The Johnny Depp v. Amber Heard trial dominated the internet in part because it was livestreamed.
"I don't see any good cause not to do it," the judge said when deciding to allow cameras in.
Depp fought for cameras to let the public "see everything — the good, the bad, the ugly," a source told Insider.
For six weeks, the trial between Johnny Depp and Amber Heard dominated the internet.
It wasn't the first trial to be livestreamed, and certainly not the first to capture the world's attention. Most court watchers will point to the OJ Simpson trial, broadcast on television, as a case that transformed the way Americans followed high-profile trials.
But the defamation trial between the two actors, held in Fairfax County, Virginia, had the perfect storm of factors that drew in the public, inviting watchers to play armchair detective and offering a rare unvarnished peek into the lifestyles of the rich and famous.
The day-to-day testimony appeared to permeate social media in a way that the recent trials against Derek Chauvin and Kyle Rittenhouse never quite reached. Law&Crime, which streamed the trial on YouTube, saw its viewership increase 50-fold during the trial and tracked more than 3.5 million live concurrent viewers during the verdict alone, according to the outlet.
The wall-to-wall livestream of the case raised thorny ethical questions. Both Depp and Heard alleged they were victims of domestic violence at the hands of the other. Heard also claimed Depp sexually assaulted her. Each side also spilled out details about their finances, charity donations (or lack thereof), forced each others' therapists to testify, and had dueling narratives about poop found in their marital bed. The jury ultimately upheld all of Depp's claims and gave Heard only a minor victory.
It's one thing for them to testify about their experiences before a jury of their peers and a few dozen people watching in the courtroom gallery. Should they have to do it on camera, where people can gape on YouTube and remix their testimony into memes on TikTok?
Virginia law gives judges the broad authority to determine the public's access to a trial. In deciding whether a case like this should be livestreamed, a judge ought to weigh the presumption of the public's right to transparency, the nature of the case itself, how it would affect the court's legitimacy in the public's eyes, and how those extra eyeballs might affect the trial proceedings, legal experts told Insider.
"Sometimes the public nature of a trial changes the behavior of the people in the trial," Halim Dhanidina, a former Los Angeles judge, told Insider. "Whether that's the judge, whether that's the witnesses because they know they're being livestreamed — it may alter how they say what they say, and maybe even what they say."
Judge Penney Azcarate, who's overseeing the case, opted for maximum accessibility. According to Variety, in a court hearing before the trial, she worried that forbidding cameras would lead to even more reporters showing up at the courthouse, potentially creating hazardous conditions.
"I don't see any good cause not to do it," Azcarate said, according to Variety.
The result, though consistent with public access laws, was "extraordinary," according to Jan Jacobowitz, a legal ethics advisor.
"Having it all on YouTube, a livestream of the whole thing, does seem kind of extraordinary," she said. "I've never seen anything like this before. It strikes me as more expansive than anything I've ever seen."
Depp asked to turn the cameras on. Heard found it 'humiliating.'
It was Depp's attorneys who asked Azcarate to permit the cameras in the courtroom in the first place. Benjamin Chew, one of his lawyers, argued in a February hearing that, since Heard's claims about Depp were made so publicly, the Virginia trial should also be as public as possible, according to Variety.
Depp personally believed Heard shouldn't be able to "use confidentiality as a shield," a person close to him told Insider in an interview before the verdict.
"He's already lost his career. He's lost his reputation. And as he said, 'no matter what happens in this trial, there are gonna be people who will always think that he's a wife beater,'" the person told Insider. "And so I think that informed his thinking here, which is, maybe he loses, but this is a way at least he gets his story out."
Depp brought the lawsuit against Heard in 2019, alleging she defamed him by publishing an op-ed in the Washington Post where she described herself as a victim of domestic violence. Though the op-ed didn't use Depp's name, Depp's lawsuit argued it was a clear reference to their relationship, which ended in divorce in 2016. Around the same time Heard filed for divorce, she also filed for a restraining order that included photos of herself with what appeared to be a bruised face.
According to Depp, Heard staged occasions where it seemed like Depp physically abused her. His lawsuit argued that Heard physically and verbally abused him in the relationship, rather than the other way around.
Heard denied the claims and countersued. Depp had indeed physically assaulted her, she said, delineating around a dozen specific occasions in court filings. Her counterclaim alleged that Depp defamed her through one of his lawyers, who claimed her injuries were an elaborate hoax.
In the United Kingdom, Depp previously brought a similar defamation case against British tabloid The Sun, which called him a "wife beater." Depp and Heard both testified for that case, which received substantial media attention. But it was not streamed online.
He ultimately lost that case, with the judge deciding Heard's allegations of abuse were "substantially true."
The stakes for Depp became higher after the UK case. Another person close to the actor told Insider before the verdict that the "Pirates of the Caribbean" actor wanted the Virginia case to be livestreamed to show the public he had nothing to hide.
"I think for him it was, let the public, let the jury, let the judge see everything — the good, the bad, the ugly — and let them decide who's telling the truth here and who's not," the person said. "And I think it speaks volumes of him and his character."
The stakes rose for Heard, too, as the trial became for many a referendum on how female sexual misconduct accusers should be treated in the public eye. Elaine Bredehoft, one of Heard's attorneys, made an argument at the February hearing that turned out to be prescient: She suggested Depp's army of online fans would use the camera feed to harass Heard.
"They'll take out of context a statement, and play it over and over and over and over again," Bredehoft said, according to Variety.
In an order dated February 25, Azcarate finalized her decision and said the cameras could come in. She later established a pool camera system for the courtroom, which was managed by CourtTV. A company called LiveU worked with CourtTV to make livestreams available for media outlets willing to pay a few thousand dollars – hence all those different streams on YouTube.
The proliferation of footage has led to a gold rush among YouTubers and meme-makers on TikTok, all eager to get a piece of the pro-Depp online sentiment. Viewers quickly joined one side, leading to a dearth of pro-Heard content. Many of those who did promote Heard saw their followers drop, according to The Washington Post. The memes and video commentary accelerated Depp's effort to bring the public to his side. He thanked his fans in a statement issued after the verdict.
"I am, and have been, overwhelmed by the outpouring of love and the colossal support and kindness from around the world," Depp said. "I hope that my quest to have the truth be told will have helped others, men or women, who have found themselves in my situation, and that those supporting them never give up."
For Heard, the livestream had the opposite effect. In her own testimony, in the final days of the case, she described her experience testifying in front of the world as "humiliating" and "agonizing."
"The harassment, the humiliation, the campaign against me that's echoed every single day on social media and now in cameras in this room," Heard said. "Every single day, I have to relive the trauma. My hands shake. I scream when I wake up."
"People want to kill me and they tell me so, every day," she said later in her testimony. "People want to put my baby in the microwave. They tell me that."
It's up to the court to decide how public a case should be
Under the law, court proceedings are supposed to be public. Just how public they are depends on the court.
For most of its history, Supreme Court hearings could only be attended in-person in Washington, DC. That changed only during the COVID-19 pandemic, when it made audio livestreams available.
Federal courts do not allow photography and are stingy when it comes to bringing in electronic devices. Other courts may also make distinctions between criminal and civil cases, and the precise scope of public accessibility can depend on the whims of the judge. Since the case between Depp v. Heard was a civil rather than criminal one, Heard wasn't able to successfully make the argument that she had the legal status of a "victim" to limit public access.
According to Dhanidina, judges weigh the presumption of public access along with any risk it may pose to a fair proceeding. In a case like Depp v. Heard, there's a risk that witnesses and lawyers could be putting on a performance instead of focusing on the evidence, he said.
"For my generation, OJ is the trial that we think about as being the one that got a lot of public attention and was actually broadcast," Dhanidina, now an attorney at Werksman Jackson & Quinn LLP, told Insider. "Some of the witnesses, at least, felt like they were performing. Is that, then, a true version of the evidence that you're giving to the jury?"
Judges also take victims into consideration. In some cases, they may use a "Jane Doe" or "John Doe" pseudonym to protect their privacy. For some victims in the trials of Ghislaine Maxwell and R. Kelly, for instance, even court illustrators had to blur their faces to conform with the judge's order to preserve their anonymity. But since the trial between Depp and Heard was a criminal rather than a civil case, Heard's lawyers had few options to limit public access.
It's possible the mass attention warped how jurors, whose identities are under seal, thought about the case as well. Azcarate instructed them not to pay attention to anything but the evidence in the case, but it's hard to conceive that they weren't aware of the intense scrutiny over the course of six weeks, which included a one-week break. Depp's fans crowded the courtroom gallery and cheered him outside every single day. Millions of people watching the livestreams were able to see exactly the same evidence they saw and come to their own conclusions.
Another concern a judge might assess, according to Dhanidina, is the public's faith in the court. The core of the right to public access is to allow people to "see exactly what goes on in our courts," he said, and more transparency can help.
"We live in a time when public confidence in our institutions is not always as strong as it should be. And a lot of that has to do with misinformation or even disinformation and having access to the courts," he told Insider. "So anyone with the appropriate technology can see what's going on in any given courtroom, I think, is a good thing for society, notwithstanding some of these other potentially troubling effects."
What about when that public access paves the way for derisive comments about an alleged domestic violence victim? That's a bigger issue, Dhanidina said.
"It becomes not necessarily a question of the justice system, but really a question of the decency of the community," he said. "Which is something that we all have to take some ownership of."
Read the original article on Insider