On potential liability of The Washington Post. Oops, I did it again. I offered a second opinion, on the role of the ACLU.
I don’t think Legal Insurrection had a single post about the Johnny Depp – Amber Heard fiasco of a relationship and trial. Once we heard about the you-know-what in the bed, it was like, we’re not touching this with a ten foot pole.
But the trial coverge elsewhere was unavoidable. And I saw snippets here and there, and media reports. But I also understand from our long history of covering trials (Zimmerman, Rittenhouse, Chauvin, and so many more) not to believe media coverage and to focus on the evidence.
Not having watched enough of the trial to form my own informed opinion, I have not offered an opinion on the merits of the defamation claims. And I wasn’t going to offer any opinions on the case at all until Fox News Digital asked me for an interview on a legal issue I felt I could opine on, whether The Washington Post also could be liable for the Op-Ed by Heard that gave rise to the Depp’s defamation claim. So I took the bait.
Here’s the portion of the article that mentions my interview, followed by the video (my portion starts at 1:30):
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.
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.
But wait, there’s more.
Oops, I did it again, I also opined on the potential liability of the ACLU, which helped write Heard’s Op-Ed:
“I think one of the underreported aspects of this, it has been reported, but maybe not as much focus, is that the American Civil Liberties Union, apparently from the testimony and other things, had some hand, maybe a major hand in drafting this op-ed and put aside any potential liability for them. Why are they doing this? Why is the American Civil Liberties Union getting involved in this Hollywood couple’s fight? And I think people need to really ask what has gone wrong at the ACLU, that this is what they’re spending their time on,” Cornell Law Professor William A. Jacobson told Fox News Digital.
When explaining that Heard hasn’t fulfilled her commitment to donate $3.5 million from her divorce settlement to the ACLU, the organization’s COO and general counsel Terence Dougherty said in pre-recorded testimony that the ACLU actually drafted the now-infamous op-ed at the center of Depp’s defamation case….
“If the ACLU had the major hand in drafting this — that appears to be what happened — then they would be just as liable, potentially, as The Washington Post. Maybe more so because they had a hand in drafting it,” Jacobson said….
The issue there, again, would be with the ACLU, which presumably was relying on what Amber Heard was telling them. Did they act with reckless disregard for the truth? So I don’t think it’s a different analysis. It’s just that Johnny Depp obviously made a decision not to name them, viewing Heard as the primary culprit,” Jacobson said.
“So whether they do or they don’t have potential liability, I think is something we may never find out,” Jacobson continued. “But I think people who have long held up the ACLU as some sort of paradigm of virtue have to wonder what has gone wrong at many different levels with that organization.”
Two big takeaways from this.
One, I need to remember when I do Zoom interviews to look up at the camera, not at the interviewer on the screen, because it makes it appear I’m looking down.
Two, I long for the days when if someone wanted to get even with you, they “only” left a severed horse’s head in your bed.DONATE
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