Asked on CBS about losing Depp v Heard, Amber Heard’s lawyer, Elaine Bredehoft, put much of the blame on the courtroom cameras and the brutal atmosphere they generated. “It was like a Roman colosseum.”
Actually, for the squeamish, it was much nicer than that. Those of us watching Depp’s lawyer, Camille Vasquez, dismember Heard could claim to be acting in a spirit of sober inquiry and debate, motivated purely by the wish to advance understanding of US legal procedures. For instance, I learned, between gawping at Heard’s ornate plaits and Vasquez’s white costumes, that it’s legal in the state of Virginia for cameras to livestream a celebrity witness offering excruciating testimony about sexual abuse, yards from her alleged assailant.
Another lesson: the arid findings of two UK courts cannot compete, in a US one, with lashings of Technicolor “Darvo” (“deny, attack, and reverse victim and offender”, a common defence tactic in sexual assault and domestic violence trials). And another: it does not conflict with the administration of US justice, in particular the principle that people are equal before the law, if a celebrity witness knows millions of viewers are scrutinising her face and body language while opposition experts speculate on the consequences of her alleged personality disorder.
Did Heard really cry in court or not? Diligent students recalled that her acting coach testified that Heard struggled “acting wise” to produce real tears when performing. On the other hand, non-acting wise – this point seems not to have registered so widely – the coach often saw Heard in real tears.
Now, courtesy of the intensive Heard-Depp course in judicial fairness, we have a good understanding of how such commitment to total courtroom transparency is likely to translate, once online supporters are engaged, into a surge of woman-hating abuse and memes. Of this, Bredehoft said, the jury in this case must have been aware. “They have weekends, they have families, they have social media,” she said.
There was also a 10-day break allowing for further absorption of tribal online feeling before jurors returned to a courtroom besieged by #justiceforJohnny supporters: “How could they not have been influenced?” Bredehoft was duly pilloried for sour grapes, on social media.
In fact, she’d seen it coming. In February, arguing against live broadcasting, Bredehoft prophesied how existing “anti-Amber networks” would use resulting videos. “What they’ll do is take anything that’s unfavourable – a look,” she said. “They’ll take out of context a statement and play it over and over and over and over again.” This is precisely what has happened, as if Heard’s inconsistencies (on charitable donations) were not, without added monstering, enough. Depp’s lawyers, to judge by his fans’ previous efforts during his London libel suit, had more to gain from the harvesting of such material. “Mr Depp believes in transparency,” his lawyer said. The judge, Penney Azcarate, whose sole decision it was to livestream or not, concluded that the public did need more, on this occasion, than old school reporting and illustrations: “I don’t see any good cause not to do it.”
Maybe the resulting festival of misogyny would not have been predictable to any judge unfamiliar with social media, nor with the tendencies of the manosphere, nor with the escalating ambitions of courtroom broadcasters. It’s harder to understand why a judge would not understand the specific risks of live broadcasting a case involving allegations of sexual violence, along with its potentially inhibiting impact on future witnesses. A Stanford Law School lawyer, Professor Michele Dauber, has called Azcarate’s decision “the single worst decision I can think of in the context of intimate partner violence and sexual violence in recent history”.
The deterrent effect on female victims, once reporting a crime doubles as an audition for courtroom broadcasting, is only one way in which compelled public performance actually conflicts with justice.
With Depp v Heard considered broadcastable, restraint in other courts can be portrayed, as it mistakenly was by conspiracy-minded elements of the Ghislaine Maxwell audience , as a sinister cover-up. It confers unwarranted influence on editors, on the courtroom broadcasters whose profits soared as their exposure of Heard elicited more online mockery, more clicks, more histrionic tweets depicting the case as a duel.
Court TV: “Do YOU think there is going to be a clear winner in the end??” With the help of Heard, who says she is unable to pay the millions she owes in damages, Court TV doubled its daytime ratings. UK viewers discovered a new and cheaper alternative to Netflix.
When British broadcasters last agitated for televised courtrooms, it was on the then plausible basis that this innovation – as well as providing cheap content – would educate viewers and improve openness. Writing to the prime minister in 2012, representatives of the BBC, ITN and Sky said: “For too long the UK has lagged behind much of the rest of the world on open justice. The time has come for us to catch up.” Before online death threats and abusive TikTok memes, the main admitted risk of court broadcasting was usually its exploitation by certain defendants, such as the mass murderer Anders Behring Breivik. But presciently a spokesman for Victim Support argued that, while the justice system needed to be more transparent, “this does not mean that court cases should become a new form of reality TV”.
Even if the transformation of one celebrity defamation trial, via live streaming, into the sustained, one-sided demonising of its female participant does not amount to a case for restriction, Depp v Heard casts serious doubt on broadcasters’ claims about enhanced confidence and transparency. How is justice served by a courtroom becoming complicit with the values of mass entertainment? If anything, the live-streaming, with the associated character assassination, has added to uncertainty, for many spectators at this circus, about the relative importance of legal argument as opposed to the popularity of the combatants.
As for fairness, is it fair to force civilians, even actor-civilians, to perform for justice? Either way, what a boon for her adversaries that Amber Heard never got the hang of fake crying.
• Catherine Bennett is an Observer columnist
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