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Johnny Depp doesn’t live in Virginia. Neither does Amber Heard, his ex-wife. In fact, there’s little evidence that either of the actors have spent much time in the state. Nevertheless, a Virginia state judge on Thursday ruled that Depp will be allowed to move forward in Virginia in his $50 million defamation case over a December op-ed in The Washington Post centering on her discussion of domestic abuse.
The two have been involved in a vicious war of words since their 2016 divorce. Heard contends the Pirates of the Caribbean star was abusive, while Depp says the reverse is true — she allegedly was the hostile person in the marriage.
Heard’s op-ed doesn’t mention Depp by name, but he feels the piece sufficiently would be understood by readers to refer to him when she writes, “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.”
The initial dismissal motion wasn’t meant to resolve the truth of the situation, although her lawyer Eric George presented his suit as “an all-too-transparent ploy to stanch the ongoing damage to his reputation as a Hollywood star.”
The key issue at the outset of the case became whether Depp had essentially forum-shopped his suit to Virginia, exploiting the fact that this is where the printing presses of The Washington Post are located.
Why not California, where both actors live and work and where most of the witnesses are based? Among other things, California has a strong anti-SLAPP statute, intended to deter frivolous legal actions arising from First Amendment activity. Having the case in California potentially means a better chance that Heard would get a judge to take up Depp’s likelihood of prevailing at a much earlier stage. Additionally, Depp would risk paying Heard’s legal fees.
Why not New York? After all, Heard didn’t actually communicate directly with The Washington Post. Instead, she submitted her op-ed through a contact at the ACLU who was based in New York. Arguably, that means that Heard’s statements were first published via email in New York. But to litigate in New York potentially meant Depp appearing before a judge in the media capital of the world. That forum has some sophistication with First Amendment issues.
In the internet age, where publication happens almost simultaneously and reaches globally, jurisdiction has become a big deal — and yet, maybe surprisingly, there’s a paucity of cases in Virginia about the subject.
Bruce D. White, Chief Judge of the Nineteenth Judicial Circuit of Virginia, addresses two that come close.
Virginia is one of just ten states that adhere to what’s known as the lex loci delicti rule, which is Latin for place of the wrong where the tort was committed. As White notes, that’s defined as where the publication occurs, but of course, dealing with internet publication clouds the analysis, and in the eyes of some observers, the lex loci delicti rule is outdated. Thus, many states have begun to use a “significant relationship” test to figure out whether a tort case really belongs within the forum.
As for the two past cases — both in federal court — the first involved an individual who had uploaded footage of an individual who drove through a crowd of counter-protesters in the infamous “Unite the Right” rally in Charlottesville in 2017. A plaintiff brought suit against multiple defendants who had published online articles portraying him as a “deep state” operative. In that case, the judge applied what was much like the “significant relationship” test in allowing the case to proceed in Virginia.
The second case got even more attention: A staffer at the Democratic National Committee and two donors sued Donald Trump for allegedly conspiring with the Russians and WikiLeaks to promulgate hacked emails during the 2016 election. In March, a judge rejected the suit, but in doing so, had applied the more traditional lex loci delicti rule.
The judges in those past two cases diverged, and partially because the issue hasn’t yet been taken up by the Supreme Court of Virginia, White doesn’t feel it’s appropriate to adopt the more modern standard of testing the relationship of Depp and Heard, and his claims, to Virginia’s interest. What matters instead is the place where the publication occurred.
“The publication did not occur until December 18, 2018, when the Op-Ed was uploaded to the internet on The Washington Post’s website,” writes White in the opinion (read here). “It was only then that the allegedly defamatory statements were read by non-interested third parties… [T]he Court finds that publication occurred in Virginia.”
As a result, this county court in Fairfax, Virginia gets to keep its touch with celebrity, at least for now. The ruling could be appealed with Depp and Heard possibly breaking legal ground on the issue of jurisdiction in online defamation cases. Otherwise, the case will move forward and explore a different sort of relationship — the troubled marriage — as well as how that applies to Heard’s op-ed. To prevail, Depp will need to demonstrate that the op-ed contained factually inaccurate statements that were “of and concerning” him and that those statements damaged his reputation.
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