Hollywood lawsuit hits Virginia and exposes weak free speech protections, lawmakers say

RICHMOND, Va. (WRIC) — A feud between two once-married movie stars, Johnny Depp and Amber Heard, is unfolding in a Virginia courtroom this week. Some say it’s an example of “defamatory tourism” that shows how inadequate state law is in protecting free speech.

Depp accuses Heard of defaming him a 2018 editorial calling for reform in which she details her own experience of sexual assault and domestic violence without naming the specific perpetrators.

The two face off in Fairfax County, Virginia, even though both actors live in California.

Depp’s attorney said it was because the article appeared in The Washington Post, which has ties to Virginia.

Jennifer Nelson, senior counsel for the Journalists Committee for Freedom of the Press, has another theory.

“There’s a reason he filed it in Virginia and not California and it’s because Virginia’s anti-SLAPP law is weaker,” Nelson said. “This is a case that has been dragging on for years and has absorbed a significant amount of court resources.”

SLAPP stands for “Strategic Pursuit Against Public Participation”. Nelson said the anti-SLAPP laws are designed to deter powerful people and corporations from using costly lawsuits and lengthy trials to suppress opposition.

Sen. Scott Surovell (D-Fairfax) said attorneys look for states with inferior safeguards in place and loose ties to a case to justify filing a lawsuit there. He said Depp vs. Heard was just the latest high-profile First Amendment fight to land in Virginia.

Surovell said that in states with stronger protections, baseless cases are thrown out in the early stages and a plaintiff may be forced to cover the defendant’s attorney fees. That’s not the case in Virginia, according to Surovell.

“Not talking about it chills freedom of expression. It makes people think twice before saying things about people or companies that have a lot of money. They may be afraid of being spent under the table or buried in litigation,” Surovell said.

The disparity has some apply for federal standards and state-level reform in the meantime.

A bill introduced by Delegate Schuyler VanValkeburg (D-Henrico) in Virginia passed with bipartisan support in 2020, but failed to emerge from closed-door negotiations intended to iron out differences between the two versions of the legislation. He said the structure of Virginia’s legal system complicated the issue, and the push lost momentum when the coronavirus pandemic hit.

Surovell said he plans to revive the effort in the 2023 or 2024 legislative session, depending on the limits of the bill. He said the implications of the change would be far bigger than this celebrity feud.

“It’s a problem that can happen to almost anyone if they choose to speak out in public on an issue that’s important to them in their community,” Surovell said.

University of Virginia law professor Fred Schauer pointed out that the debate surrounding anti-SLAPP laws is not the central issue when it comes to Depp versus Heard, since both sides have deep pockets. He couldn’t say if that influenced the decision to take the case to Virginia in the first place.

“Attorney fees are hardly an issue for people as wealthy as those involved in this case,” Schauer wrote in an email. “The real problem is simply that, by current First Amendment-inspired standards, public figures can only win a libel suit if they can show with ‘compelling clarity’ that what was said about them was false and that the person who said it knew. it was wrong when they said it, or at least they actually suspected it was wrong. And it’s really very difficult to prove.

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