In the spring of 2022, I experienced a phenomenon many only dream of: All my friends, all at once, became extremely interested in what I do for work.
I will fondly remember my time in the sun, though it was due to something that had nothing to do with me—the Johnny C. Depp II v. Amber Laura Heard defamation trial. One friend was spending her days livestreaming courtroom proceedings and texting seriatim updates to our group, Saturday Night Live was parodying some of the particularly outrageous happenings, and my colleagues in London were dissecting Amber Heard’s credibility. It felt like the world was on fire with Depp v. Heard.
Which got me wondering: Why is it that some trials shoot to stardom while others fade into oblivion? For every trial that grips the public’s attention, there are many more forgotten as they unfold. Even of the anointed “trials of the century,” most turn out to be a flash in the pan. Only a handful are remembered as a “trial of the ages.”
Pick just a few noteworthy trials from the last hundred years (any few will do) and you will see that famous trials are born of several characteristics—celebrity, “juicy” facts, overwhelming media coverage. But as to trials with a fame of a lasting vintage, another feature reigns supreme in my view: zeitgeist.
In March 1925, the Tennessee legislature passed the Butler Act, making it a misdemeanor to teach “any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” John Scopes was charged under the Butler Act for teaching evolution during his biology class. Three-time presidential nominee and staunch advocate of the anti-evolution movement William Jennings Bryan Jr. volunteered to work with the prosecution, prompting accomplished orator and defense attorney Clarence Darrow to serve on behalf of 24-year-old Scopes.
As detailed in Monkey Business: The True Story of the Scopes Trial by Marvin Olasky and John Perry, Oklahoma and Florida had already banned the teaching of evolution when the Butler Act passed, and a similar ban had narrowly failed in Kentucky. So the then-green American Civil Liberties Union (ACLU), in search of a case that would garner publicity, put out a press release: “We are looking for a Tennessee teacher who is willing to accept our services in testing this law in the courts. Our lawyers think a friendly test case can be arranged without costing a teacher his or her job. . . . All we need now is a willing client.” Town leaders in Dayton, Tennessee, a former mining town with 1,800 residents and a struggling economy, saw the ACLU’s notice in the Chattanooga Daily Times. They decided that the case could put Dayton “on the map,” and they sent for Scopes, who was down the street playing doubles tennis. Scopes gamely agreed. (He ordinarily would have been home for the summer but had stayed in town given an upcoming date with “a beautiful blonde.”)
During the eight-day trial, the prosecution obtained judicial notice of the book of Genesis, collected witness testimony that Scopes had taught evolution, and quickly rested. The defense countered with a zoologist’s expert testimony on the science of evolution and several prepared expert statements on proof of evolution. It was all very straightforward.
Then, in what the New York Times called “the most amazing court scene in Anglo-Saxon history,” the defense called Bryan to the stand as an expert on the Bible. The move was aimed at discrediting Bryan’s fundamentalist position, if not Bryan himself, by having him defend his ultra-literal view of the Bible. Darrow levied questions about Noah and the flood, the origin of Cain’s wife, and the whale that swallowed Jonah. Bryan defended his literal interpretations before eventually conceding that some of the Bible’s stories might be allegorical. His testimony, later struck from evidence, was deemed “an absurdly pathetic performance” by the New York Times, a sentiment generally echoed elsewhere.
The jury returned a guilty verdict in less than 10 minutes, and Scopes was ordered to pay a fine. The Supreme Court of Tennessee later overturned Scopes’s conviction, while upholding the Butler Act, concluding, “We see nothing to be gained by prolonging the life of this bizarre case.”
Fast-forward to 1994, when the brutally attacked bodies of Nicole Brown Simpson and Ronald Goldman were found outside Brown’s home in Brentwood, California. O.J. Simpson, the former professional football star, actor, and ex-husband of Brown, was deemed the prime suspect in the case. The extended criminal trial that followed in 1995 in Los Angeles County Superior Court, People of the State of California v. Orenthal James Simpson, became one of the most closely followed trials in U.S. history.
The tone for the trial was set before it even began. On June 17, the day Simpson had arranged to surrender himself to authorities, he disappeared, leaving behind an apparent suicide note. And so began law enforcement’s famous 60-mile, low-speed chase of a white Ford Bronco with Simpson and friend A.C. Cowlings inside.
To a child of the 1990s, explaining how the O.J. Simpson trial unfolded feels like explaining sliced bread—it is that obvious. The Simpson defense argued that physical evidence and forensics had been mishandled or planted and that many individuals in the Los Angeles Police Department were biased against Simpson. The incriminating effect of a bloody leather glove at the scene was mitigated, for example, by discrediting its finder, Detective Mark Fuhrman, who had a serious track record of racist comments. The glove was further neutralized through an in-court demonstration by Simpson whereby the glove apparently did not fit—cue the iconic phrase “If it doesn’t fit, you must acquit.”
After 150 witnesses (not Simpson) and more than eight months of proceedings, the jury reached a verdict in under four hours. On October 3, 1995, nearly 150 million Americans tuned in to learn the result. It was a complete defense verdict. A 2015 Nielsen/Sony survey deemed it the third most “universally impactful” televised moment of the last 50 years, after the 9/11 attacks and Hurricane Katrina in 2005. Simpson would go on to be found responsible for the deaths of Brown and Goldman in a civil wrongful death suit by the victims’ families, who were awarded $33.5 million in damages.
Across the Atlantic, in April 2018, a British tabloid, the Sun, published an article originally titled “GONE POTTY How Can J K Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film after assault claim?” Depp sued the Sun’s publisher and executive editor for libel. A trial in the High Court of Justice followed, finding “overwhelming evidence” that Depp had assaulted ex-wife actress Amber Heard on 12 of 14 alleged incidents and that the allegations were “substantially true.”
In February 2019, Depp sued Heard for $50 million in Virginia state court, alleging defamation in a 2018 op-ed in the Washington Post in which Heard stated, “Two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out. . . . I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” Depp argued that the allegations were a publicity scheme and that, in reality, Heard had abused him. Heard countersued for $100 million for three statements by Depp’s attorney describing her allegations of abuse as contrived and a “hoax.”
Defamation law in the United States requires proof of falsity (and, where public figures are concerned, actual malice), whereas libel law in the United Kingdom has the reverse burden—the defendant must prove a statement’s truth. On this basis and given the ruling in the United Kingdom, a betting lady might have placed all her chips, wrongly, on Heard.
After six weeks of altogether unsavory evidence, the jury ruled that Heard was liable to Depp for statements made with actual malice in the amount of $10 million in compensatory damages and $5 million in punitive damages (reduced to $350,000 in keeping with state limits). The jury awarded Heard $2 million on one of her counterclaims and no punitive damages. Afterward, Depp issued a statement concluding, “Veritas numquam perit. Truth never perishes.” Heard’s statement read in part, “I’m sad I lost this case. But I am sadder still that I seem to have lost a right I thought I had as an American—to speak freely and openly.” She was referring to the court of public opinion, which had hanged her.
These cases, though distinct from each other, share core features that can be pieced together to determine what makes a trial famous. For starters, famous trials have a certain amount of celebrity attached to the people involved. Celebrity trials, in which the participants are famous before the trial starts, are the obvious example. During Simpson’s Bronco chase for instance, an estimated 95 million viewers followed along—10 million more than watched the Super Bowl that year. This followership not only validated Simpson’s star power as a defendant but also forecast the trial’s blockbuster potential.
The celebrity doesn’t have to be the litigant, though. In Scopes, the stars were the lawyers. Bryan was welcomed by the crowds when he arrived in Dayton; no one knew who Scopes was. And while Darrow was not as famous as Bryan, he had enough of a roar that the ACLU tried to kick him off the case, fearing that he would overshadow it. Other trials make relevant figures into celebrities, which in turn symbiotically attracts more interest in the trial. If you don’t believe me, take a perusal of satire clips about Judge Lance Ito from 1995. The “Dancing Itos” from the Tonight Show with Jay Leno still gets traction. (On YouTube, one top comment reads, “It’s 2020, a Thursday afternoon, and I suddenly needed to watch Dancing Itos.”)
Each of these trials also was titillating enough to attract an audience. Trials are a permissible means of spectating someone else’s problems; they satisfy the public’s voyeurism. If that sounds dark, it’s because it is. Human nature is to fixate on the macabre. One article describes the phenomenon as follows: “While disgust repels and offends us, it has functionally evolved over time to compel our attention—both to core disgusts (i.e., blood, guts, body products) and sociomoral violations (i.e., injustices, brutality, racism)—making it a quality of many entertainment messages that may keep audiences engrossed and engaged.” Bridget Rubenking & Annie Lang, Captivated and Grossed Out: An Examination of Processing Core and Sociomoral Disgusts in Entertainment Media, 64 J. Commc’n 543 (2014). This psychological fixation is corroborated by the well-known “negativity bias.” We are more sensitive to negative and unpleasant experiences; we register them quickly, we dwell on them more, and we remember them for longer. And so it is that an unsettling trial is equally a delicious point of conversation.
Criminal trials are ready fodder for this type of dark fascination; the Simpson trial was saturated with gore and violence (including horrid allegations of domestic violence). Depp v. Heard was not a criminal trial, but bountiful was the evidence relating to sexual abuse and domestic violence, drugs, even fecal matter. And Scopes had salaciousness in its own way—in 1925, some viewed it as a downright scandal to suggest that man “descended from a lower order of animals.”
There is a levity to trials that balances out the darker bits, but even this adds to the entertainment value. Hilarious or hapless moments may not make a trial famous, but they make a famous trial more famous. The first clip I ever watched from the Depp-Heard trial was effectively a blooper, whereby Heard’s attorney asked a question, then instantly interposed with a hearsay objection to himself. The humor in a moment of genuine, innocent confusion triggered my feed’s algorithm, and it no doubt pulled in a storm of new onlookers just like me.
And then there is the media. It matters. You can be the most famous man in the world doing the most outrageous things, but if no one sees you, it will be as though you never did them.
Each of these trials received extensive media coverage in its own way. The Associated Press had picked up the “Scopes Monkey” story from the start, and WGN Chicago provided the first-ever live national broadcast of an American trial. The Simpson trial broke new ground, too. It was not the first trial to be nationally televised (that award goes to the Ted Bundy murder trial), but the extent of coverage was mind-blowing. According to Time, “[t]he trial, culminating in the verdict’s broadcast from within the courtroom, created some of the most intense early demand for the current 24-hour news cycle and sowed the seeds for the reality television boom to follow.” CNN alone “devoted seventy correspondents, approximately 900 hours of air time, and around three million dollars” to coverage. Derek H. Alderman, TV News Hyper-Coverage and the Representation of Place: Observations on the O.J. Simpson Case, 79 B Geografiska Annaler, no. 2, 83 (1997). As audiences turn from television to the internet, it is a different matter assessing coverage for Depp v. Heard. But it’s clear that the so-called “TikTok Trial” drew in viewers. Newsweek reported that the Law & Crime network had seen daily viewership increase 50-fold across its platforms, with a billion views on case-related content. Court TV network reported that its viewership had increased by 400 percent. Taking into account the content circulated beyond the proceedings themselves—the clips, the reels, the hot takes of people in their living rooms—the views on social media were massive. As of late October 2022, the TikTok hashtags #deppvheard and #justiceforjohnnydepp amassed 1.9 billion and 21.7 billion views, respectively.
There are fair criticisms of media coverage of trials. There are issues of gatekeeping and selection bias, of which stories the media choose to cover and how they are framed. There also are questions surrounding the influence and ethics of press campaigns waged on behalf of litigants concurrently with their cases. There is room for debate as to the value of televising proceedings (such as accurate reporting and facilitating the public’s access) versus avoiding exposure that can foreseeably devolve into a media circus. Plus, social media raise a host of issues from fake news to transparency around bots and algorithms that effectively decide what each of us sees and therefore, on some level, thinks. But at the end of the day, there is no question that media drive a trial’s fame, so long as the trial is interesting enough to spark the flame.
As noted, each of these aforementioned features surely contributes to making a trial famous in the moment, year, or decade. But they are no guarantee of making a trial’s notoriety last. As to those trials that have permanently lodged themselves in collective memory, there is a final and significant element that plays a role—zeitgeist.
I use zeitgeist here—literally translated “spirit of the times”—as a cultural concept, not one of time. Zeitgeist can be viewed as “a pattern in meaningful practices that is specific to a particular historical time-period, links different realms of social life and social groups, and extends across geographical contexts.” Monica Krause, What is Zeitgeist? Examining period-specific cultural patterns, 76 Poetics (2019). Zeitgeists may present issues that stretch beyond time periods yet are captured in poignant ways during particular moments.
Where a trial captures a zeitgeist, there is a fundamental societal issue that has recently been brought into the spotlight. In the case of Scopes, the issue was religion. It was captured through the recent slew of states seeking to codify intelligent design in lieu of evolution. Simpson’s trial presented issues of race and racism, and it took place while the public was still reeling from the acquittals in the Rodney King trial and the subsequent riots in Los Angeles. The domestic violence issues permeating the Depp-Heard trial can be viewed to have taken place during a current period of feminist–post-feminist tension and movements against sexual violence and harassment. The Butler Act, the L.A. riots, and #MeToo primed the public for the trials, preparing people to be outraged, become fascinated, or, at the very least, pick a side.
I’d wondered what brings a trial lasting fame. Where I landed is that the lasting fame stems not from the trial’s legal raison d’être but rather from the societal divides it exposes. Zeitgeist trials offer their audience the prospect of vindicating the audience’s social, ethical, or moral viewpoint on issues as complicated as religion, race, or gender. Because the larger issues that make these trials famous are not, of course, solved by the verdict, the trials stay in the public consciousness in perpetuity. People return to these trials time and again as emblematic of the issues of the day and, often, as indicative of the fact that these issues persist.
The characteristics of trials, even zeitgeist, do not ensure that they will become famous, or famous forever—they are necessary ingredients, not sufficient. Whereas Scopes and Simpson have ineluctably made it into the hall of trial fame (or infamy), it is not always possible to predict which trials will. In his book Reasonable Doubts: The Criminal Justice System and the O. J. Simpson Case, one of Simpson’s defense attorneys, Alan Dershowitz, dismissed the case as a celebrity trial that “will not be remembered in the next century. It will not rank as one of the trials of the century.” So far, time has proven him wrong. As for Depp v. Heard, I predict that it will not have made a lasting impression. The trial’s issues of domestic violence were imperfectly timed to coincide with the recent crests of the related, more broadly focused social movements. I predict, moreover, that online virality’s “easy come, easy go” nature will make more trials massively famous but only for a short while. Time will tell.
I’m sure we’ll find something to distract us while we wait.
