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Now I’ve Gone and Done It – I Offered An Opinion on The Depp-Heard Trial

Now I’ve Gone and Done It – I Offered An Opinion on The Depp-Heard Trial

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):

Johnny Depp verdict: Legal experts believe Washington Post could be held liable too, but case would be tricky

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.


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The Gentle Grizzly | June 4, 2022 at 9:27 pm

A celebrity trial about folks from Hah-leee-wood was all I needed to put this on my “ignore” list.

    I’m glad you didn’t go off the Depp end. I Heard Amber does that to some people.

    If Johnny Depp couldn’t defeat the cancel culture mob and fight for due process in this country nobody else would be able to either this trial was a major one.

      GeorgeCrosley in reply to Danny. | June 5, 2022 at 9:30 am


        Johnny Depp had his life ruined by a lie based on the me too standard that no evidence is needed and evidence against is irrelevant.

        He fought back, and if he wasn’t able to win it would mean you wouldn’t have stood a chance either.

        But if the culture doesn’t matter to you I am sure the Bush wing of the party will be glad to have you.

      M Poppins in reply to Danny. | June 6, 2022 at 9:25 pm

      sorry, but Depp, as an ardent fan of the communist murderer Che Guevara, isn’t different from the leftist creeps of cancel culture.

    Indeed. Every time I checked my Give-a-flip meter I saw it was still on zero.

      Another Voice in reply to DSHornet. | June 5, 2022 at 5:13 pm

      That response deserves another up vote ! +1 more

      Danny in reply to DSHornet. | June 6, 2022 at 12:20 pm

      So a major celebrity is slandered by an abusive ex wife and has his life eliminated by a blacklist as a result. He is able to prove he not she was the one abused but the entire liberal establishment is against him, he choses to fight and you don’t care.

      The year 2000 is behind us Mr. Bush the culture is what matters like it or not nobody gives a dam about the Democrats possibly raising Jeff Bezos’ taxes by half a percentage point.

Morning Sunshine | June 4, 2022 at 9:38 pm

I have known men who were psychologically, physically, emotionally, or financially abused by the women in their lives; most more than one of those. I was also planning to avoid this trial until I accidentally watched a little bit, saw some of the evidence submitted, and then I started hoping that Depp would win and bring light to this little-discussed aspect of domestic violence.

My heart breaks for these GOOD men I know and how broken they are after they get out of that relationship. I kind of don’t blame men for avoiding women if that is the kind of relationships they have had and seen.

    The worst part is the presumption that the man is the aggressor/abuser and the tendency of people to disbelieve a woman half the size of her husband is an intimidating minefield of explosive triggers behind closed doors. A helpful book for me was M. Scott Peck’s “The People of the Lie” and the short stories “Hartley and Sarah” and “Spiderphobia”.

Legal Insurrection is none the worse for deploying precious time, attention and resources to stories and issues that actually matter.

    The Depp/Heard trial had signifiant cultural impact: that is, the “me-too” movement was dealt a significant blow, and the female abusers who run to join it (Amber Heard, Asia Argento and the like) might think twice about falsely accusing someone. Of course, the sickest among them will want the publicity.

    However, because of the guts of Johnny Depp, there is a reference by which a man or woman being abused by an otherwise ‘secret’ malignant narcissist can cite: “he or she is an Amber Heard” – and everyone around them will get it.

      If you’ve forgotten the sexual assult allegations against Asia Argento:

      “On 19 August 2018, The New York Times published allegations that Argento sexually assaulted actor Jimmy Bennett.[4] Argento had first met Bennett when he played her son in the 2004 film The Heart Is Deceitful Above All Things when Bennett was 7 years old.[4] The alleged assault occurred in 2013 when he was two months past his 17th birthday in a hotel room in California where the age of consent is 18; Argento was 37 at the time.[4] According to Bennett, in their encounter Argento gave him alcohol, performed oral sex on him and had sexual intercourse with him.[4] Argento had quietly arranged a $380,000 nondisclosure settlement with Bennett in the months following her revelations regarding Weinstein.[4] Bennett said when Argento came out against Weinstein, it stirred memories of his own experience in 2013. He imparted that he had sought to resolve the matter privately,[49] and had not spoken out sooner “because I was ashamed and afraid to be part of the public narrative.”[50] In a statement provided to the Times, he said: “I was underage when the event took place, and I tried to seek justice in a way that made sense to me at the time because I was not ready to deal with the ramifications of my story becoming public. At the time I believed there was still a stigma to being in the situation as a male in our society. I didn’t think that people would understand the event that took place from the eyes of a teenage boy.” Bennett said he would like to “move past this event in my life”, adding, “today I choose to move forward, no longer in silence.”[50]

      Argento denied the allegations, claiming that she never had a sexual encounter with Bennett and that when he made a request for money to her, her partner Anthony Bourdain paid him to avoid negative publicity.[51] On 22 August, she released a statement reading: “I strongly deny and oppose the contents of the New York Times article dated 20 August 2018, as circulated also in national and international news. I am deeply shocked and hurt by having read news that is absolutely false. I have never had any sexual relationship with Bennett.”[52] A spokeswoman for the Times responded, “We are confident in the accuracy of our reporting, which was based on verified documents and multiple sources.”[50] Fellow #MeToo advocate Rose McGowan initially expressed support for Argento and implored others to show restraint, stating, “None of us know the truth of the situation and I’m sure more will be revealed. Be gentle.”[52] McGowan faced criticism on social media for her comments, which contradicted the #MeToo movement’s message of believing survivors.[52] Following Argento’s denials, a photograph of her topless in bed with Bennett was published, as well as her alleged admission of sex with him in text messages to model Rain Dove. In the screenshots, Argento reputedly stated: “I had sex with him it felt weird. I didn’t know he was a minor until the shakedown letter.”[53] In a letter published online in September 2018, Argento’s attorney admitted there was a sexual encounter, but claimed Bennett “sexually attacked” Argento.[54] Amid the allegations, it was announced that Argento had been dropped as a judge on X-Factor Italy.[55]

Remember, it doesn’t matter what the truth is. What matters is what you can PROVE.

I think it’s pretty safe to say that the ACLU and the Washington Post were absolutely on board with Heard lying about Depp, and they had no problem printing her obvious and ludicrous lies.

But can Depp’s lawyers PROVE that they knew they were lies in court?

I don’t think that’s very likely, unfortunately.

    AnAdultInDiapers in reply to Olinser. | June 5, 2022 at 4:32 am

    I’m not sure about the contents of the Op-ed, but they did prove Heard lied in court – she’s apparently given conflicting testimony in two different courts, so there’s a discussion now whether she might face perjury charges in the UK.

    She won’t, but that’s nothing to do with the merits of a charge and everything to do with the CPS refusing to take on a high profile case that’ll get them yelled at for prosecuting a ‘victim of domestic violence’. That all of the credible evidence seems to suggest she was the source of all the violence appears not to matter.

    diver64 in reply to Olinser. | June 5, 2022 at 6:54 am

    I don’t think either were “on board” with Heard. I think that in the rush of “Believe All Woman” they just didn’t care about the truth or look into it very hard.

I hope it is all over.. and I kinda liked the pirate.

iconotastic | June 4, 2022 at 11:55 pm

I am grateful for the alternative interpretation of ‘Amber Alert’ though.

“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.”

Truer words, Mr. Jacobson. Truer words.

    henrybowman in reply to Treguard. | June 5, 2022 at 10:54 am

    The ACLU lost its soul well before 1991, when they honored the Bill of Rights bicentennial by publishing a “Bill of Rights” poster celebrating amendments 1, 1, 1, 4, 5, 6, 8, 14, 15, and 19.

    For those of you who are carrying Biden-phone ankle-bracelets, the Bill of Rights are amendments 1 through 10, solely, and without exception. Si no puede leer esto, pídale a su asistente social que se lo lea.

Depp/Heard…..they’re both twits.

I feel sorry for both of them. They both seem to need psychological help.

Are either of them even mentally incompetent? Both seem quite immature. In an abstract legal world, proving defamation would require showing an accuser used provably false statements, not opinions, to harm a person’s reputation who sought no public spotlight on the matter. But, can Amber Heard fully understand or comprehend the difference between what is factual and what isn’t? Or even Johnny Depp? And, were either of them even the least bit embarrassed about their public behaviors? The bar for legal competence needs to be raised, to allow judges to refer cases like this to psychological evaluation and treatment.

    Dolce Far Niente in reply to ruralguy. | June 6, 2022 at 10:42 am

    Even if the pair of them are in fact immature and feckless does not make them incapable of discerning right from wrong or truth from fiction.

    That they have heretofore been insulated from the consequences of their actions due to fame and fortune can hardly be used as justification for further protection, particularly if you are citing some vague “psychological” unease at a lack of competence.

    Every hoodrat convicted of any crime at all would fail your competency test; it is, quite simply part of what makes them criminals rather than productive and honest citizens.

“have gone and done it” is called pseudocoordination among descriptive linguists, or more specifically verbal pseudocoordination. With adjectives they’re happy to call it hendiadys.

Some have felt that it needed further analysis as to its rules, distinguishing the go- type and the try- type.

That’s what happens when you start rick-rolling people. It’s like losing your virginity. Next think you know, you got AIDS.

E Howard Hunt | June 5, 2022 at 9:22 am

Johnny lost several fortunes over monetary incontinence. Perhaps he can replenish his coffers with a new line of adult diapers: Depp-Ends.

Amber could become a billionaire by charging a nickel to each person who would like to throw a pie into her face.

Early in college, I was a great fan of the ACLU. Then the national head of the organization visited the Central Texas branch and allowed as how he recommended that young people looking for an organization should join Young Socialists. I then started seeing through their propaganda.

    henrybowman in reply to ray. | June 5, 2022 at 11:18 am

    And they spoiled it for everybody else.

    ‘As long as I am mayor of this city, the great industries are secure. We hear about constitutional rights, free speech and the free press. Every time I hear these words I say to myself, “That man is a Red, that man is a Communist.” You never hear a real American talk like that.’

    Hague was, of course, a Democrat, and a vice-chairman of the DNC. Go figure.

    M Poppins in reply to ray. | June 6, 2022 at 9:35 pm

    Yes – they were always a tool of the left.

“her firsthand accusations were untruthful,”
You could almost say she LIED! Be bold! She LIED!
: )

Professor someone needs to hold up the target.

Good luck

LukeHandCool | June 5, 2022 at 11:50 am

A soiled bed is the new horse’s head.

Actually, I think Amber was just trying to be inclusive to trans women. Is Johnny Depp a transphobe?

If you wondered how insane the trans movement might become, this is how insane:

“Encourage women to smell their poop to be more inclusive to Trans women.” This is not a parody:

    henrybowman in reply to LukeHandCool. | June 5, 2022 at 4:40 pm

    Holy crap. The same website has an article about “transracial” people:

    “there are many examples of transracial folks throughout history – the race they actually are does not align with the one they were assigned at birth.”

    The Babylon Bee gets trumped again. It really IS time for us all to identify as a privileged minorities. Dibs on disabled female veteran, for all the slushy federal set-asides.

I’ll admit that I did watch most of the trial, one factor not mentioned so far, just how biased and out of touch most of the media is. I had no real opinion of either party at the start of the trial, I’m no legal expert but what I was watching and listening to on a daily basis was not matching up with what most of the media was reporting.
Depp portrayed himself as the highly flawed person he is but never was physically aggressive toward her or any other women, in fact he retreated from her. On the other hand she tried to portray herself as one with minimal flaws and took no ownership of her flaws. She was the one who admitted to striking Depp. None of her friends were there to testify in support of her, to confirm that she was the victim of physical abuse.
She was the one who sought the restraining order, she was the one who did not fulfill her commitment to charitable donations. She did not come across as an authentic, believable person.
Her legal team, while working for a highly flawed client was much less effective than Depp’s team.

There is a bright side. Amber Heard has an endorsement contract with Charmin tissue. Now we’re waiting for a a high thread sheet promo.

Anacleto Mitraglia | June 5, 2022 at 6:37 pm

” 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”.
Could have been worse, imagine if you were a toobin.

RandomCrank | June 5, 2022 at 6:51 pm

Put me on the jury, and I’d have found her guilty and awarded him damages of $1. Together, they are a human train wreck. As for the ACLU, they’re whores. Whatever they once were, they are no more.

What’s a Deep Heard trial?

I for one would love to see the Professor make a visit to Rekieta Law

Andrew Branca has already taken the plunge.


Mim Moco

    The Packetman in reply to Mim Moco. | June 6, 2022 at 12:02 pm

    I would agree, but only if the Professor is prepared to answer The Question … ‘Balls or No Balls’!

Late to the discussion. The matter has gone to the legal world so it should probably be dealt with according to the Law. That said, it’s a shame they can’t both lose. I didn’t follow the trial, had never heard of her, and only knew of him as being associated with the Pirates of the Caribbean movie franchise – didn’t see any of them. From what little could be gleaned from headlines, the media loved the trial, the principals (and their attorneys) are pretty good representatives of the worst our society has to offer, gifted, spoiled, profligate, self centered, coarse, base human beings.