Depp-Heard Seems Like a Civil Liberties Disaster to Me

I have gone back and forth on what to say here for some time. I think it’s a profoundly ugly situation, I think it’s clear that both parties did things that were technically abusive to each other, and I also think that few relationships would possibly come out looking good if they were pulled apart and publicly analyzed like this. (I think the fact that this trial was publicly broadcast is so toxic and totally contrary to justice, with almost no public-interest justification.) Amber Heard’s recorded mockery of the idea that a man could be a domestic violence victim is very ugly and precisely the sort of thing committed feminists should be condemning. I also think the evidence suggests that she acted with physical violence towards Depp and treated him in a frequently ugly manner. I would not want to be friends with Amber Heard, and I think that you can make the case that the initial hit to Johnny Depp’s reputation was unjust. (Edit: I should not have failed to point out that there is also meaningful evidence that Depp was abusive to Heard, physically and emotionally.)

However.

I need to go on record in saying that this whole affair could have really ugly consequences for free expression. I think people - not victims, which is a term that begs the question and a class to which liberals have attached unhealthy baggage - I think people should have the right to publicly share their version of controversial events even in those cases where the factual accuracy of their version of those events is in doubt. I think the inevitable scrum of memory and self-interested perspectives makes it impossible for any of us to have perfect understanding of our own actions or what exactly happened in emotionally-charged situations. And I think the only way to resolve those factual disputes is for each party to simply share their best version of events, knowing that the other party will have the opportunity to do the same, and interested observers will have to sort out their version of the truth. Heavyhanded defamation lawsuits with multimillion-dollar judgments risk creating a powerful chilling effect that could prevent anyone (again, not just victims) from freely and forcefully telling their version of the truth in a world where we will never all agree on basic facts. I have no fucking idea why the ACLU was involved, but Heard’s WaPo essay should not have been subject to a vast fine like the one the jury handed down, and I disagree with the decision. For the record I also don’t think Depp (through his lawyer) should have been sued for defamation either.

Look, in a free society there are always tradeoffs. I understand that if you’re in Johnny Depp’s shoes and your reputation is immensely important to your financial security you might cast around for ways to defend yourself if you think you’re being lied about. But society has to be able to look at a situation like this and say no, sorry, the cost to our democratic system is too great for you to be able to strongarm someone you disagree with this way. Amber Heard has a right to tell her story, and Johnny Depp has a right to tell his, and while trying to use the courts to obstruct those rights might be an understandable instinct on both of their parts, society’s interest is in saying no. This is why the legal system exists, not merely to secure the interests of motivated individuals but to stop those motivated individuals when the potential costs to the system are too great. So I’m very worried about where this goes. And it should go without saying that regular people will never have the high-priced lawyers enjoyed by Johnny Depp in this case, so the inequality of access to the system is vast.

There’s a whole other set of questions here about MeToo, and I think you can look at this case as good evidence that trying sexual offenses in the media was always a shortsighted and inherently-flawed approach. Certainly the “#believeallwomen” standard is farcical and totally contrary to the most basic conceptions of the right to the accused. Perhaps if Heard had not immediately been believed by a scared and compliant media back when this first happened, then history wouldn’t have taken this course. I hope we move forward by adopting a more evenhanded approach that demands evidence for accusations and some sort of fair process for evaluating the truth, in part because we know that failing to do so contributes to this kind of backlash. There are some real injustices that happen when we try people in the court of public opinion, and those things are always floating in the background of a controversy like this.

But Amber Heard had a right to tell her version of the truth, Depp had no right to obstruct it, and the potential impact of this case on civil liberties seems very concerning to me. I’m distressed with this verdict, and I hope this isn’t the start of a trend.