The Washington Post was guarded from Johnny Depp’s defamation claim by a Supreme Court precedent—one that at least two current Justices hope to “reconsider.”
, would have been impossible to publish until all of the elements were conclusively proven. Public pressure to determine the conclusive truth through trials or congressional investigations frequently only builds because of initial, sometimes imperfect, press reports.
Of course, implicit in the actual-malice standard is the idea that, in some instances, public figures or officials may have their reputations harmed by false statements, and will not be able to successfully sue for damages. This, the court held, was part of the bargain of public service and celebrity. Public figures will rightfully be subject to tremendous scrutiny—the “uninhibited, robust, and wide-open” debate necessary to democracy, in Justice William J. Brennan’s words.
These protections, however, did not benefit Heard. Although Depp was required to show that Heard made the statements with actual malice, once the jury determined that the statements were false—that is, they believed Heard was lying about the abuse—the step to finding that she knew they were false when she made them was virtually automatic.
At least theoretically, then, the Heard decision should have little relevance for publishers, who will continue to enjoy the same protections they’ve had for over fifty years. But, as a practical matter, the trial was a graphic display of the possible consequences for individuals who make similar allegations. After this trial, sources whom journalists rely on to cover important stories of abuse may be less inclined to make allegations publicly, for fear of defamation suits from perpetrators.
More alarmingly for publishers, however, two current U.S. Supreme Court Justices, Clarence Thomas and Neil Gorsuch,
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