, where she implicitly accused him of domestic abuse. The jury awarded Depp $10 million in compensatory damages and $5 million in punitive damages; Judge Penney Azcarate reduced Depp’s punitive damages award from $5 million to $350,000, the maximum under Virginia law, bringing the total sum to just over $10 million.
“I absolutely believe that the Washington Post should be held accountable as well in this case. A jury just decided that all three of the statements in that Washington Post op-ed were deemed defamatory,” criminal defense attorney Brian Claypool told Fox News Digital.
“On top of that, they also believed that Amber Heard acted in a punitive way with falsifying these stories. So it’s the duty of a newspaper and other media outlets to vet or filter information before they publish it to the world and potentially damage the reputation of somebody irreparably,” Claypool added. “The Washington Post is not off the hook.”
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Claypool felt Depp’s team should bring legal action against the newspaper owned by billionaire Jeff Bezos to set a precedent for similar cases going forward.
“You have got to do your due diligence before posting that article. You can’t simply have somebody walk into your office and say, ‘Hey, you know, I’m accusing Johnny Depp of all these bad things,’ before going out and doing due diligence,” Claypool said. “I think it’s incumbent upon Johnny Depp’s team to bring a legal action against The Washington Post, to set a precedent in the future that all media outlets need to be extra careful before they publish to the world allegations of domestic violence.”
Claypool believes the jury ruling in favor of Depp would make a case against the Post easier because the issues have already been litigated.
“To me, the real culprit in this Depp versus Heard case is The Washington Post,” Claypool said. “Without the Washington Post op-ed being published, then there would have never been a defamation case.”
Legal Insurrection founder William A. Jacobson, a professor at Cornell Law School, isn’t as convinced that the Post could be held liable, but he doesn’t completely rule it out.
“So the question is whether the Washington Post should be held liable for a defamatory op-ed written by an individual who is not employed by The Washington Post,” Jacobson told Fox News Digital.
“Could they potentially be liable? Yes, they could potentially be liable, but it would legally impose another step on the plaintiff, which is to show that the editors, and the Washington Post itself, had some sort of imputed knowledge or imputed reason to think that her firsthand accusations were untruthful,” Jacobson continued.
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Jacobson explained that Depp’s legal team would have a significantly more difficult time proving the Post was liable for defamatory comments than it did when a jury ruled in his favor against Heard.
“The normal standard that you would have to show for a public figure like Johnny Depp would be known to her, but would the falsity or the reckless disregard for the truth be imputed to the publisher? And that would be a factual question,” Jacobson said. “So it is potentially something that the Washington Post would be on the hook for, but it would be a much more difficult case to make.”
Jacobson said that op-eds themselves are not exempt from potential defamation lawsuits, but there is a “higher hurdle” to win such a case.
“People have a constitutional right to express their opinions, whether it bleeds over to a false statement of facts that negatively impugn somebody’s reputation and is defamatory is a factual question,” Jacobson said, noting that details of the op-ed could become an issue if Heard’s team appeals the verdict.
“This was a publication of an op-ed which did not mention his name, did not really state a lot of facts,” he said. “I would not be surprised if this is an issue on appeal.”
The New York Times reported on Thursday that Heard plans to appeal the decision.
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While Claypool feels Depp should pursue a case against the Post, Jacobson isn’t so sure.
“Whether Johnny Depp goes after The Washington Post, I think is a strategic issue. He has already won, he has already been awarded the damages that he would be entitled to, so I can’t see how he would get more damages, because the jury has already said, ‘Here is how you have been damaged and here are your compensatory damages,’” Jacobson said. “So I can’t see how he would get more damages when a jury’s already awarded him the damage he suffered.”
Jacobson also feels it was “very strategic” that Depp did not name the Post in the original suit.
“They would have had defenses that Amber Heard did not have,” he said. “Additionally, it might have distracted the jury’s attention from what Johnny Depp apparently wanted, which is to put her on trial, not to put an editor of the Washington Post on trial, but to put her on trial and I think that they made that strategic decision. I would be surprised if they moved beyond that at this point.”
On Thursday the Washington Post added a lengthy editor’s note to the original story.
“Editor’s note, June 2, 2022: In 2019, Johnny Depp sued Amber Heard for defamation arising out of this 2018 op-ed. On June 1, 2022, following a trial in Fairfax County, Va. Circuit Court, a jury found Heard liable on three counts for the following statements, which Depp claimed were false and defamatory: (1) ‘I spoke up against sexual violence — and faced our culture’s wrath. That has to change.’ (2) ‘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.’ (3) ‘I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse. The jury separately found that Depp, through his lawyer Adam Waldman, defamed Heard in one of three counts in her countersuit,” the Washington Post wrote.
JOHNNY DEPP VERDICT: WASHINGTON POST ADDS LENGTHY EDITOR’S NOTE TO AMBER HEARD OP-ED THAT WAS RULED DEFAMATORY
Jacobson feels the editor’s note was appropriate, although he’s not sure it will insulate them from potential liability.
“It was the right thing to do where you had an op-ed written by somebody and that op-ed published in your newspaper was, in fact, the subject of a negative jury verdict. I think it was appropriate for them to add that note to it, so that anyone in the future going forward reading it would know what at least a jury has held about that,” Jacobson said.
The Washington Post declined further comment and pointed Fox News Digital to the editor’s note when asked about the situation.
The members of the jury also awarded Heard $2 million in compensatory damages over a defamatory statement Depp made through his attorney.
The trial that created a media frenzy doesn’t appear to be leaving the cultural zeitgeist anytime soon. Barstool Sports founder Dave Portnoy took to Twitter immediately following the verdict and suggested the Post shouldn’t be let off the hook for its role in the saga.
“She posted this thing basically saying that Johnny Depp hit her, abused her, did all these horrible things, domestic violence, sexual deviancy, all this stuff up in the Washington Post. And what’s the Washington Post? They hold no responsibility in this?” Portnoy wondered in a video message.
OutKick founder Clay Travis, who is also a lawyer, feels the Washington Post published “fake news” by running Heard’s op-ed.
“There probably is a claim against the Washington Post,” Travis said Wednesday evening on “Hannity.”
“This was an op-ed piece, right? So she’s claiming to tell the truth, to what extent was there an investigation done? Remember they definitely wrote the headline, which was a major consequential aspect of this case,” Travis said.
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Fox News contributor Joe Concha, who was on the panel with Travis and Sean Hannity, reminded viewers that former Covington Catholic High School student Nick Sandmann has settled multimillion-dollar defamation lawsuits against news organizations, including the Washington Post, over botched coverage that portrayed him as the aggressor in a viral 2019 confrontation with a Native American man.
“I think Sandmann here probably is the most relevant person to think about if Johnny Depp’s next move in court is to go after the Washington Post, because you remember, the Post along with CNN, they were sued for defamation by a high school student to the tune of $275 million each and both of those publications were forced to settle,” Concha said. “So, will the Post be facing a similar suit here from Johnny Depp? I mean, stay tuned.”
Fox News’ Joseph A. Wulfsohn, Janelle Ash and Rebecca Rosenberg contributed to this report.
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