The Filming Dilemma: The Potential Speech Cost Presented by Camera Coverage of Defamation Cases

Missouri Law Review Missouri Law Review

Volume 88 Issue 3 Article 6

Summer 2023

The Filming Dilemma: The Potential Speech Cost Presented by The Filming Dilemma: The Potential Speech Cost Presented by

Camera Coverage of Defamation Cases Camera Coverage of Defamation Cases

Alexandra M. Gutierrez

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Alexandra M. Gutierrez,

The Filming Dilemma: The Potential Speech Cost Presented by Camera Coverage

of Defamation Cases

, 88 MO. L. REV. (2023)

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The Filming Dilemma: The Potential Speech

Cost Presented by Camera Coverage of

Defamation Cases

Alexandra M. Gutierrez

ABSTRACT

For the better part of the last century, journalists have used free-

press and free-speech principles to advocate for camera access to

newsworthy trials. But it was not until 2022 that news organizations

succeeded in broadcasting defamation proceedings, and—in the

process—gave libel litigants a novel opportunity to present their

stories both to jurors and to the public at large. Because news

organizations are themselves frequent targets of defamation lawsuits,

this development may not be a categorical good for the press. The

filming of defamation proceedings could provide motivated litigants

with one more incentive to sue real and perceived critics, insofar as it

could turn a lawsuit into a platform for publicity. This essay examines

this tension for the press, situating the Johnny Depp v. Amber Heard

trial and the Alex Jones damages trials within an environment where

anti-press litigants increasingly weaponize libel litigation against the

news organizations that cover them.

Associate, Williams & Connolly. My thanks to the editors of the Missouri Law

Review for their keen edits, my fellow Symposium participants for their thought-

provoking ideas, and Ned Levin and Emily Chertoff for their insightful comments and

support.

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TABLE OF CONTENTS

ABSTRACT 685

TABLE OF CONTENTS ................................................................................... 686

I. INTRODUCTION ......................................................................................... 687

II. PRESS ADVOCACY FOR CAMERAS IN COURTROOMS .............................. 691

III. THE WEAPONIZATION OF DEFAMATION LITIGATION ............................ 694

IV. THE FILMING OF DEFAMATION PROCEEDINGS ...................................... 702

A. Depp v. Heard .................................................................................. 704

B. The Alex Jones Damages Trials ...................................................... 707

V. CAMERAS AS A LITIGATION INCENTIVE TO DEFAMATION PLAINTIFFS .. 710

A. Ability To Connect with Supporters Directly ................................... 710

B. Ability To Inflict Reputational Harm on Defendant ........................ 710

C. Ability To Attract Publicity Generally ............................................. 711

D. Ability To Fundraise ........................................................................ 712

VI. CONCLUSION ......................................................................................... 713

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I. INTRODUCTION

In 1984, the freshly-launched Cable News Network (“CNN”) sought

to do something extraordinary: bring cameras into a courtroom to provide

nationwide live coverage of a defamation trial.

The case was

Westmoreland v. CBS Inc., and the newsworthiness of the trial was beyond

dispute.

General William C. Westmoreland, a four-star general and

former Army Chief of Staff, filed a $120 million lawsuit against CBS,

alleging the broadcast news network defamed him by reporting he had

distorted intelligence data to mislead the American people about the

prospects of winning the Vietnam War.

Due to the public interest in the

Westmoreland trial, and because all the litigants consented to the broadcast

of the proceedings, CNN deemed the case a worthy vehicle for challenging

the federal judiciary’s total bar against cameras in courtrooms.

Before Westmoreland, cameras had generally been absent from

courtrooms, as the American Bar Association (“ABA”) concluded in 1937

that the “broadcasting or televising of court proceedings” can “detract

from the essential dignity” of courtroom proceedings and should not be

permitted.

The ABA rooted its conclusion in the idea that cameras tended

to convert trials into media circuses, as had occurred when newsreel

companies descended on a 1935 trial for the kidnapping and murder of

pilot Charles Lindbergh’s child.

But the longstanding general prohibition

See Westmoreland v. CBS Inc., 596 F. Supp. 1166, 1167 (S.D.N.Y. 1984)

(denying petition by CNN “for permission to record and distribute live comprehensive

televised coverage” of trial), aff’d sub nom. 752 F.2d 16 (2d Cir. 1984).

See id. at 1169 (“[T]he subject matter of this trial is of the most serious public

importance.”).

See id.; see also Rudy Abramson, Westmoreland to Drop Libel Suit Against

CBS: General, Network to Make Joint Announcement Today on Ending of $120-

Million Legal Action, L.A. TIMES (Feb. 18, 1985),

https://www.latimes.com/archives/la-xpm-1985-02-18-mn-3110-story.html

[https://perma.cc/ZBJ6-2K22] (summarizing documentary).

Westmoreland, 596 F. Supp. at 1167 (describing CNN’s petition as seeking a

“experimental exception” to Canon 3 A(7) of the Code of Judicial Conduct for the

United States Courts and Local General Rule 7 of the Southern District of New York).

Kyle C. Kopko & Erin Krause, Shooting From the Hip: Concealed Cameras

in the United States Supreme Court, 99 JUDICATURE 60, 62, 67 (2015) (describing and

quoting Canon 35 of the ABA Code of Conduct, superseded by Canon 37(a)). The

ABA has since repealed its prohibition on cameras in the courtroom. Fred Barbash,

ABA Repeals its 1937 Canon Against Cameras in the Courtroom, WASH. POST (Aug.

12, 1982), https://www.washingtonpost.com/archive/politics/1982/08/12/aba-repeals-

its-1937-canon-against-cameras-in-the-courtroom/2418b074-dbe0-4aac-acf6-

ff0b6b71f5b4 [https://perma.cc/8TBY-YPAY].

Richard P. Lindsey, An Assessment of the Use of Cameras in State and Federal

Courts, 18 GA. L. REV. 389, 389–90 (1984) (summarizing trial of Bruno Hauptmann

and adoption of American Bar Association canon of judicial ethics discouraging use

of cameras in courtrooms).

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against cameras in the courtroom started to weaken by the time of the

Westmoreland defamation trial. The Supreme Court ruled just three years

earlier that the filming of a criminal trial was not categorically barred by

the Constitution, and the overwhelming majority of states had already

adopted rules allowing cameras in courtrooms under some circumstances.

With momentum on its side, CNN pressed its case that the allowance

of cameras in the courtroom had democratic upside. It argued that cameras

would not interfere with the administration of justice, and that there was a

strong interest in permitting the press to sit in as the eyes of the public by

allowing viewers at home to decide for themselves if CBS’s reporting on

General Westmoreland was true and fair.

Although CNN initially had

some persuasive success when the district court denied the petition “in

spirt of its merit,”

its arguments foundered before the Second Circuit. The

Second Circuit rejected CNN’s argument that both its own speech interests

and the public’s right to “see and hear a trial” trumped the Judicial Code

of Conduct.

The Second Circuit, however, allowed that federal courts

could change their rules to permit filming if they desired.

Even though CNN failed to gain access to the civil defamation trial,

the filming of high-profile criminal proceedings became more common in

the years following the Westmoreland decision, with front-page murder

trials becoming their own sort of television events. The trials of O.J.

Simpson, Casey Anthony, George Zimmermann, and Derek Chauvin each

received gavel-to-gavel coverage and drew an excess of ten million

viewers.

But until recently, there was no “must-see TV” equivalent for

See Westmoreland v. CBS Inc., 596 F. Supp. 1166, 1168 (S.D.N.Y. 1984),

aff’d sub nom. 752 F.2d 16 (2d Cir. 1984) (citing Chandler v. Florida, 449 U.S. 560

(1981)).

See Televising the CBS Trial, WASH. POST (Aug. 27, 1984),

https://www.washingtonpost.com/archive/local/1984/08/27/televising-the-cbs-

trial/a848f06c-d5a3-47ba-852c-1132429d1fb6/ [https://perma.cc/GXS9-XTAP].

Westmoreland, 596 F. Supp. at 1170.

Westmoreland, 752 F.2d at 22.

Id. at 24 (noting that the right to have cameras in the courtroom is “created by

consent of the judiciary, which has always had control over the courtrooms”).

See Kent Babb, How the O.J. Simpson Murder Trial 20 Years Ago Changed

the Media Landscape, WASH. POST (June 9, 2014, 6:23 PM),

https://www.washingtonpost.com/sports/redskins/how-the-oj-simpson-murder-trial-

20-years-ago-changed-the-media-landscape/2014/06/09/a6e21df8-eccf-11e3-93d2-

edd4be1f5d9e_story.html [https://perma.cc/B4AX-F5H6] (estimating that “[a]round

95 million viewers” tuned into the 1995 trial of O.J. Simpson for the murders of his

former spouse Nicole Brown Simpson and her friend Ronald Goldman); Aja Romano,

Why We’re Relitigating the Casey Anthony Case Now — And Why We Shouldn’t, VOX

(Dec. 20, 2022, 5:54 PM), https://www.vox.com/culture/23506125/casey-anthony-

evidence-where-the-truth-lies-how-true-or-false [https://perma.cc/U824-DB8E]

(reporting that approximately “40 million viewers worldwide tuned into at least some”

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the defamation trial.

This changed in 2022 when two sets of very

different defamation disputes captured the nation’s attention.

The first of these 2022 cases to upset the status quo involved actors

and ex-spouses Johnny Depp and Amber Heard, whose dueling

defamation claims were destined to attract the public’s interest due to their

celebrity status and the case’s intersection with the #MeToo movement.

Depp claimed his ex-wife defamed him when she described herself as a

“public figure representing domestic abuse” in an op-ed for the

Washington Post, and Heard counterclaimed that Depp had defamed her

by calling her a “liar” and “hoax artist.”

The media livestreamed the trial

proceedings and pulled daily audiences in the millions, and Depp himself

admitted this public attention was its own kind of remedy in that it allowed

him to take control of the narrative regarding his relationship with Heard.

The second nationally televised defamation dispute of 2022 was of a

very different character, involving celebrity and speech of a whole other

sort. Alex Jones, a right-wing media personality, had long advanced the

of the 2011 trial of Casey Anthony for the murder of her two-year-old daughter); Bill

Carter, Zimmerman Verdict Drew 10 Million to Cable TV News, N.Y. TIMES (July 15,

2013), https://www.nytimes.com/2013/07/16/business/media/zimmerman-verdict-

drew-millions-to-cable-tv.html [https://perma.cc/869N-ZRQF] (reporting that more

that 10 million viewers watched the verdict in the 2013 trial of George Zimmermann

for the murder of unarmed black teenager Trayvon Martin); John Koblin, More than

18 Million Tuned in for the Chauvin Verdict, N.Y. TIMES (Apr. 21, 2021),

https://www.nytimes.com/2021/04/21/business/media/chauvin-verdict-viewers.html

[https://perma.cc/YE57-AYJA] (reporting that more than 18 million viewers watched

the delivery of the verdict in the 2021 trial of police officer Derek Chauvin for the

murder of unarmed man George Floyd and that “CNN’s sibling network, HLN, which

covered the entirety of the trial, had its highest ratings since its coverage of the George

Zimmerman trial in 2013”).

See 10 TV Trials That Shook the World: Casey Anthony, OJ Simpson, Rodney

King, HOLLYWOOD REP. (July 5, 2011),

https://www.hollywoodreporter.com/gallery/10-tv-trials-shook-world-208094/

[https://perma.cc/SV3F-FFWX] (ranking America’s most high-profile televised trials

and not including any defamation trial).

Neal Rothschild & Sara Fischer, America More Interested in Depp-Heard

Trial Than Abortion, AXIOS (May 17, 2022),

https://www.axios.com/2022/05/17/amber-heard-johnny-depp-trial-social-media

[https://perma.cc/NK2F-M9EN] (describing public interest in Depp v. Heard).

Julia Jacobs, Amber Heard’s Account of Abuse Challenged by Johnny Depp’s

Lawyer, N.Y. TIMES (May 17, 2022),

https://www.nytimes.com/2022/05/17/arts/amber-heard-johnny-depp-abuse.html

[https://perma.cc/ZGU4-NMJL]; see also Counterclaims at *4, Depp v. Heard, CL-

2019-0002911 (Va. Cir. Ct. Aug. 10, 2020).

Kenzie Bryant, How Court TV’s Wall-to-Wall Coverage Transformed the

Johnny Depp-Amber Heard Story, VANITY FAIR (May 2, 2022),

https://www.vanityfair.com/style/2022/05/how-court-tvs-wall-to-wall-coverage-

transformed-the-johnny-depp-amber-heard-story [https://perma.cc/3ZA6-GF5A]

(describing Depp’s desire to have an “unalloyed chance to share his side of things”).

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conspiracy theory that the Sandy Hook school shooting was a hoax, and

the victims’ families responded by filing defamation actions in Texas and

Connecticut.

Again, the video-streaming of the Texas and Connecticut

damages trials added a new dimension to the litigation. The filming gave

the families an official platform to communicate to the world that their

children were real and lost to them, but it also gave Jones an opportunity

to create video clips for his own audience and to spin the narrative that he

was the true victim.

This new televised access to defamation proceedings comes at an

unfavorable time for media defendants. The tort of libel has been

increasingly weaponized against the press, with politically and financially

powerful plaintiffs bringing costly lawsuits against news organizations

with renewed frequency.

High-profile public figure cases are routinely

making it to discovery and to trial, and the First Amendment protections

of New York Times v. Sullivan have simultaneously come under attack and

been recognized as inadequate to protect news organizations from the

burdens that even unsuccessful libel suits impose.

Motivated political

actors have recently opened up about their goals of weakening newsrooms

through litigation, using promises of lawsuits against the mainstream

media to gain attention and raise funds.

See Alex Jones, Infowars, and the Sandy Hook Defamation Suits, FIRST

AMEND. WATCH (Dec. 2, 2022), https://firstamendmentwatch.org/deep-dive/alex-

jones-infowars-and-the-sandy-hook-defamation-suits/ [https://perma.cc/3E2Q-

ENSE] (tracking Heslin v. Jones, No. D-1-GN-18-001835, 2018 WL 4620309 (Tex.

Dist. Aug. 31, 2018); Lafferty v. Jones, No. CPL-UWY-CV-18-6046436-S, 2018 WL

11470376 (Conn. Super. Dec. 5, 2018); and related defamation suits).

See Anna Merlan, Alex Jones Isn’t Testifying in Court, He’s Making Video

Clips, VICE (Sept. 23, 2022, 5:34 PM), https://www.vice.com/en/article/jgpveg/alex-

jones-isnt-testifying-in-court-hes-making-video-clips [https://perma.cc/5CNQ-

UCYL] [hereinafter Merlan Vice article].

See Matthew L. Schafer & Jeff Kosseff, Protecting Free Speech in A Post-

Sullivan World, 75 FED. COMM. L.J. 1, 28 (2022) (describing vulnerability of New

York Times v. Sullivan, 376 U.S. 254, 270 (1964), and politically-oriented defamation

litigation against news organizations).

Id.

See Kash Patel Legal Offensive Trust, THE THINKING CONSERVATIVE (Feb.

24, 2023), https://www.thethinkingconservative.com/kash-patel-legal-offensive-trust/

[https://perma.cc/H6SV-VEKA] (explaining that the “Kash Patel Legal Offense Trust

is a fund designed to give those smeared by the fake news media and big tech a

voice”); Mike Levine, Trump Loyalist Kash Patel’s Tax-Exempt Charity Raises

Questions, Experts Say, ABC NEWS (Mar. 8, 2023, 3:17 AM),

https://abcnews.go.com/US/trump-loyalist-kash-patels-tax-exempt-charity-

raises/story?id=97657747 [https://perma.cc/W7XP-CVSA] (describing mission of

former Trump White House official’s “legal offense trust” as “‘bring[ing] the fake

news media to their knees’ by funding lawsuits on behalf of the ‘everyday Americans’

across the country who have been ‘defamed’”).

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News organizations have many valid and salutary reasons for

desiring to film defamation proceedings that have attracted public interest,

such as enhancing the public’s basic understanding of the legal system.

But in this climate, the filming of such proceedings may act as an incentive

for opportunistic plaintiffs to bring defamation actions, with the possibility

of this form of publicity serving as a benefit unto itself. While news

organizations have long pressed for access to court proceedings as a free

speech issue, the filming of defamation proceedings may have the

counterintuitive effect of encouraging lawsuits that chill speech in their

own way. This Essay explores this tension, but it does not argue against

the filming or webcasting of defamation proceedings. Indeed, while the

filming of defamation proceedings specifically may impose a cost on

speech, the benefits of filming court proceedings as a general matter may

nonetheless outweigh these costs.

Part I of this Essay addresses the press’s traditional treatment of

camera access to courtrooms as a speech-generative, free-press issue. Part

II describes the renewed trend of anti-press litigants weaponizing libel

litigation to inflict damage on the news media, while bringing attention to

one’s own cause. Part III then considers the Depp v. Heard and Alex Jones

defamation proceedings as television news events, where the public

attention itself may be a desired remedy for the litigants. Part IV finally

observes that in a media environment where press coverage is its own

value, the filming of defamation trials could have the perverse incentive

of encouraging lawsuits against the press.

II. PRESS ADVOCACY FOR CAMERAS IN COURTROOMS

Since the rise of broadcast journalism, news organizations have

frequently sought to film court proceedings,

arguing for their access as a

See infra Part II.

See, e.g., Combined Commc’ns Corp. v. Finesilver, 672 F.2d 818, 821 (10th

Cir. 1982) (unsuccessful challenge to rule prohibiting television broadcasting of

courtroom proceedings); Dorfman v. Meiszner, 430 F.2d 558, 560 (7th Cir. 1970)

(another example of an unsuccessful challenge to rule prohibiting television

broadcasting of courtroom proceedings); Lyles v. State, 330 P.2d 734, 738 (Okla.

Crim. App. 1958) (dispute over presence of television cameras at criminal

proceedings); Court TV to Bring Cameras into the Court Room for Johnny Depp,

Amber Heard Defamation Trial, PR NEWSWIRE (Apr. 5, 2022, 2:15 PM),

https://www.prnewswire.com/news-releases/court-tv-to-bring-cameras-into-the-

court-room-for-johnny-depp-amber-heard-defamation-trial-301518199.html

[https://perma.cc/6CEY-B65Q] (“Court TV has previously led the charge for media

access and served as the pool feed while providing extensive on the ground coverage

for recent milestone legal cases including those involving Derek Chauvin, Kim Potter

and the three men convicted of killing Ahmaud Arbery.”).

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matter of policy and First Amendment rights.

While free press advocates

have been unable to achieve recognition of a constitutional right to film

court proceedings,

courts acknowledge that this activity nonetheless

implicates a speech interest and enhances the press’s ability to cover legal

issues.

More importantly for free press advocates, the vast majority of

states have adopted rules allowing the filming of at least trial-level

proceedings subject to certain conditions.

See, e.g., Petition of Post-Newsweek Stations, Fla., Inc., 370 So. 2d 764, 774,

779–81 (Fla. 1979) (addressing both constitutional and policy arguments in favor of

allowing cameras in courtrooms); see also Oliver Darcy, One Major Difference

Between the Trial for Alex Jones and the Oath Keepers Revives Court Transparency

Question, CNN BUS. (Oct. 5, 2022, 10:47 PM),

https://www.cnn.com/2022/10/05/media/federal-courtrooms-cameras-reliable-

sources/index.html [https://perma.cc/453D-R74R] (“Lisa Zycherman, deputy legal

director for the Reporters Committee for Freedom of the Press, which has argued for

increased transparency in courtrooms, told me that she believes the many reasons put

forth by the federal judiciary to forbid courtroom cameras don’t hold much water.”);

Henry Weinstein, Court TV Founder Defends Live Trial Coverage, L.A. TIMES (Jan.

18, 1996), https://www.latimes.com/archives/la-xpm-1996-01-18-me-25872-

story.html [https://perma.cc/Z6DK-QTBU] (“Faced with the disturbing prospect that

live courtroom coverage of trials could be drastically curbed in California, the founder

of Court TV issued a ringing defense of live coverage Wednesday, declaring that

cameras in courts are based on the nation’s deeply rooted tradition of public trials.”).

See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610 (1978) (stating in

dicta that “there is no constitutional right to have [live witness] testimony recorded

and broadcast. . . . Nor does the Sixth Amendment require that the trial – or any part

of it – be broadcast live or on tape to the public.”); Estes v. Texas, 381 U.S. 532, 539

(1965) (suggesting that the “freedoms granted in the First Amendment” do not “extend

a right to the news media to televise from the courtroom”); but see also Phila. Bail

Fund v. Arraignment Ct. Magistrate Judges, 440 F. Supp. 3d 415, 425 (E.D. Pa. 2020)

(recognizing limited First Amendment “right to audio-record in a non-disruptive and

quiet manner the preliminary arraignment and the determination of bail where the

court has a policy or custom not to make official audio recordings or transcripts of its

own”); Cristina Carmody Tilley, I Am A Camera: Scrutinizing the Assumption That

Cameras in the Courtroom Furnish Public Value by Operating As A Proxy for the

Public, 16 U. PA. J. CONST. L. 697, 713 (2014) (noting that the question of whether

there exists a First Amendment right to film court proceedings “appears to remain

open, and litigants have revived the argument from time to time in the federal courts

of appeal”).

See, e.g., United States v. Yonkers Bd. of Educ., 747 F.2d 111, 114 (2d Cir.

1984) (recognizing speech interest in recording court proceedings, but determining

that prohibition on such activity qualified as a permissible time, place, and manner

restriction); Petition of Post-Newsweek Stations, Fla., Inc., 370 So. 2d at 780

(rejecting argument that First Amendment mandates that electronic media be

permitted to cover courtroom proceedings but agreeing with policy arguments for

cameras in courtroom).

Mitchell T. Galloway, Note, The States Have Spoken: Allow Expanded Media

Coverage of the Federal Courts, 21 VAND. J. ENT. & TECH. L. 777, 791 (2019)

(summarizing state court policies toward news coverage of judicial proceedings).

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The constitutional and policy arguments for the video-recording of

civil and criminal proceedings—and their respective levels of success—

were captured in the Petition of Post-Newsweek Stations case, which the

Supreme Court of the United States later upheld in Chandler v. Florida.

The case arose from a 1975 petition filed by Florida television stations

requesting that the Supreme Court of Florida revise the State’s Code of

Judicial Conduct to allow for the broadcast of judicial proceedings.

The Post-Newsweek petitioners first asked for the recognition of a

constitutional right, rooted in the First and Sixth Amendments, to film both

civil and criminal proceedings.

This would have significantly broadened

the right to attend criminal proceedings in person.

The Supreme Court

of Florida, however, rejected this argument, concluding that while the

Constitution did not require a prohibition against the filming of court

proceedings, it also did not establish a right to this activity.

The Post-Newsweek petitioners’ policy arguments for filming court

proceedings were more successful than their constitutional ones. The

stations argued that allowing the news media to film court proceedings

would enhance transparency and the public’s understanding of the justice

system, increase confidence in it, and even potentially improve the

professionalism of the courts.

The stations also asserted that filming

could be unobtrusive and done in a way that would not disturb judicial

proceedings.

The Supreme Court of Florida accepted these arguments,

concluding that the benefits of filming courtroom proceedings outweighed

potential costs and that Florida’s prohibition against this activity should

be amended.

As a result, the Supreme Court of Florida amended its

canon to allow for electronic media coverage of proceedings in both trial

and appellate courts, subject to judge discretion and certain limitations.

Chandler v. Florida, 449 U.S. 560, 564 (1981).

Petition of Post-Newsweek Stations, Fla., Inc., 370 So. 2d 764, 774 (Fla.

1979).

See id. The standard arguments in favor of such a constitutional right to record

are that, at minimum, the public has a right to attend criminal proceedings; that the

filming of court proceedings expands public access to such proceedings; and that to

prohibit video cameras would be to discriminate between the television and print

media. See Westmoreland v. CBS Inc., 752 F.2d 16, 21 (2d Cir. 1984) (summarizing

and rejecting constitutional arguments in support of filming judicial proceedings);

Audrey Maness, Note, Does the First Amendment’s “Right of Access” Require Court

Proceedings to Be Televised? A Constitutional and Practical Discussion, 34 PEPP. L.

REV. 123, 177 (2006) (providing overview of constitutional arguments for telecasting

of court proceedings).

Petition of Post-Newsweek Stations, 370 So. 2d at 774.

See id. at 780–81 (discussing informative value of television coverage of

governmental proceedings).

See id. at 779–80.

Id. at 781.

Chandler v. Florida, 449 U.S. 560, 565–66 (1981).

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694 MISSOURI LAW REVIEW [Vol. 88

The Supreme Court of the United States ultimately upheld this rule in

Chandler v. Florida, which agreed that the filming of court proceedings

was constitutionally permissible.

The pro-press policy arguments that convinced Florida to allow

cameras in its courtrooms in the 1970s have since carried the day, as each

state now allows cameras under certain conditions.

While federal courts

still generally prohibit the use of cameras in courtrooms, the Second and

Ninth Circuits have allowed for their use in limited circumstances, as have

three district courts.

Members of Congress have also periodically

introduced legislation that would require the federal courts to permit the

use of cameras, subject to certain opt-out provisions,

and such legislation

has received the support of the country’s largest broadcast news

professional organization, the Radio Television Digital News

Association.

III. THE WEAPONIZATION OF DEFAMATION LITIGATION

While getting cameras into courtrooms may be a priority of news

organizations, staying out of court as a defamation defendant is

imperative. Because plaintiffs believe news organizations have large

audiences and deep pockets, such organizations are attractive targets for

defamation actions.

News organizations are also frequently subjected to

“strategic lawsuits against public participation,” or “SLAPPs,” brought by

Id. at 575.

See Maggie Clark, States Slowly Opening Courts to Cameras, STATELINE

(Feb. 9, 2012), https://www.pewtrusts.org/en/research-and-

analysis/blogs/stateline/2012/02/09/states-slowly-opening-courts-to-cameras

[https://perma.cc/2PTN-4GYG] (“All 50 have declared themselves willing to open up

some court business to cameras, although the levels of openness vary from state to

state.”); SARAH ECKMAN, CONG. RES. SERV., R44514, VIDEO BROADCASTING FROM

THE FEDERAL COURTS: ISSUES FOR CONGRESS, 1 (2019)

https://sgp.fas.org/crs/misc/R44514.pdf [https://perma.cc/QFA5-CWXJ] (discussing

same).

See ECKMAN, supra note 37 at 7 n.33.

See id. at 24–27 (discussing recent bills that would allow cameras in federal

courthouses, including the Cameras in the Courtroom Act, the Sunshine in the

Courtroom Act, and the Transparency in Government Act).

RTDNA (@RTDNA), X (Mar. 19, 2021, 1:39 PM),

https://twitter.com/RTDNA/status/1372980943267319809 [https://perma.cc/3QR4-

X9MC].

See generally MLRC 2018 Report on Trials and Damages, 1 MEDIA L. RES.

CTR. BULL. (Apr. 2018) (tracking defamation lawsuits against media defendants);

Marc A. Franklin, Good Names and Bad Law: A Critique of Libel Law and a Proposal,

5 J. MEDIA L. & PRAC. 91, 91–96 (1984) (describing media organizations as frequent

defamation defendants and describing economic incentives for lawsuits against the

press).

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plaintiffs seeking to silence defendants by burdening them with meritless,

bad-faith litigation.

This was an issue both before and after the New York

Times v. Sullivan decision, but it has recently become a pronounced

problem for news organizations, coinciding with the appearances of

cameras at defamation proceedings, as discussed infra Part IV.

By the 1940s, legal commentators already recognized that the press

could be “inhibited by the fear of costly litigation” and acknowledged that

the “use of the libel suit as a means of browbeating political opponents”

was, even then, “not a recent innovation.”

Ideological conflict over civil

rights and Communism marked the period after World War II, and

segments of the public grew increasingly hostile toward the press covering

these social and political developments in ways they believed contrary to

their ideological goals.

The problem worsened as the years progressed.

According to contemporary sources, the number of libel suits against

newspapers doubled from the 1940s to the 1950s, and the damages sought

in these cases also skyrocketed.

A jury award in the hundreds of

thousands of dollars was not uncommon.

Once the 1960s rolled around, juries in libel actions began to award

damages in the millions, creating the possibility that a press-hostile

See Shannon Hartzler, Note, Protecting Informed Public Participation: Anti-

SLAPP Law and the Media Defendant, 41 VAL. U. L. REV. 1235, 1258–68 (2007).

See Samantha Barbas, The Press and Libel Before New York Times v.

Sullivan, 44 COLUM. J.L. & ARTS 511, 513–14 (2021) (describing a “libel climate” in

the 1950s and 1960s in which “controversies around communism and civil rights,

hostility towards the press, and large jury verdicts in tort cases encouraged the use of

large-scale libel litigation as a weapon in political and cultural battle”).

Libel and Slander – Use of Action in Ideological Conflict – Designating One

as Communist Libelous Per Se, 14 U. CHI. L. REV. 697, 698–99, 704 (1947); see also

Lili Levi, Disinformation and the Defamation Renaissance: A Misleading Promise of

“Truth,” 57 U. RICH. L. REV. 1235, 1251 (2023) (describing ongoing “defamation

renaissance” that began in 2010s).

See Barbas, supra note 43, at 534, 537.

Id. at 535, 539; see also Francis D. Murnaghan, From Figment To Fiction To

Philosophy — The Requirement Of Proof of Damages in Libel Actions, 22 CATH. U.

L. REV. 1, 4 n.9 (1972) (quoting 1 A. HANSON, LIBEL AND RELATED TORTS, Preface at

vii (1969) as indicating “that, commencing in the late 1950’s, a movement developed

by which ‘the number of libel suits brought expanded by several hundred percent’”);

Note, Punitive Damages in Defamation Litigation: A Clear and Present Danger to

Freedom of Speech, 64 YALE L.J. 610, 615 (1955) (recognizing threat of excessive

damages to speech and observing that “there are well-financed, highly organized, and

resourceful private interest groups which might attempt to enforce their views or force

others to withhold opinion by bringing or threatening such suits”).

See Barbas, supra note 43, at 535–39 (describing “exponential” increase in

size of jury awards and providing examples).

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plaintiff could bankrupt a news organization over a single story.

Segregationists who sought to shut down sympathetic coverage of the civil

rights movement used these suits to their advantage. For example, one

Alabama sheriff brought a three million dollar suit against the publisher of

Ladies Home Journal for its reporting on police brutality against civil

rights demonstrators.

Similarly, CBS faced a $1.5 million suit for

reporting on the obstacles Black Alabamans faced when registering to

vote.

The litigation strategy was obvious, with one Alabama newspaper

even running an article about the rash of pro-segregation libel suits under

the headline, “State Finds Formidable Club to Swing at Out-of-State

Press.”

By 1964, damages claimed in pending lawsuits against the press

totaled more than $280 million, which is approximately $2.8 billion

today.

The ultimate goal was to “use the cost of defending litigation and

the threat of massive liability to drive Northern reporters out of the

South.”

The case of New York Times v. Sullivan represents another case in

which the claimant weaponized the press. A police commissioner sued

the Times, along with four Black clergymen, over minor inaccuracies

contained in an advertorial describing police brutality toward civil rights

activists.

The suit was a sham in multiple respects. The trial judge in

the case previously prohibited the National Association for the

Advancement of Colored People (“NAACP”) from operating in Alabama,

Id. at 540–42 (describing media concerns regarding increase in damages

claims and discussing award of $3-million verdict to football coach Wally Butts in his

lawsuit against Curtis Publishing Company, which published the Saturday Evening

Post).

KERMIT L. HALL & MELVIN I. UROFSKY, NEW YORK TIMES V. SULLIVAN: CIVIL

RIGHTS, LIBEL LAW, AND THE FREE PRESS 85 (Univ. Press of Kan. 2011).

Id.

Id. at 84.

See John Herbers, Libel Actions Ask Millions in South; 17 Suits by Public

Officials are Pending in Courts, N.Y. TIMES (Apr. 4, 1964),

https://www.nytimes.com/1964/04/04/archives/libel-actions-ask-millions-in-south-

17-suits-by-public-officials.html [https://perma.cc/6WZQ-APKB] (“At least 17 libel

actions brought by public officials in three Southern states against newspapers,

magazines and a television network are pending in state and Federal courts. Total

damages sought exceed $288 million.”); ANTHONY LEWIS, MAKE NO LAW: THE

SULLIVAN CASE AND THE FIRST AMENDMENT 36 (Vintage Books 1991) (“By the time

the Supreme Court decided the Sullivan case, in 1964, Southern officials had brought

nearly $300 million in libel actions against the press.”).

Howard M. Wasserman & Charles W. “Rocky” Rhodes, Solving the

Procedural Puzzles of the Texas Heartbeat Act and its Imitators: New York Times v.

Sullivan as Historical Analogue, 60 HOUS. L. REV. 93, 106 (2022).

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 257–58 (1964).

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lauded the Confederacy, and ran a segregated courtroom.

None of the

witnesses in the trial proceedings testified to believing that any of the

statements in the advertorial, which did not use the commissioner’s name,

actually referred to him.

Nor did the commissioner make any other

“effort to prove that he suffered actual pecuniary loss as a result of the

alleged libel.”

Even so, the all-white jury awarded the commissioner

$500,000 in damages.

By the time the Supreme Court of the United

States heard Sullivan on appeal, three other cases related to the advertorial

remained pending, with damages of two million dollars claimed.

With its opinion in Sullivan, the Supreme Court sought to temper

these sorts of weaponized cases against the press and civil rights

movement.

Sullivan invalidated the Alabama verdict and

constitutionalized the law of libel in the process. By establishing the

heightened First Amendment “actual malice” standard, Sullivan imposed

a new burden on public officials by requiring them to show that false

statements were made not with mere negligence but with actual knowledge

of falsity or reckless disregard for the truth in order to prevail.

In the

following decade, the Supreme Court extended this actual malice rule to

public figures and to individuals who inserted themselves into

controversies of public concern.

During this period of First Amendment-

expansion, there were virtually no reported cases of public officials

recovering in defamation actions, and commentators described “fear of

libel” as a “much less pervasive influence” on news organizations.

Anthony Lewis, The Sullivan Case, NEW YORKER (Nov. 5, 1984),

https://www.newyorker.com/magazine/1984/11/05/the-sullivan

[https://perma.cc/RYS7-NAWB].

Sullivan, 376 U.S. at 260.

Id.

Id. at 256.

Id. at 278 n.18.

John Bruce Lewis & Bruce L. Ottley, New York Times v. Sullivan at 50:

Despite Criticism, the Actual Malice Standard Malice Standard Still Provides

“Breathing Space” for Communications in the Public Interest, 64 DEPAUL L. REV. 1,

2 (2014) (“The opinion initially was the subject of high praise for its impact on the

law of libel and on First Amendment rights, and for protecting the newspaper and the

nascent civil rights movement from potentially stifling damage awards.”).

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).

See generally Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967) (extending

actual malice rule to public figures to show actual malice); Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974) (same to “limited-purpose public figures”).

David A. Anderson, Libel and Press Self-Censorship, 53 TEX. L. REV. 422,

430 (1975); see also Anthony Lewis, New York Times v. Sullivan Reconsidered:

Time to Return to “The Central Meaning of the First Amendment”, 83 COLUM. L.

REV. 603, 608 (1983) (describing the failure of public figures to succeed in defamation

actions in the immediate period following Sullivan).

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But Sullivan and its progeny did not result in the “obsolescence” of

the tort of libel, as some anticipated, nor did it immunize the press from

weaponized suits.

Starting again in the 1980s, governors, mayors, and

other public officials began filing multimillion-dollar lawsuits against

media outlets in response to public criticism of them.

Westmoreland v. CBS Inc. itself was one strategic attack against the

media. A neo-conservative financier bankrolled the $120 million lawsuit,

which was understood to be part of a political effort to intimidate CBS and

delegitimize its reporting on the Vietnam War.

In 1984, the president of

CBS News described the libel suit as a “rallying point for people who seek

to use [the tort of defamation] as an instrument for damaging the image,

spirit and aggressiveness of the news media” and suggested that General

Westmoreland was “merely the point man in their search-and-destroy

mission.”

When all was said and done, the third parties put more than

three million dollars toward the suit, only for Westmoreland to drop the

case in the trial’s final days.

The settlement terms did not require CBS

to make any correction to its reporting or pay any money to General

Rodney A. Smolla, Let the Author Beware: The Rejuvenation of the American

Law of Libel, 132 U. PA. L. REV. 1, 1 (1983).

Id. at 2.

See Walter Schneir & Miriam Schneir, Beyond Westmoreland: The Right’s

Attack on the Press, NATION (Mar. 30, 1995),

https://www.cia.gov/readingroom/document/cia-rdp90-00552r000605820001-1

[https://perma.cc/D33Z-VC5F] [hereinafter Schneir & Schneir] (describing the

“Westmoreland affair” as the New Right’s “most ambitious” “anti-media project”);

David Margolick, Westmoreland v. CBS: Legal Drama Intensified by 2 Contrasting

Lawyers, N.Y. TIMES (May 31, 1984),

https://www.nytimes.com/1984/05/31/nyregion/westmoreland-v-cbs-legal-drama-

intensified-by-2-contrasting-lawyers.html [https://perma.cc/2T53-6NE6] (“CBS and

its lawyers charge that Mr. Burt and the Capital Legal Foundation’s prime financial

backers—among them, Richard Mellon Scaife, the Olin Foundation and the Smith

Richardson Foundation—are using the general to advance their own objectives: to

legitimize the Vietnam War, intimidate the media and lower the legal obstacles to libel

judgments.”).

See Schneir & Schneir, supra note 66; see also Margolick, supra note 66

(“‘General Westmoreland has been captured by neo-conservative groups, who are

knowingly abusing the legal process to refight their version of the Vietnam War,’ said

[Cravath’s David] Boies. ‘Any private group without its own agenda would have told

him, ‘Look, you’re going to lose.’’”).

See M.A. Farber, Suit Against CBS is Being Dropped by Westmoreland, N.Y.

TIMES (Feb. 18, 1985), https://www.nytimes.com/1985/02/18/movies/suit-against-

cbs-is-being-dropped-by-westmoreland.html [https://perma.cc/AM3G-GKZ7]

(describing settlement and litigation expenses); George Lardner Jr., Pittsburgh

Millionaire Financed Westmoreland’s Suit Against CBS, WASH. POST (Feb. 28, 1985),

https://www.washingtonpost.com/archive/politics/1985/02/28/pittsburgh-

millionaire-financed-westmorelands-suit-against-cbs/b7548b38-4d7f-4920-afef-

d97add6322cc/ [https://perma.cc/L9ML-Q34D] (reporting that more than $2 million

of General Westmoreland’s legal expenses were paid by one funder alone).

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Westmoreland.

However, CBS did not come out unscathed. The

network incurred millions of dollars in legal fees, and its journalists had to

spend time preparing for depositions and cross-examinations instead of

reporting news stories.

Plaintiffs periodically filed weaponized lawsuits like Westmoreland

between the 1980s and 2000s, but it was not until the mid-2010s that the

defamation claim became a common political tool used against the press’s

legitimacy.

During his 2016 campaign and over the course of his

administration, the mainstream media became a favorite target of former

President Donald Trump, who called the press an “enemy of the people”

and “fake news.”

He and his campaign escalated those attacks through

multiple lawsuits against news organizations, including one against CNN

for $475 million.

Former Alaskan governor and vice-presidential

candidate Sarah Palin railed against the “lamestream media” as she

described the press, only to later sue the New York Times in a case that

went to a jury.

Additionally, former Senate candidates Joe Arpaio and

Don Blankenship have each been aggressive defamation plaintiffs,

See Farber, supra note 68 (stating settlement terms).

Id.

See Levi, supra note 44 (“Since the start of the Trump presidency, ‘political’

libel cases by prominent and visible political people—some brought by repeat player

‘libel bullies’—have been growing.”); 1 LAW OF DEFAMATION § 1:5 (2d ed. 2023) (“In

the ensuing decades, the ‘rejuvenation’ [of libel law predicted in the 1980s] has

morphed into a veritable defamation ‘explosion.’ During a six-month period in 2019,

some two hundred or more reported state and federal court decisions involving

defamation actions were published. These published judicial decisions, of course, are

merely the tip of the iceberg.”).

MARVIN KALB, ENEMY OF THE PEOPLE: TRUMP’S WAR ON THE PRESS, THE

NEW MCCARTHYISM, AND THE THREAT TO AMERICAN DEMOCRACY 1–2 (Brookings

Inst. Press 2018).

See, e.g., Donald J. Trump for President, Inc. v. CNN Broad., Inc., 500 F.

Supp. 3d 1349 (N.D. Ga. 2020); Donald J. Trump for President, Inc. v. Northland

Television, LLC, No. 20-CV-385-WMC, 2020 WL 3425133 (W.D. Wis. June 23,

2020); Donald J. Trump For President, Inc. v. N.Y. Times Co., No. 152099/2020,

2020 WL 962293 (N.Y. Sup. Feb. 26, 2020); Michael M. Grynbaum, Trump Sues

CNN for Defamation, Seeking $475 Million, N.Y. TIMES (Oct. 3, 2022),

https://www.nytimes.com/2022/10/03/business/media/trump-cnn-lawsuit.html

[https://perma.cc/94GQ-YDQC] (reporting on President Trump’s lawsuits against

CNN, the New York Times, and the Washington Post).

See Palin v. N.Y. Times Co., 604 F. Supp. 3d 208, 212 (S.D.N.Y. 2022)

(providing procedural history of case); Andy Barr, Palin Trashes ‘Lamestream

Media’, POLITICO (Nov. 18, 2009, 7:29 PM),

https://www.politico.com/story/2009/11/palin-trashes-lamestream-media-029693

[https://perma.cc/M998-BW8C].

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700 MISSOURI LAW REVIEW [Vol. 88

claiming damages in the hundreds of millions and billions against news

organizations.

Though none of these high-profile public-official lawsuits have yet

to return a verdict against a news organization,

the lawsuits have still

managed to cause some harm. Even an early dismissal of the case can cost

a news organization hundreds of thousands of dollars in legal fees on

drafting and arguing motions.

Continuing into the early litigation phase,

See, e.g., Blankenship v. Fox News Network, LLC, No. 2:19-cv-00236, 2022

WL 321023 (S.D. W. Va. Feb. 2, 2022) (suing multiple news organizations in

connection with minor factual inaccuracies regarding plaintiff’s criminal history);

Arpaio v. Cottle, 404 F. Supp. 3d 80 (D.D.C. 2019) (suing New York Times columnist

for criticism of Arpaio’s practices as Maricopa County sheriff); see also Eriq Gardner,

Media Companies Must Face Coal Executive’s $12 Billion Libel Suit, HOLLYWOOD

REP. (Apr. 1, 2020, 11:38 AM),

https://www.hollywoodreporter.com/business/business-news/media-companies-face-

coal-executives-12-billion-libel-suit-1287901/ [https://perma.cc/GY37-GN3H]

(reporting on Blankenship’s litigation against ABC, Fox News, and others); Jessica

Campisi, Judge Tosses out Joe Arpaio’s $300M Defamation Lawsuit Against CNN,

Other Media Outlets, THE HILL (Nov. 1, 2019, 2:24 PM),

https://thehill.com/regulation/court-battles/468562-federal-judge-tosses-joe-arpaios-

300m-defamation-lawsuit-against-cnn/ [https://perma.cc/9VAD-4M3D].

Michael Norwick, The Empirical Reality of Contemporary Libel Litigation,

in NEW YORK TIMES V. SULLIVAN: THE CASE FOR PRESERVING AN ESSENTIAL

PRECEDENT, MEDIA L. RES. CTR. (2022) (analyzing defamation litigation against

media defendants from 2009 onward). Although none of the aforementioned suits

have resulted in verdict against news organizations, that is not to say that there have

been no successful defamation verdicts against other types of defendants. See, e.g.,

Bill Donahue, Cardi B’s $4M Defamation Verdict Against Tasha K Upheld By

Appeals Court, BILLBOARD (Mar. 21, 2023), https://www.billboard.com/pro/cardi-b-

defamation-verdict-tasha-k-upheld-appeals-court/ [https://perma.cc/FS2N-WWR6].

Additionally, a number of legal commentators believe that Fox News may be found

liable in the $2.7-billion defamation suit brought by Smartmatic. Alison Durkee, Why

Fox News’ Next Defamation Suit—From Smartmatic—Might Require Another ‘Big

Check’ To Settle, FORBES (Apr. 19, 2023, 12:02 PM),

https://www.forbes.com/sites/alisondurkee/2023/04/19/why-fox-news-next-

defamation-suit-from-smartmatic-might-require-another-big-check-to-

settle/?sh=11fe3dcb9dfc [https://perma.cc/N66E-48BA].

See Kelly McBride, McClatchy Could Hire 10 Reporters for the Money It Will

Spend to Get Devin Nunes Lawsuit Dismissed, POYNTER (Apr. 11, 2019),

https://www.poynter.org/ethics-trust/2019/mcclatchy-could-hire-10-reporters-for-

the-money-it-will-spend-to-get-devin-nunes-lawsuit-dismissed/

[https://perma.cc/V24K-FKB4] (“While newspapers have insurance for a judgment or

a settlement, they rarely recoup their lawyers’ fees, even when a suit is dismissed. The

average cost to get a defamation or libel suit against a newspaper dismissed is

$500,000, according to industry experts.”); Justin Baragona, OAN Loses Appeal

Against Maddow, Must Pay MSNBC at Least $250,000, DAILY BEAST (Aug. 17, 2021,

4:47 PM), https://www.thedailybeast.com/oan-loses-appeal-against-rachel-maddow-

must-pay-msnbc-at-least-dollar250000 [https://perma.cc/ZM6M-BU58] (“After

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discovery can push litigation expenses into the millions.

In some cases,

news organizations would prefer to settle for astronomical sums rather

than bear the risk of an even more eye-popping verdict, as was the case for

ABC when it settled for more than $177 million to drop a $1.9 billion

defamation suit in 2017.

Additionally, libel lawsuits also take time and

resources from newsrooms

and impose the very “chilling effect”—

particularly upon smaller and mid-sized outlets—that Sullivan sought to

mitigate.

For a tort that is intended to remedy harms to one’s name, libel

lawsuits can also have the somewhat ironic effect of damaging the media

defendant’s reputation and eroding trust in the quality of its news

product.

When a company’s mission is to publish factual and accurate

information, litigation alleging that it publishes false information without

regard for the truth is particularly harmful.

This trend of weaponized lawsuits against the press seems unlikely

to abate anytime soon. Distrust in media remains at near-record highs,

with self-identified conservatives in particular holding the press in low

MSNBC and Maddow later asked for the right-wing channel to pay $350,000 in legal

fees, the court permanently dismissed the case this past February and awarded

MSNBC and Maddow a total of $247,667.50.”); see also David A. Barrett,

Declaratory Judgments for Libel: A Better Alternative, 74 CAL. L. REV. 847, 860

(1986) (“Even if the defendant believes the possibility of losing the action is remote,

the size of the claim forces the defendant to defend itself vigorously” using a “full-

scale defense, often conducted by a top law firm[.]”).

See D. Victoria Baranetsky & Alexandra Gutierrez, What a Costly Lawsuit

Against Investigative Reporting Looks Like, COLUM. JOURNALISM REV. (Mar. 30,

2021), https://www.cjr.org/tow_center/costly-lawsuit-against-investigative-

reporting-looks-like.php [https://perma.cc/3LC3-LMB4] (writing that discovery in a

lawsuit held to be a SLAPP still required the billing of “millions in legal fees on

discovery alone”).

Christine Hauser, ABC’s ‘Pink Slime’ Report Tied to $177 Million in

Settlement Costs, N.Y. TIMES (Aug. 10, 2017),

https://www.nytimes.com/2017/08/10/business/pink-slime-disney-abc.html

[https://perma.cc/QS2J-AHSG].

See id.

See Barrett, supra note 77 (“[M]ounting evidence indicates that, apart from

certain ‘large and profitable’ media defendants which deny any impact on their

editorial practices, many publishers and broadcasters are feeling a significant chilling

effect.”); see also N.Y. Times Co. v. Sullivan, 376 U.S. 254, 300 (1964) (Goldberg,

J., concurring) (“[I]f newspapers, publishing advertisements dealing with public

issues, thereby risk liability, there can also be little doubt that the ability of minority

groups to secure publication of their views on public affairs and to seek support for

their causes will be greatly diminished.”).

See Randall P. Bezanson, Libel Law and the Realities of Litigation: Setting

the Record Straight, 71 IOWA L. REV. 226, 228 (1985) (“By invoking the formal

judicial system, the plaintiffs legitimize their claim of falsity.”); Kishanthi Parella,

Public Relations Litigation, 72 VAND. L. REV. 1285, 1294 (2019) (“While a dismissal

can protect a defendant from a frivolous lawsuit in a court of law, it does not similarly

protect the defendant from harm in the court of public opinion.”).

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702 MISSOURI LAW REVIEW [Vol. 88

regard.

Republican politicians, like former President Trump and Florida

Governor Ron DeSantis, have recently and explicitly stated their desires

to punish the media through litigation, in addition to advocating for

changes in defamation law.

Supreme Court Justices Clarence Thomas

and Neil Gorsuch also indicated their beliefs that it should be easier to

bring libel actions, inviting test cases to challenge Sullivan.

Political

entrepreneurs have shown eagerness to accept this invitation, establishing

funds and organizations with the express mission of suing the press.

IV. THE FILMING OF DEFAMATION PROCEEDINGS

In 2022, a new development occurred in this already-charged libel

climate: defamation proceedings became filmed events. The defamation

lawsuit between actors and ex-spouses Johnny Depp and Amber Heard

See Megan Brenan, Americans’ Trust In Media Remains Near Record Low,

GALLUP (Oct. 18, 2022), https://news.gallup.com/poll/403166/americans-trust-media-

remains-near-record-low.aspx [https://perma.cc/RYC3-Y8QU]; see also Meredith

Conroy, Why Being ‘Anti-Media’ Is Now Part Of The GOP Identity,

FIVETHIRTYEIGHT (Apr. 5, 2021, 6:00 AM), https://fivethirtyeight.com/features/why-

being-anti-media-is-now-part-of-the-gop-identity/ [https://perma.cc/PE9Y-68X7]

(“Hostility and distrust of the news media, in other words, has become a point of

political identity among Republicans.”).

See Elahe Izadi & Lori Rozsa, DeSantis Wants ‘Media Accountability.’ A New

Bill Makes Suing Journalists Easier, WASH. POST (Mar. 23, 2023, 5:00 AM),

https://www.washingtonpost.com/media/2023/03/23/desantis-florida-libel-

defamation-media/ [https://perma.cc/LVX2-62NU] (discussing politicians’ views on

defamation law); Tom Kludt, Ron DeSantis Loves to Bash the Press. Will That

Playbook Work in a Presidential Race?, VANITY FAIR (Mar. 10, 2023),

https://www.vanityfair.com/news/2023/03/ron-desantis-press-playbook-presidential-

race [https://perma.cc/XH4Q-HR8F] (describing Gov. DeSantis’s “dogfighting” with

the media and his proposal to “make it easier to sue news outlets for defamation” in

the context of his 2024 presidential bid).

Berisha v. Lawson, 41 S. Ct. 2424 (2021) (Thomas, J., dissenting from denial

of certiorari); Id. at 2428–29 (Gorsuch, J., dissenting from denial of certiorari); see

also Linda Greenhouse, Bring Me a Case, N.Y. TIMES (Nov. 13, 2013),

https://www.nytimes.com/2013/11/14/opinion/bring-me-a-case.html

[https://perma.cc/N3AL-36WK] (observing that dissents from denial can be

understood as overtures to raise a specific issue).

See, e.g., Yaron Steinbuch, Kyle Rittenhouse Launches Initiative to Combat

‘Lies’ From Media Outlets, Personalities, N.Y. POST (Feb. 22, 2022, 8:12 AM),

https://nypost.com/2022/02/22/kyle-rittenhouse-launches-initiative-to-combat-lies-

from-media/ [https://perma.cc/N7GU-CKT8] (reporting that Kenosha shooter Kyle

Rittenhouse had launched “The Media Accountability Project as a tool to help

fundraise and hold the media accountable for the lies they said and deal with them in

court”); Levine, supra note 21 (explaining that the mission of former Trump appointee

Kash Patel’s “Legal Offense Trust was to ‘bring the fake news media to their knees’

by funding lawsuits on behalf of the ‘everyday Americans’ across the country who

have been ‘defamed’”).

Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 6

https://scholarship.law.missouri.edu/mlr/vol88/iss3/6

2023] THE FILMING DILEMMA 703

became a television and social media sensation, with some commentators

describing it as a contender for “trial of the century.”

Just months after

that trial ended, more than a million viewers tuned into a separate pair of

damages trials focused on the amount of harm conspiracy theorist Alex

Jones caused by perpetuating the hoax that the Sandy Hook school

shooting was fake and involved actors.

Both the Depp v. Heard and Alex Jones trials attracted substantial

publicity and gave the parties an opportunity to use the courtroom as a

platform to communicate with their supporters. These actions, where the

public understanding of the truth of a matter was at issue, took on a meta

dimension, where that same public understanding was being shaped and

reshaped as the trials unfolded. In the process, these trials showed that the

broadcasting of defamation proceedings could have an impact on public

opinion that rivaled the actual trial outcomes

—an extralegal benefit that

could have its own appeal to a litigant.

See Kristin Bender, What Makes Trials Famous?, AM. BAR. ASS’N (Jan. 30,

2023),

https://www.americanbar.org/groups/litigation/publications/litigation_journal/2022-

23/winter/what-makes-trials-famous/ [https://perma.cc/BE2X-XHTG]; Simon

Dumenco, Depp-Heard: 6 Lessons from ‘Hollywood’s Trial of the Century’, ADAGE

(May 31, 2022), https://adage.com/article/media/depp-heard-6-mediaeconomy-

lessons-trial/2418586 [https://perma.cc/W8V3-8LUY]; Ashley Collman, Johnny

Depp’s Trial Against Amber Heard Became the Biggest News Event in the Country

Because it’s the Perfect Storm of America’s Obsession with Celebrity, INSIDER (May

28, 2022, 9:03 AM), https://www.insider.com/why-the-world-became-obsessed-with-

the-depp-v-heard-trial-2022-5 [https://perma.cc/DRL2-VJGP].

See Lawyer Grills InfoWars Producer Daria Karpova Over Sandy Hook

Shooting ‘Hoax’ Reports, LAW & CRIME NETWORK (July 27, 2022),

https://www.youtube.com/watch?v=pKb-ySKkN5Q [https://perma.cc/BG92-NVJ9]

(showing nearly 1.5 million views for one witness’s testimony); Lawyer Asks Alex

Jones if He Knows What ‘Perjury’ Is After Surprise Text Message Reveal, LAW &

CRIME NETWORK (Aug. 3, 2022), https://www.youtube.com/watch?v=tpnSCIak5A8

[https://perma.cc/Z9CH-69S7] (showing nearly 1.3 million views for testimony from

Alex Jones).

This outcome was anticipated by the trial judge in Westmoreland, who

presciently observed that a verdict in that case “may settle liability as between the

parties; but it is unlikely to settle anything for anyone else,” and that the filming of the

trial would have been “more important than its decision” because “historians and

commentators on the war and on the press w[ould] not accept the verdict of the jury

and the rulings of the judge as definitive answers” but would instead “seek lessons

and conclusions by analysis of the witnesses’ testimony.” Westmoreland v. CBS Inc.,

596 F. Supp. 1166, 1169 (S.D.N.Y. 1984).

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704 MISSOURI LAW REVIEW [Vol. 88

A. Depp v. Heard

The case of Depp v. Heard arose from a 2018 op-ed Amber Heard

published in the Washington Post.

In the article, Heard referred to

herself as a “public figure representing domestic abuse” and wrote that she

saw “how institutions protect men accused of abuse.”

She also tweeted

a link to the op-ed, which was headlined, “I spoke up against sexual

violence—and faced our culture’s wrath. That has to change.”

Two

years before publishing the article, Heard filed a restraining order against

her then-husband Johnny Depp and initiated divorce proceedings, alleging

he had been violent toward her.

The op-ed itself, however, did not refer

to Depp by name.

Depp then brought a fifty-million-dollar defamation action against

Heard in Virginia state court, alleging the article defamed him by

implication.

Heard counterclaimed, arguing that Depp’s attorney

defamed her by accusing her of perpetuating a “hoax” through her abuse

allegations.

Depp previously lost a similar libel case against a British

tabloid, where there was a lower evidentiary burden to prove libel and

where the court still concluded Heard’s abuse allegations were

substantially true.

The Depp v. Heard trial was inevitably going to attract public

attention. Depp is among Hollywood’s highest-paid actors, having made

hundreds of millions of dollars from the Pirates of the Caribbean film

Amber Heard, I Spoke up Against Sexual Violence—and Faced our Culture’s

Wrath. That has to change., WASH. POST (Dec. 18, 2018, 5:58 PM),

https://www.washingtonpost.com/opinions/ive-seen-how-institutions-protect-men-

accused-of-abuse-heres-what-we-can-do/2018/12/18/71fd876a-02ed-11e9-b5df-

5d3874f1ac36_story.html [https://perma.cc/2LYQ-7PHD].

Id.

Id.; see also Jessica Winter, The Johnny Depp–Amber Heard Verdict Is

Chilling, NEW YORKER (June 2, 2022), https://www.newyorker.com/culture/cultural-

comment/the-depp-heard-verdict-is-chilling [https://perma.cc/UM6D-H2XR]

(summarizing allegedly defamatory statements).

See Rory Carroll, Amber Heard Settles Domestic Abuse Case Against Johnny

Depp, GUARDIAN (Aug. 16, 2016, 2:29 PM),

https://www.theguardian.com/film/2016/aug/16/amber-heard-assault-allegations-

johnny-depp-divorce [https://perma.cc/VN5A-VU9Z].

See Heard, supra note 90.

See Adam Manno, Why Johnny Depp’s Decision to Sue Amber Heard in

Virginia Paid Off, DAILY BEAST (June 1, 2022, 8:21 PM),

https://www.thedailybeast.com/why-johnny-depps-decision-to-sue-amber-heard-in-

virginia-paid-off [https://perma.cc/UA7T-MH5W].

Id.

Bryant, supra note 16.

Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 6

https://scholarship.law.missouri.edu/mlr/vol88/iss3/6

2023] THE FILMING DILEMMA 705

franchise.

Amber Heard was famous enough in her own right, having

appeared in supporting roles in dozens of films, including superhero

blockbusters.

The couple’s divorce was already a subject of tabloid

fascination, and the court proceedings would require both to appear on the

stand and testify about their personal lives.

100

Furthermore, the fact that

the op-ed was published in the wake of the #MeToo discourse regarding

sexual assault and partner violence made the trial all the more salient for

both the public and commentators.

101

With all the public interest in Depp v. Heard, multiple media outlets

requested to film the trial.

102

Heard objected to the presence of a camera

in the courtroom, arguing it was inappropriate to film the proceedings

given the allegations of domestic abuse involved.

103

Heard’s attorneys

also noted that Depp’s supporters were already primed to go after her,

arguing that “[w]hat they’ll do is take anything that’s unfavorable — a

look; [t]hey’ll take out of context a statement, and play it over and over

and over and over again.”

104

Depp, meanwhile, supported the filming of

the trial.

105

After considering the request, the court decided to allow gavel-to-

gavel coverage of the proceeding.

106

The court explained that its decision

was in part an administrative response to media interest in the case and

See Dorothy Pomerantz, Hollywood’s Highest-Paid Actors, FORBES (Sept. 8,

2010, 2:00 PM), https://www.forbes.com/2010/09/08/depp-stiller-hanks-sandler-

business-entertainment-highest-paid-actors.html?sh=4f9266f11ca8

[https://perma.cc/R9KJ-MQ6H]; Joshua L. Weinstein & Sharon Waxman, Johnny

Depp’s Swipe of ‘Pirates’ Profits: $350 Million, THE WRAP (July 5, 2011, 4:52 PM),

https://www.thewrap.com/johnny-depps-swipe-pirate-profits-350-million-exclusive-

28817/ [https://perma.cc/WBL6-T56R].

See Dumenco, supra note 87 (describing Heard’s acting career).

100

See Constance Grady, Johnny Depp, Amber Heard, and Their $50 Million

Defamation Suit, Explained, VOX (Nov. 3, 2022, 4:46 PM),

https://www.vox.com/culture/23043519/johnny-depp-amber-heard-defamation-trial-

fairfax-county-domestic-abuse-violence-me-too [https://perma.cc/Z9RH-BHK4].

101

See David Sillito, Amber Heard and Johnny Depp’s ‘Trial by TikTok’, BBC

(June 1, 2022), https://www.bbc.com/news/world-us-canada-61649522

[https://perma.cc/LQM8-4T6G] (describing case as “symbolic”); see also Michelle

Goldberg, Amber Heard and the Death of #MeToo, N.Y. TIMES (May 18, 2022),

https://www.nytimes.com/2022/05/18/opinion/amber-heard-metoo.html

[https://perma.cc/MCE7-R79A] (commenting on Depp v. Heard in the context of

#MeToo).

102

Gene Maddaus, Why Was Depp-Heard Trial Televised? Critics Call It ‘Single

Worst Decision’ for Sexual Violence Victims, VARIETY (May 27, 2022, 4:15 PM),

https://variety.com/2022/film/news/johnny-depp-amber-heard-cameras-courtroom-

penney-azcarate-1235280060/ [https://perma.cc/FXR3-35PZ].

103

Id.

104

Id.

105

Id.

106

Id.

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706 MISSOURI LAW REVIEW [Vol. 88

suggested that maintaining a livestream would obviate the need for

reporters to flood the courthouse.

107

The proceedings were streamed

across E! News, YouTube, Court TV, and the Law & Crime Network.

108

These streams quickly acquired massive audiences, which only increased

as the trial progressed.

109

Court TV’s viewership quadrupled during the

trial.

110

The Law & Crime Network reportedly saw a fifty-fold increase in

viewers, with its streaming audience hitting a peak of 1.25 million when

Depp took the stand.

111

Internet users widely shared trial footage over social media, with

users largely rallying in support of Depp and vilifying Heard.

112

Clips of

Depp and his legal team went viral, with TikTok videos hashtagged

#JusticeForJohnnyDepp generating more than twenty billion views.

113

contrast, #JusticeForAmberHeard received fewer than 150 million views

as social media users and platform algorithms favored anti-Heard

content.

114

This social media frenzy had not played out with the earlier

British libel trial, which occurred off-camera and attracted only some in-

person queueing of “diehard” fans outside the courthouse doors.

115

Having welcomed the cameras into the courtroom, Depp played to

them during the six-week trial.

116

During his cross-examination, Depp

testified that he brought the lawsuit against Heard because he wanted to

107

Id.

108

See Danielle Braff, Trial by Tiktok: How Social Media Hijacked the Depp v.

Heard Defamation Trial, ABA J., 34 (Oct. 1, 2022, 1:00 AM),

https://www.abajournal.com/magazine/article/how-social-media-hijacked-the-depp-

v.-heard-defamation-trial [https://perma.cc/J4QD-7HZ2].

109

See Maddaus, supra note 102 (describing growth in trial viewership as

“exponential[]”).

110

See Bender, supra note 87.

111

See id; Maddaus, supra note 102.

112

Leigh Gilmore, Johnny Depp’s Strategy of Destruction, WBUR (June 1,

2022), https://www.wbur.org/cognoscenti/2022/06/01/johnny-depp-amber-trial-

heard-me-too-intimate-partner-violence-leigh-gilmore [https://perma.cc/82ZB-

FZR9] (“[I]n this trial, every look—every word—from Amber Heard has been memed

and mocked across social media via a steady stream of #AmberHeardIsALiar hate.”).

113

See Braff, supra note 108, at 34.

114

See id. (tallying views as of September 2022); Jessica Winter, The Johnny

Depp–Amber Heard Trial Is Not as Complicated as You May Think, NEW YORKER

(May 23, 2022), https://www.newyorker.com/culture/cultural-comment/the-johnny-

depp-amber-heard-trial-is-not-as-complicated-as-you-may-think

[https://perma.cc/9NT8-5262] (commenting on the proliferation of “anti-Heard

content on Facebook and Instagram”).

115

Henry Mance, Johnny Depp, the High Court and the Reality of Fame, FIN.

TIMES (July 30, 2020), https://www.ft.com/content/e7607bb7-63e3-4084-aef9-

73a717c7a75b [https://perma.cc/T99D-QB4S] (describing role of fame in Depp’s

British case against Heard without discussing social media treatment of proceedings).

116

Bryant, supra note 16 (reporting that Depp “wanted it televised”).

Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 6

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2023] THE FILMING DILEMMA 707

be “able to speak and use [his] own voice.”

117

As the proceedings

continued, commentary suggested that even if Depp ultimately lost his

case against Heard, he would likely still win in the court of public

opinion.

118

One public relations expert in crisis management suggested

that through the filmed proceedings, Depp was “showing studios and

showing publicists that he can win audiences over.”

119

Indeed, the filming

of the litigation was itself a “PR advantage” that gave the case value apart

from any winning verdict.

120

The jury ultimately ruled in Depp’s favor on his defamation claims,

awarding him more than ten million dollars in damages.

121

However, the

jury also agreed that Depp’s attorney had defamed Heard by stating she

had perpetrated a hoax and thus awarded her damages totaling two million

dollars.

122

Within a week of receiving the verdict, Depp joined TikTok

and promptly amassed ten million followers.

123

He dedicated his first

video to the fans who watched and stood by him during the trial.

124

B. The Alex Jones Damages Trials

On a few key dimensions, the Alex Jones proceedings were of a

different character than Depp v. Heard. Jones had already been subject to

default judgments in the defamation cases against him for failure to

117

Id.

118

See, e.g., id. (“[I]f you’ve been watching, it’s difficult to shake the feeling

that Depp’s presentation of his case to as broad an audience as possible will be some

kind of victory for the actor.”); Dumenco, supra note 87 (“In a way, the Depp-Heard

trial is, for better or worse, a referendum on celebrity popularity.”).

119

Jacob Shamsian & Ashley Collman, Amber Heard Overacted on the Stand,

but Johnny Depp’s Defamation Lawsuit is Still Hers to Lose, Experts Say, INSIDER

(May 7, 2022, 8:44 AM), https://www.insider.com/experts-amber-heard-over-acted-

on-the-stand-will-win-2022-5 [https://perma.cc/F6VG-BSUV].

120

Victoria Bekiempis, Could Amber Heard Win Her Appeal Against Johnny

Depp?, VULTURE (Aug. 19, 2022), https://www.vulture.com/2022/08/can-amber-

heard-win-appeal-against-johnny-depp.html [https://perma.cc/T3S3-L9KB].

121

Judgment Order at 1, 6–8, Depp v. Heard, No. CL-2019-2911, 2019 WL

8883669 (Va. Cir. Ct. 2019).

122

Id.

123

Annabel Nugent, Johnny Depp Reaches 10 Million Followers on TikTok

Within 24 Hours of Posting his First Video, THE INDEP. (June 9, 2022, 12:48 PM),

https://www.independent.co.uk/arts-entertainment/films/news/johnny-depp-

followers-tiktok-video-b2097395.html [https://perma.cc/RS22-MJQ8].

124

Kisha Forde, Johnny Depp Dedicates First TikTok to “Unwavering

Supporters” Following Amber Heard Court Battle, E! NEWS (June 7, 2022, 4:38 PM),

https://www.eonline.com/news/1333705/johnny-depp-dedicates-first-tiktok-to-

unwavering-supporters-following-amber-heard-court-battle [https://perma.cc/4NSS-

45SG].

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708 MISSOURI LAW REVIEW [Vol. 88

participate in discovery,

125

and there was no Hollywood element to his

case. But like the trial in Depp v. Heard, the Jones damages trials showed

that a courtroom could become its own communicative platform with

cameras present.

Jones, the founder of the conspiracy theory media franchise Infowars,

was sued in Texas and Connecticut by the family members of Sandy Hook

victims for his baseless pronouncements that the Sandy Hook school

shooting was a “false flag” event designed to sway public opinion toward

gun control.

126

The victims’ family members alleged they had been

threatened and harassed for years as a result of Jones’s falsehoods.

127

In many ways, these Sandy Hook claims represent model defamation

actions. There was a clear harm in stating—without a shred of proof and

contrary to all of the evidence otherwise—that the plaintiffs were not

parents of murdered children but instead actors complicit in a left-wing

conspiracy.

128

Neither the Texas nor Connecticut courts, however, had to

reach the merits of whether Jones had propounded this conspiracy theory

with actual malice.

129

Because Jones had refused to comply with his

discovery obligations, default judgments were entered against him in both

states.

130

With default judgments issued against Jones, the cases proceeded to

damages trials, each one livestreamed.

131

Legal commentators closely

followed the livestreams and delivered play-by-plays of the proceedings

on Twitter, now known as X.

132

Jones’s Infowars fans also closely

followed the livestreams, leaving comments threatening the plaintiffs and

125

Elizabeth Williamson, Alex Jones Loses by Default in Remaining Sandy Hook

Defamation Suits, N.Y. TIMES (Sept. 23, 2022),

https://www.nytimes.com/2021/11/15/us/politics/alex-jones-sandy-hook.html

[https://perma.cc/4UBS-6PSU].

126

Shannon Bond, How Alex Jones Helped Mainstream Conspiracy Theories

Become part of American life, NPR (Aug. 6, 2022, 5:00 AM),

https://www.npr.org/2022/08/06/1115936712/how-alex-jones-helped-mainstream-

conspiracy-theories-into-american-life [https://perma.cc/U7PZ-3CGP].

127

Christine Hauser, Alex Jones Loses by Default in Sandy Hook Defamation

Lawsuits, N.Y. TIMES (Oct. 11, 2021), https://nyti.ms/3nUFnHm

[https://perma.cc/94V8-U6HJ].

128

Aja Romano, Alex Jones’s Lies Have Cost Him $965 Million in a Second

Sandy Hook Trial, VOX (Oct. 12, 2022, 5:09 PM),

https://www.vox.com/culture/23292298/alex-jones-sandy-hook-defamation-trial-

heslin-lewis-infowars [https://perma.cc/NF9D-P3XN] (summarizing claims and

effects on plaintiffs and broader discourse).

129

Id.

130

Id.

131

Id.

132

See id. (“A host of journalists and law bloggers have been live-tweeting the

trial minute to minute, from the courtroom and while following the courtroom

livestream.”).

Missouri Law Review, Vol. 88, Iss. 3 [2023], Art. 6

https://scholarship.law.missouri.edu/mlr/vol88/iss3/6

2023] THE FILMING DILEMMA 709

repeating Jones’s theory that the Sandy Hook shooting was staged.

133

The

comments were so harassing and persistent that the feed’s operator, the

Law & Crime Network, disabled the comment section entirely.

134

In contrast to the Depp v. Heard trial, here it was the defendant who

leveraged the cameras to communicate with his fans. During the Texas

proceedings, Jones arrived wearing tape over his mouth, symbolizing that

the lawsuit violated his free-speech rights.

135

At one point he even left the

courtroom to make an Infowars segment, mocking a plaintiff’s testimony

as it was ongoing.

136

With the Connecticut trial, Jones used his testimony

to promote his cryptocurrency donation page, spelling out the URL and

confirming that the donations went right to his “personal wallet.”

137

When

the plaintiffs’ attorney asked him if he was making an advertisement on

the stand, Jones responded, “We’re fighting the Deep State, we need

money.”

138

Infowars then ran that clip and others repeatedly, overlaid with

the URL to the donation page.

139

The narrative on the website was that

Jones was being persecuted through these trials, and that his supporters

needed to give him money (or buy his health supplements) to keep him

from being silenced.

140

Between the two damages trials, Jones was found to owe more than

$1 billion in damages.

141

Although Infowars is now in bankruptcy, it

remains operational with estimated annual revenues of seventy million

dollars and still raises funds off the trial.

142

133

Laura June, The YouTube Channel Streaming Alex Jones’s Trial Disabled

The Chat Because of Threats to Sandy Hook Victims’ Families, BUZZFEED (Sept. 20,

2022, 3:48 PM), https://www.buzzfeednews.com/article/lauraxjune/alex-jones-

sandy-hook-trial-youtube-chat-disabled [https://perma.cc/AVV6-PJ65].

134

See id. (“‘Despite having covered many controversial cases, we have never

before taken such a drastic measure. It also was not a tough call here.’”).

135

Jim Vertuno & Michael Tarm, How Alex Jones’ Bombastic Behavior Impacts

him in Court, AP (Aug. 5, 2022, 7:06 PM), https://apnews.com/article/shootings-

austin-bae315601b623812f376fe3d38c1cf5c [https://perma.cc/RK6F-R75J].

136

Id.

137

Anna Merlan (@AnnaMerlan), X (Sep. 22, 2022, 3:08 PM),

https://twitter.com/annamerlan/status/1573026534322933760

[https://perma.cc/H6Z9-HM7W].

138

Merlan Vice article, supra note 18.

139

Id.

140

Id.

141

See Elizabeth Williamson & Emily Steel, Sandy Hook Families Are Fighting

Alex Jones and the Bankruptcy System Itself, N.Y. TIMES (Mar. 18, 2023),

https://www.nytimes.com/2023/03/18/us/politics/alex-jones-bankruptcy.html

[https://perma.cc/KU76-WMTP].

142

See id.; see also Alex Jones, Exclusive: DOJ Investigates Alex Jones’ Cat!,

INFOWARS (Feb. 24, 2023, 12:06 PM), https://www.infowars.com/posts/exclusive-

doj-investigates-alex-jones-cat/ [https://perma.cc/Z5VG-YGNF] (stating that

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710 MISSOURI LAW REVIEW [Vol. 88

V. CAMERAS AS A LITIGATION INCENTIVE TO DEFAMATION

PLAINTIFFS

In the existing libel climate, there are multiple reasons to believe the

possibility of filmed proceedings could further entice opportunistic

plaintiffs to bring defamation claims, namely the ability to connect directly

with supporters, harm the defendant’s reputation, garner publicity, and

raise money to support their platforms.

A. Ability To Connect with Supporters Directly

As both Depp v. Heard and the Jones trials demonstrated, filmed

trials can provide litigants with a platform to communicate with and

perform for their supporters. Litigants can use their testimony to present

a narrative that appeals to their followings. They can present themselves

as victims in a way that rallies supporters to their defense, as shown by the

TikTok fanbase Depp accrued during his trial and the YouTube

commenters intensely defending Jones. This advantage may be

particularly attractive to individuals who have made being “anti-media” a

part of their brand, as antipathy toward media has become a point of

political identity for some.

143

B. Ability To Inflict Reputational Harm on Defendant

Just as the broadcast of a defamation trial may rehabilitate or even

enhance the reputation of a litigant (if only among the litigant’s own

supporters), a broadcasted trial can also damage the reputation of a

defendant.

Amber Heard’s reputation was plainly damaged by the filming of her

defense against Johnny Depp’s defamation allegations. Heard testified as

much while on the witness stand, stating she received thousands of death

threats throughout the trial.

144

Headlines described her credibility as being

in “tatters”; the hashtag #amberheardisaliar trended on Twitter; and

millions signed a petition supporting her removal from the blockbuster

“Infowars founder Alex Jones released a video on Thursday showing off his

daughter’s cat Mushu who is being targeted by the Department of Justice in relation

to the Sandy Hook lawsuits against jones [sic]” and reminding supporters “to visit the

Infowars Store to do your part in the battle against globalism by purchasing great

products such as dietary supplements, books, t-shirts, survival gear and much more”).

143

See Conroy, supra note 83.

144

Julia Jacobs, Amber Heard Describes Impact of Online Attacks: ‘I’m a

Human Being’, N.Y. TIMES (May 26, 2022),

https://www.nytimes.com/2022/05/26/arts/amber-heard-johnny-depp-

harassment.html [https://perma.cc/MMW7-EB58].

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2023] THE FILMING DILEMMA 711

Aquaman film franchise.

145

None of this would have occurred had the trial

been closed off to cameras. After all, the British trial provoked no such

backlash, even though it covered the same issues.

While defamation litigation against a media defendant necessarily

differs from defamation litigation involving a divorced Hollywood couple,

a motivated plaintiff may still look at Depp v. Heard and surmise that a

filmed defamation trial could potentially harm a news outlet’s

reputation.

146

C. Ability To Attract Publicity Generally

The broadcast of a defamation trial also has the potential to raise a

plaintiff’s public profile in a general sense, simply by drawing more

attention to the plaintiff’s claim.

The difference in the degree of news coverage between Johnny

Depp’s American and British libel cases indicates that the use of cameras

had a real impact on the level of publicity the American trial received.

Because the media filmed the American trial, its dramatic moments could

be easily shared on social media or packaged up for cable news. This

deluge of attention only begat more attention. The New York Times

published eighty-two stories about the American trial, compared to three

145

See, e.g., Giulia Carbonaro, Amber Heard’s ‘Credibility in Tatters’ After

Losing Depp Trial—Legal Expert, NEWSWEEK (June 2, 2022, 8:14 AM),

https://www.newsweek.com/amber-heard-credibility-tatters-losing-depp-trial-legal-

expert-1712333 [https://perma.cc/2AZB-T5CE]; see also Joy Press, What Happens to

Johnny Depp’s and Amber Heard’s Careers? Insiders Weigh In, VANITY FAIR (June

3, 2022), https://www.vanityfair.com/hollywood/2022/06/what-happens-to-johnny-

depps-and-amber-heards-careers [https://perma.cc/3CZG-9WZW].

146

To be sure, a filmed defamation trial could also enhance a media

organization’s reputation if its employees credibly testified that they followed best

reporting practices and standards.

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712 MISSOURI LAW REVIEW [Vol. 88

stories about the British trial.

147

Even the BBC published more stories

about the American trial than the British one.

148

Such coverage—or “earned media,” as opposed to “paid media”—

can have the effect of increasing the public’s name recognition of an

individual and expand familiarity with an individual’s positions.

149

Because defamation trials tend to attract public interest, a motivated

litigant might expect any filmed proceedings to be the subject of at least

some news interest.

D. Ability To Fundraise

Finally, the broadcast of a defamation trial could enhance an

individual’s ability to raise funds in support of his or her cause.

The Alex Jones damages trials provided a clear example of how a

filmed defamation proceeding could be used to raise money, with Jones

literally calling for donations from the witness stand.

150

He also utilized

clips of the trial to drive traffic to his Infowars website, where he promoted

various kinds of dietary supplements and survivalist gear.

151

147

These figures are drawn from a Google site search of the nytimes.com domain

over a three-month period encompassing each trial and using the parties’ names. See

GOOGLE,

https://www.google.com/search?q=site%3Anytimes.com+%22johnny+depp%22+%

22amber+heard%22&rlz=1C1GCEA_enUS961US962&biw=1920&bih=969&tbs=c

dr%3A1%2Ccd_min%3A4%2F1%2F2022%2Ccd_max%3A6%2F30%2F2022&sxs

rf=APwXEdd_skKW2n9Bg9mcDzidBeaiwVpCzw%3A1680314115534&ei=A48nZ

IPaH83k5NoPvaqiEA&ved=0ahUKEwjD593vyYf-

AhVNMlkFHT2VCAIQ4dUDCBA&uact=5&oq=site%3Anytimes.com+%22johnny

+depp%22+%22amber+heard%22&gs_lcp=Cgxnd3Mtd2l6LXNlcnAQA0oECEEY

AVC2A1jTIGCWImgCcAB4AIABfYgBvQmSAQQxMi4zmAEAoAEBwAEB&scl

ient=gws-wiz-serp#ip=1 [https://perma.cc/3R3Z-KDNQ].

148

A review of BBC articles tagged Amber Heard shows forty articles

concerning the American trial, compared to twenty-five articles reporting on the

British proceedings. See Amber Heard, BBC

https://www.bbc.com/news/topics/c90xm9vl5m1t?page=1 [https://perma.cc/MN4G-

GEHM].

149

The term “earned media” refers to any media coverage or received by a

subject for which the subject has not paid. See Andrew T. Stephen & Jeff Galak, The

Effects of Traditional and Social Earned Media on Sales: A Study of a Microlending

Marketplace, 49 J. MKTG RES. 624, 624 (2012). Indeed, former president Donald

Trump’s electoral success in 2016 has been in part tied to his ability to generate earned

media. See Nicholas Confessore & Karen Yourish, $2 Billion Worth of Free Media

for Donald Trump, N.Y. TIMES (Mar. 15, 2016),

https://www.nytimes.com/2016/03/16/upshot/measuring-donald-trumps-mammoth-

advantage-in-free-media.html [https://perma.cc/4WMX-PEKB].

150

See Merlan Vice article, supra note 18.

151

See id.

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2023] THE FILMING DILEMMA 713

While Jones was a defendant, this potential litigation incentive may

be a particular draw for those who are already attempting to raise money

for the purpose of suing the press.

152

VI. CONCLUSION

The filming of defamation proceedings has arrived at a time when the

press is arguably more vulnerable to catastrophic libel claims than at any

point since the New York Times v. Sullivan decision. This Essay shows

that a policy understood to advance press freedoms—the allowance of

cameras in courtrooms—may actually come with some costs to the press,

insofar as this policy has the potential to serve as another incentive to bring

weaponized lawsuits against media organizations.

Does this mean that the press should retreat from its longstanding

support for camera access to courtrooms? Very likely not. The argument

that camera access makes the judiciary more transparent to the public is

still strong and compelling. Moreover, it would be inconsistent and

unworkable for the press to advocate for camera access to all manner of

criminal trials, while shying from camera coverage of defamation trials.

News organizations, however, should nevertheless be mindful that

when they ask to bring cameras into courtrooms, they may one day be on

the other side of the lens.

152

See Levine, supra note 21 (describing Kash Patel’s Legal Offense Fund);

Steinbuch, supra note 86 (describing Kyle Rittenhouse’s Media Accountability

Project).

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