Sarah Palin and Johnny Depp Star in the Drama of Defamation Law

Libel suits by the tabloid titans come to a head in two different courts, raising the question of whether all public figures are equal under the law.

AP/Craig Hudson
Actor Johnny Depp departs the Fairfax County Courthouse May 27, 2022. AP/Craig Hudson

Are all public figures equal under the law? Or at least the public figures who file claims for libel in the era of the Supreme Court precedent known as New York Times v. Sullivan? 

The question arises because of two cases of public figures who sued for libel and today met startlingly different outcomes. One public figure, Governor Palin of Alaska, endeavored to sue the Times but was snubbed by a federal district judge who rasped that she hadn’t come up with a “speck of evidence” to meet the “actual malice” standard demanded of public figures. 

The other, Johnny Depp, one of the most famous actors in America, just hours later won millions of spondulicks in a case against the ex-wife he accused of libeling him in the pages of the Washington Post in a piece ghostwritten by the American Civil Liberties Union.   

Ms. Palin’s battle against the Times, precipitated by the Gray Lady’s insinuation that one of her campaign fliers led to a massacre, suffered a setback as Judge Jed Rakoff denied the Alaskan’s request for a new trial due to that missing “speck.” 

A different outcome arrived in Northern Virginia. The Johnny Depp-Amber Heard trial, which transfixed the nation on television and TikTok, turned on that opinion essay in the Post in which Ms. Heard described herself as “a public figure representing domestic abuse.”

That was widely assumed to be a reference to her experience while married to Mr. Depp, who sued Ms. Heard in Fairfax County Circuit Court for $50 million. Mr. Depp’s labeling of her invocation of abuse “a hoax” prompted her own countersuit for $100 million.

A jury found both Mr. Depp and Ms. Heard liable for defamation, but awarded the “Pirates of the Caribbean” star $10 million in compensatory damages and $5 million in punitive damages, as opposed to just $2 million for Ms. Heard. 

This outcome was at odds with a 2020 verdict in England, where a judge found that a headline labeling Mr. Depp a “wife beater” was factually sound. 

Defamation, according to Supreme Court precedent, requires that the statement be both “substantially false” and made with “actual malice.” For public figures like Ms. Palin and Mr. Depp, proving “actual malice” requires showing that the party making the statement — the Times or Ms. Heard — knew the statement was false or was reckless in regard to its falsity.

It was on that point — a showing of “actual malice”— that Mr. Depp won and Ms. Palin lost. This standard for public figures was set in 1964 in the Supreme Court decision of New York Times v. Sullivan, which sought to protect the press by raising the bar for public figures to extract damages.

The decision, written by Justice William Brennan, articulated “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

“Actual malice” might, however, soon be consigned to the jurisprudential dustbin. In a dissent last summer, Justice Clarence Thomas approvingly quoted district judge Laurence Silbermann to the effect that the standard bears “no relation to the text, history, or structure of the Constitution.”

The next theater for Ms. Palin’s efforts could be the United States Court of Appeals for the Second Circuit, where she hopes to find more sympathetic ears than Judge Rakoff provided. If that fails to materialize, then her final redoubt will be the Supreme Court, which could find in the Alaskan an opportunity to revise the standard that Mr. Depp surmounted and Ms. Palin has not, yet. 

The New York Sun

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