In spring and summer 2022, there was persistent media coverage related to the defamation trial concerning Amber Heard’s statements about Johnny Depp – from live coverage of the trial itself to release of unsealed documents from the case.1 The overwhelming focus was on Heard’s testimony – that she lied on the stand,2 that she “has no shame,”3 that her tears during testimony were “horrible cry acting.”4 Many commentators have noted the potential effects of these critiques of Amber Heard: victims of domestic violence might be less willing to seek help,5 public backlash emphasizes the ways in which our society will find flaws in victims’ stories, and alleged victims who do not act in certain ways cannot be believed. So where does this leave victims of domestic violence and sexual assault who want to speak out against their assailants?
In many places, including Wisconsin, the risks of speaking out about abuse can result in victims feeling helpless. Law enforcement agencies6 and the court system7 often fail victims.
Social media platforms have been outlets for crime victims to share their stories and bring attention to abusers. This is especially so for victims who do not have celebrity access to the court of public opinion, are hesitant to report the crimes to authorities, or do not get the justice they are hoping for when they do report.
But what happens if a victim shares their story of abuse or sexual assault on social media and the perpetrator threatens them with a defamation lawsuit? In Wisconsin, the truth is an absolute defense to defamation claims, but what does that really mean for victims of domestic violence facing a defamation suit from their abuser? Even though victim status vests at the time of victimization,8 is the reality of a defamation lawsuit worth the risk? Each victim must grapple with the risk that a legal battle will result if they try to hold their abuser accountable through social media.
Though the Depp-Heard trial was an unusually high-profile case and thus not necessarily representative, the trial is a stark example of how a defamation case can be a long and drawn-out process.9 The process can be worse still for a victim who has fewer financial resources than an abuser who can afford to hire attorneys to take the case to trial. Without the constitutional and statutory protections to privacy and dignity afforded victims in the criminal court system,10 victims are exposed to invasive civil proceedings. The financial resources to protect a victim accused of defamation often are limited; domestic violence and sexual assault touch people of all socioeconomic classes, and most victims are not celebrities with deep pockets.
Wisconsin Defamation Law
To fully explore the effect of a defamation suit on victims of abuse and sexual assault, understanding a defamation claim in Wisconsin is a logical starting point. The essential elements of a defamation action are:
A false statement,
Communication of the statement to a third party (that is, someone other than the person who allegedly was defamed), and
A tendency by the statement to harm a person’s reputation.11
Some statements are privileged from suit. For example, statements to law enforcement officers are privileged and cannot be the basis of a defamation claim.
Wisconsin law requires that for a plaintiff to be successful in a defamation claim, the statement complained of must be false. When the false statement is a part of other communications or publications, a plaintiff need not show that every statement is false, only that the statement at issue is false.
Although Wisconsin recognizes the truth as the ultimate defense to a defamation claim, the reality is that the victim’s opportunity to present this defense may come down to trial, if they are not able to provide sufficient evidence to dispute the claim in their answer to a filed suit. Regardless, the prospect of facing a lawsuit can often be overwhelming to victims, who might receive a letter threatening suit if they do not remove a video or post from social media. For victims whose cases proceed to trial, the financial burden of hiring defense counsel could be immense, or victims might have to represent themselves at trial.
If a victim posts on social media about an assault, that post will be considered a communication to a third party, satisfying the second element of a defamation claim in Wisconsin. Wisconsin recognizes both libel (written) and slander (oral, spoken) as communication of the “false” statement to a third party.12
Increasingly, because of the large and growing use of social media, electronic written communications, and other forms of “self-publication,” defamation cases concern libel. Some forms of online communication, such as Snapchat messages and other timed-deletion posts, do not constitute publication and would need to be treated as slander rather than libel by the person who allegedly is defamed.13 Whether a victim shares their story of abuse or sexual assault in a Facebook post or a TikTok video, their use of social media likely would be considered a statement to a third party to meet that element of a defamation claim.
Typically, if a victim uses social media to refer to a perpetrator of sexual assault or abuse, the damage to the perpetrator’s reputation is presumed.14 It is worth noting, however, that Wisconsin case law on this topic is dated and might not hold up to current standards regarding use of social media and similar communications, which have changed the way claims play out.
Defamation Involving a Public Figure. Plaintiffs in defamation cases who are public figures must meet a higher burden. A person can be a public figure in one of two ways: by generally being a well-known person, such as an elected official or celebrity; or by becoming a “limited public figure” by being drawn or thrust or by inserting themselves into a public controversy. An individual can become a public figure through no direct, personal action; one does not need to have “thrust oneself into the controversy” to be considered a limited public figure for the purposes of defamation.15 Regardless, a plaintiff who is a public figure must prove that the person making the allegedly defamatory statements acted with malice.
As such, an attorney working with a victim needs to consider how the burden of proof for the plaintiff changes if the plaintiff is found to be a public figure or a limited public figure. Crucially, the victim-defendant could seek summary judgment early in the case if the victim-defendant successfully shows that a public-figure or limited-public-figure plaintiff did not provide proof of actual malice in the victim’s actions.16 This could save the victim-defendant crucial time and resources in getting the case dismissed long before discovery and trial would otherwise occur.
Defamation Suits’ Effects on Victims
Defamation suits against victims carry both direct and collateral consequences for the persons accused of engaging in defamation. A successful defamation suit likely carries a financial penalty for the individual found to have defamed the plaintiff. An unsuccessful suit might not be significantly easier on the victim. The cost of defending the suit can be tremendous, and the victim might be dealing with other expenses from the abuse or sexual assault – moving to a different residence, a loss of employment, increased medical expenses, and so on.17
In addition to the financial effects, the claim of defamation requires that the victim of abuse or sexual assault share very intimate details to defend against the suit and maintain credibility or be branded a liar. This is especially concerning for victims who do not fit the stereotypical image of a victim because the less stereotypical victim may struggle to find broad enough supports to overcome the toll a very vocal online trolling takes on people.18
People of all ages, races, genders, and personalities might become victims of abuse or sexual assault. Considering who might be a victim requires acknowledging that not all abuse is physical or obvious, though the invisible damage is no less traumatic for the victims. Often, people who allege they have been defamed highlight the less than perfect side of the victims, such as those victims who might have acted out against their abusers during the relationship.19
Some victims also engage in behavior that jurors have difficulty empathizing with; a common example is a sexual assault victim who is described as having “asked for it” or who has been labeled sexually promiscuous.20 Whatever the specific circumstances, a victim might choose to create social media content to warn other people or to tell their story and find vindication outside the criminal justice system. The victim then opens themselves to the scrutiny of being an imperfect victim.
For victims whose cases proceed to trial, the financial burden of hiring defense counsel could be immense, or victims might have to represent themselves at trial.
“Imperfect” Victims. An “imperfect victim” is anyone who does not fit the stereotypical picture of an abused individual.21 Imperfect victims tend to be targeted more by members of the public than their more traditional counterparts, and imperfect victims are thus further deterred from reporting to law enforcement agencies or speaking generally about their abuse – they face potentially higher costs, financially and psychologically. For example, Amber Heard’s perceived flaws and imperfections have been analyzed at a microscopic level and debated online. If that is happening to a conventionally attractive white woman celebrity, imagine what an imperfect victim without a privileged status might encounter. In their interactions with law enforcement officers, imperfect victims risk losing the protections of conditional privilege if their interactions are perceived as bad faith.22 The outlook for an imperfect victim is often bleak.
The dynamic between a perpetrator and a victim does not stop when the courtroom doors open for a trial.23 This means not only that victims might be further traumatized by the contact with the perpetrator through a defamation case but also that the way the individuals present themselves in the courtroom might be hard to understand for those outside the relationship, including the finder of fact. In some situations, the perpetrator continues to exert control and claims the victim is lying and the victim appears to be unstable, which could lead the jury and judge to question the truthfulness of the victim’s statements.24
It is important for all victims who want to make public statements about their experiences to be prepared for their “imperfections” to be a part of the discussion, especially when looking at the question of truth in a defamation context. For example, recently unsealed court documents from the Depp-Heard case reveal that Depp’s attorneys sought to introduce evidence of Heard’s past to seemingly attack her character and credibility, as if being an exotic dancer has any impact on a person’s ability to be truthful.25 The question of credibility is not only for jurors in the case; the jury of public opinion is loud and not bound by the rule of law. In many circumstances, victims are villainized, retraumatized, and treated as objects of entertainment, especially if the abuser is generally liked or well regarded.26
Protections for Victims
Although some victims have had success as litigants, the burdens of litigation fall disproportionately on them rather than on their assailants. Lawsuits can be expensive, lengthy, and confusing, especially if a victim does not have access to legal assistance.27 One way that states have been pushing against retaliatory filings is through the creations of anti-SLAPP (strategic litigation against public participation) laws. These laws give victims civil immunity and stop the invasive discovery process until merit can be established for the claims themselves.28 Anti-SLAPP laws are an attempt to prevent frivolous claims, which might chill free speech.
In 1992, California passed an anti-SLAPP law, designed to “encourage continued participation in matters of public significance” and constructed to be interpreted broadly. California’s law protects conduct based on its interest to the public29 using a two-prong test. First, the protected-speech prong requires that a defendant must make a showing that their conduct arises “in furtherance of the person’s right of petition or free speech … in connection with public issue.”30 Second, a plaintiff must show that their claim has merit, and that their claim is likely to prevail.31
This two-prong test may be a persuasive argument when defending against a defamation suit, but Wisconsin courts have not adopted it. As helpful for victims as anti-SLAPP laws would be, Wisconsin does not have any such laws and victims might have to prove they are being truthful because society often errs on the side of victim-blaming.
In addition to anti-SLAAP protections, some victims have attempted to use the law of defamation on the offense, against assailants who defame them in their public denials of wrongdoing.32 However, few victims bring these types of suits because of the expense of litigation. Additionally, victims may find themselves stymied in their attempts to bring defamation suits if a court concludes that they are a limited public figure by virtue of coming forward about their assault, especially if the assailant is a celebrity or locally well known;33 this would require the victim to prove that their assailant had actual malice in publicly denying wrongdoing against the victim’s claims.
In addition to the financial effects, the claim of defamation requires that the victim of abuse or sexual assault share very intimate details to defend against the suit and maintain credibility or be branded a liar.
Despite efforts to make the criminal justice system less traumatic for victims, defamation suits remain a viable way for people accused of abuse or sexual assault to influence reporting and dissuade victims from speaking about their experiences. Victims who communicate on social media about their abuse and assaults are not protected from scrutiny or victim-blaming; we as advocates can only try to guide them in understanding what it means for the truth to be a defense if they are threatened with a defamation suit by the perpetrator and to continue to believe and support victims who do speak out.
1 Documents unsealed in the summer of 2022 led to a wave of support for Amber Heard, but the damage done to victims cannot be undone. As such, the article focuses on the negative implications of the initial response to Amber Heard’s testimony. See Kalhan Rosenblatt & Kat Tenbarge, New Documents Trigger Fresh Online Battle Between Amber Heard and Johnny Depp Fans, NBC News (Aug. 1, 2022), www.nbcnews.com/pop-culture/pop-culture-news/twitter-users-rally-amber-heard-unsealed-documents-trial-ex-johnny-dep-rcna41022.
In this article, gender-neutral pronouns are used where possible to reflect that anyone can be a victim of abuse.
2 Alexa, (@cbatogicename), TikTok (May 26, 2022), www.tiktok.com/@cbatogivename/video/7102179619146632454?is_copy_url=1&is_from_webapp=v1&q=depp heard&t=1658757563767.
3 (@trylikaa), TikTok (May 16, 2022), www.tiktok.com/@trylikaa/video/7098430653817048325?is_from_webapp=1&sender_device=pc&web_id=7124308565650196014.
4 Samantha, (@samansthay99), TikTok, (May 4, 2022), www.tiktok.com/@samanthay99/video/7094041047554198827?is_from_webapp=1&sender_device=pc&web_id=7124308565650196014.
5 See Mary Claire Dale & Jocelyn Noveck, Depp-Heard Trial: Advocates Fear Chilling Effect on Accusers, AP News (June 3, 2022), https://apnews.com/article/bill-cosby-johnny-depp-amber-heard-entertainment-politics-c105463a8b87f54d2ce19a9cd772a5d1; Jessica Winter, The Johnny Depp-Amber Heard Verdict is Chilling, The New Yorker (June 2, 2022), www.newyorker.com/culture/cultural-comment/the-depp-heard-verdict-is-chilling (behind paywall for some readers); Andrew Limbong, The Depp Verdict Could Bring a Chilling Effect for Domestic Abuse Survivors, NPR (June 2, 2022), www.npr.org/2022/06/02/1102621479/the-depp-verdict-could-bring-a-chilling-effect-for-domestic-abuse-survivors; Holly Honderich, Could Toxic Depp-Heard Case Have Chilling Effect on Accusers?, BBC News (June 3, 2022), www.bbc.com/news/world-us-canada-61664982; Kalhan Rosenblatt, Amber Heard-Johnny Depp Trial Memes Could Have ‘A Chilling Effect’ on Victims of Domestic Abuse, Expert Says, NBC News (May 15, 2022), www.nbcnews.com/pop-culture/pop-culture-news/amber-heard-johnny-depp-trial-memes-chilling-effect-victims-domestic-a-rcna28572.
6 Kathryn E. Litchman, Punishing the Protectors: The Illinois Domestic Violence Act Remedy for Victims of Domestic Violence against Police Misconduct, 38 Loyola U. Chi. L.J. 765 (2007), https://lawecommons.luc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1150&context=luclj.
7 Megan O’Matz, He Beat Her Repeatedly. Family Court Tried to Give Him Joint Custody of Their Children, ProPublica (Sept. 16, 2021), www.propublica.org/article/he-beat-her-repeatedly-family-court-tried-to-give-him-joint-custody-of-their-children.
8 Wis. Const. art. I, § 9m(2).
9 This is a notable difference from the protections in a criminal case, which allow victims to refuse to be deposed by the accused. Wis. Const. art. I, § 9m(2)(L).
10 In 2020, Wisconsin voters approved the Marsy’s Law crime victims rights amendment to the Wisconsin Constitution. The amendment enumerates victims’ rights in article I, section 9m. Similar rights are outlined in Wis. Stat. § 950.04.
11 “In a common-law defamation cause of action that does not involve a public figure, there are only three elements: (1) a false statement; (2) communicated by speech, conduct or in writing to a person other than the person defamed; and, (3) the communication is unprivileged and tends to harm one’s reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her.” Storms v. Action Wis. Inc., 2008 WI 56, ¶ 37, 309 Wis. 2d 704, 750 N.W.2d 739 (quoting Torgerson v. Journal/Sentinel Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472 (1997)); see also Wis. JI-Civil 2500.
12 See Freer v. M & I Marshall & Ilsley Corp., 2004 WI App 201, ¶ 9, 276 Wis. 2d 721, 688 N.W.2d 756 (“slander” is distinguished from “libel” because libel applies to written statements and slander applies to oral statements).
13 “The wide area of dissemination, the fact that a record of the publication is made with some substantial degree of permanence and the deliberation and premeditation of the defamer are important factors for the court to consider in determining whether a particular communication is to be treated as a libel rather than a slander.” Restatement (Second) of Torts § 568 (1977). In an era when many people communicate via text messages, Facebook messages, or snapchats as substitutes for oral communication, perhaps there is a compelling argument for treating them as slander, rather than libel, and requiring pleading of special damages.
14 Freer, 2004 WI App 201, ¶ 11, 276 Wis. 2d 721.
15 SeeBauer v. Murphy, 191 Wis. 2d 517, 530 N.W.2d 1 (Ct. App. 1995).
16 Quite confusingly, this analysis overlaps with the question of whether the communication is actionable if it is unpublished, that is, if categorized as slander. See Freer, 2004 WI App 201, ¶ 11-12, 276 Wis. 2d 721. The dissent and concurrence in Freer opined that these categories are outdated, but the majority concluded they were “universal,” citing the Restatement (Second) of Torts. Id. One might question whether the same court would have considered the categories to be outdated if the plaintiff were a man to whom unchastity had been imputed. The animating principle here is that for these four categories, the communication is inherently defamatory and nothing other than the communication itself is required to render it defamatory or “inherently defamatory during the period when this law solidified.”
17 Gertz v. Robert Welch Inc., 418 U.S. 323, 345 (1974).
18 Under libel law, “public figures” who must prove malice include individuals who by being drawn into or interjecting themselves into a public controversy become public figures for a limited purpose because of involvement in the particular controversy. Public-figure status can be created without purposeful or voluntary conduct by the individual involved. Erdmann v. SF Broad. of Green Bay Inc., 229 Wis. 2d 156, 599 N.W.2d 1 (Ct. App. 1999).There are two kinds of public figures: public figures for all purposes and public figures for a limited purpose. Like public officials, public figures for all purposes must prove actual malice in all circumstances. Limited-purpose public figures, on the other hand, are otherwise private individuals who have a role in a specific public controversy. Limited-purpose public figures are required to prove actual malice only when their role in the controversy is “more than trivial or tangential” and the defamation is germane to their participation in the controversy. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649.
19 Hayley Forrestal & Christina Zuba, What Sexual Assault Survivors Should Know About Defamation, Chicago Alliance Against Sexual Exploitation (June 7, 2022), www.caase.org/sexual-assault-survivors-defamation/; Evita March, New Research Shows Trolls Don’t Just Enjoy Hurting Others, They Also Feel Good About Themselves, The Conversation (Sept. 16, 2020), https://theconversation.com/new-research-shows-trolls-dont-just-enjoy-hurting-others-they-also-feel-good-about-themselves-145931#:~:text=Trolling can cause significant harm,in some cases, even suicide; Dynamics of Abuse, National Coalition Against Domestic Violence, https://ncadv.org/dynamics-of-abuse; Olivia Waxman, ‘He Could Have Killed Me.’ Lorena Bobbitt on Domestic Abuse and What She Wants You To Know About Her Case 25 Years Later, TIME (June 22, 2018), https://time.com/5317979/lorena-bobbitt-today-anniversary-interview/ (behind paywall for some readers).
20 Zoe Williams, Sex, Power and Humiliation: Eight Lessons Women Learned from Monica Lewinsky’s Shaming, Guardian (Sept. 30, 2021), www.theguardian.com/lifeandstyle/2021/sep/30/sex-power-and-humiliation-eight-lessons-women-learned-from-monica-lewinskys-shaming; Nesrine Malik, Anita Hill on Sexual Harassment and Survival: ‘You Have to Think: What Is My Life For?’, Guardian (Sept. 28, 2021), www.theguardian.com/lifeandstyle/2021/sep/28/anita-hill-on-sexual-harassment-and-survival-you-have-to-think-what-is-my-life-for.
21 Christine Anchan, Protecting the Imperfect Victim: Expanding “Safe Harbors” to Adult Victims of Sex Trafficking, 23 Wm. & Mary J. Women & L. 117, 131 (2016), https://scholarship.law.wm.edu/wmjowl/vol23/iss1/7.
22 Bergman v. Hupy, 64 Wis. 2d 747, 751-52, 221 N.W.2d 898 (1974); Lisowski v. Chenenoff, 37 Wis. 2d 610, 627-28, 155 N.W.2d 619 (1968) (“The general rule is that communications made to law enforcement officers for the purpose of bringing a criminal to justice fall within the ambit of conditionally privileged statements, provided, however, that the damaging remarks are made in good faith without malice.”); Otten v. Schutt, 15 Wis. 2d 497, 503, 113 N.W.2d 152 (1962) (finding that statements to police officers were not privileged when purpose of statements was not apprehension or punishment of one who had committed a crime).
23 Understanding the Power and Control Wheel, Domestic Abuse Intervention Programs, www.theduluthmodel.org/wheels/faqs-about-the-wheels/; Dynamics of Abuse, Nat’l Coal. Against Domestic Violence, https://ncadv.org/dynamics-of-abuse; Amanda Rabe & Megan Lorena Sprecher, Representing Domestic Abuse Survivors, 91 Wis. Law. 1 (2018); www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=91&Issue=1&ArticleID=26085.
24 Hayley Forrestal & Christina Zuba, What Sexual Assault Survivors Should Know About Defamation, Chicago Alliance Against Sexual Exploitation, (June 7, 2022), https://www.caase.org/sexual-assault-survivors-defamation/.
25 Rebecca Rosenberg, Unsealed Depp v. Heard Court Docs Reveal ‘Aquaman’ Actress was ‘Exotic Dancer, Fox News (Aug. 1, 2022), www.foxnews.com/entertainment/unsealed-depp-v-heard-court-docs-reveal-aquaman-actress-exotic-dancer.
26 Martha Gill, #MeToo Is Over if We Don’t Listen to ‘Imperfect Victims’ like Amber Heard, Guardian (May 22, 2022), www.theguardian.com/commentisfree/2022/may/22/metoo-is-over-if-we-dont-listen-to-imperfect-victims-like-amber-heard.
27 Antoinette Bonsignore, Domestic Violence Survivors Battle Within the Courts: Confronting Retaliatory Litigation, Truthout (June 22, 2012), https://truthout.org/articles/domestic-violence-survivors-battle-within-the-courts-confronting-retaliatory-litigation/.
29 Andy Black, Anti-Anti-SLAPP: How the Judiciary’s Narrowing of California’s Anti-SLAPP Law Could Thwart Legislative Intent, 94 S. Cal. L. Rev. Postscript 144, 147 (2021).
30 Cal. Code Civ. P. § 425.16(b)(1).
32 See, e.g., Dickinson v. Cosby, 37 Cal. App. 5th 1138, 250 Cal. Rptr. 3d 350 (2019).
33 See,e.g., McKee v. Cosby, 874 F.3d 54 (1st Cir. 2017).
» Cite this article: 95 Wis. Law. 16-21 (December 2022).