What Do We Hear in Depp v. Heard?
As you probably know—whether you want to or not—the jury reached a verdict earlier this summer in the trial between Amber Heard and Johnny Depp. The trial, in the Fairfax County Circuit Court in Virginia, involved defamation and counter-defamation claims by the two actors. Heard published a 2018 op-ed in The Washington Post in which she claimed to be “a public figure representing domestic abuse.” Depp sued her for defamation, she counter-sued, and a seven-week spectacle of celebrity, misogyny, and power followed, in which Depp substantially prevailed.
What does a close listening to Depp v. Heard tell us about this particular trial, as well as about sex and power in the courtroom more generally?
Depp v. Heard did not just randomly become a media circus. As Joanne Sweeny noted in Slate, the judge made two procedural rulings that led to the ensuing frenzy—and greatly tipped the scales toward the plaintiff. Firstly, the judge allowed cameras in the courtroom to broadcast the proceedings. The Code of Virginia leaves this decision largely up to the court’s discretion, but also stipulates that coverage of “proceedings concerning sexual offenses” is prohibited. Despite the content and high-profile nature of this case, Judge Penney Azcarate decided to proceed with the broadcast.
Azcarate’s decision is strikingly at odds with the court’s emphasis on silence and decorum. Court order CL-2019-2911 stated, for example, that “Quiet and order shall be maintained at all times. Audible comments of any kind during the court proceedings … will not be tolerated.” In fact, Azcarate interrupted proceedings during trial to tell courtroom spectators to keep their mouths shut. During trial, extraneous noise is heard not just as uncivil but as a threat to impartiality and fairness. However, according to the judge’s logic, this threat is only perceived within the courtroom.
This brings us to the second procedural ruling of consequence here. Despite the frenzy enveloping the case, Azcarate decided not to sequester the jury. Jury sequestration involves the members of the jury being isolated from public and press during a trial, in order to avoid accidental or deliberate exposure to outside influence or information. Video from the courtroom flooded the internet and, as commentators have argued, likely and unduly influenced the jury, who were not isolated and prevented from accessing TV or social media. As Depp’s legions of supporters raged online, social media effectively became part of his legal team. This work was done in great part through sound.
Social media online commentary forensically dissected Heard’s oral testimony, noting changes in her breathing patterns or her speech cadence. Often they would hone in on the fact that she “exhale[d] erratically,” or “can talk so fast,” as seen in this Entertainment Tonight compilation:
The online jury adjudicated on all these vocal elements as proof that she was lying. One internet article described her in audiotape evidence as “cackle[ing] like a witch” and alternating between “laugh[ing] hysterically” and using a “baby voice.” Heard’s detractors took her voice as proof that she was emotionless, robotic, calculated, too well-rehearsed—but also that she was chaotic, nervous, crazy.
In contrast, commentators described Depp’s voice as “calm,” “calming,” and “soothing,” with Tik Tok users hash-tagging ASMR to audio of him. One fan even posted a ninety-minute ASMR video of his testimony. Multiple Twitter users claimed that “you can hear the pain” in his voice, from an audiotape admitted during trial. At other times, he is applauded for “giggling” and laughing during the trial, with fans hearing it as evidence of his authenticity and “kind soul.” One YouTube commentator, Grandma WHOa, writes that they wish he would record an audiobook so they could “listen to his calming, sexy soothing man voice.”
So far, so predictable. These are well-established, recognizable patterns about how we hear men’s vs women’s voices in public life—e.g. critiques of Hilary Clinton’s shrill, whiny voice. But listening in to the trial also reveals that this isn’t just a case of online fan culture on overdrive. Instead, it shows how broader social dynamics around gender and power don’t just create outside noise, but are built into formal legal practice within the courtroom.
Much of the conflict here follows a common pattern in defamation cases involving sexual violence claims, with questions around who gets to be a victim (see in my forthcoming piece in HAU: Journal of Ethnographic Theory titled “The Tone of Justice: Voicing the Perpetrator-as-Victim in Sexual Assault Cases”). Depp claimed to have suffered through the defamatory statement and through a longer history of abuse by Heard. His fans framed him as a hero and a victim, using the social media hashtag #HeardIsAnAbuser. On the other hand, they refused to believe Heard’s claims of having suffered abuse. This determination was based at least in part on Heard’s vocal performance and courtroom testimony, with detractors hearing duplicity in her exhalations, her rapid pace, the occasional firmness and confidence of her tone. As one Depp supporter commented on a video of Heard’s testimony, “There’s no way a victim sounds like this.”
Yet in a key strategic move, Depp’s lawyers chose to make Heard sound precisely as sexual assault victims often do during trial. Seeking to dismantle her credibility, they looked to the toolkit of how to deal with a victim in court, mobilizing a well-worn set of legal techniques used to interrogate survivors of sexual violence. In one cross-examination, for example, the plaintiff’s counsel declares that Heard’s “lies have been exposed to the world multiple times.” This claim is then manifested through a series of vocal disciplinary tactics to undermine Heard’s testimony and depict her as a false witness.
For instance, the lawyer, Camille Vasquez, repeatedly employs a common interrogation technique of speaking over and cutting off Heard as she is replying to a question. As legal scholars and sociologists have shown, such techniques are often used in sexual assault cases to intimidate and shape perceptions of the complainant. In a pioneering study on courtroom talk during rape trials, Gregory Matoesian, in Reproducing rape: Domination through talk in the courtroom (1993) describes how lawyers reproduce patriarchal relations of dominance and subordination by “usurping” the witness’ ability to respond (186). As he notes, questions—wielded like weapons of attack by skillful lawyers—are more powerful than answers.
Vocal technique and dynamics are key here. In Vasquez’s cross-examinations, she repeatedly raises her voice to interrupt Heard, disciplining her before the jury and spectators. She laughs at her testimony and infantilizes Heard, at times speaking to her in calm tones before quickly shifting to a harsher timbre. At one point, Vasquez snaps her notes shut and walks back to her seat while Heard is still answering her question. Heard is forced into abrupt silence. Unable to respond to the question she was asked, she audibly loses control of the narrative being spun. Vasquez also frequently speaks over her and directly to the judge, objecting that Heard is being non-responsive. The lawyer performs for the judge and jury her refusal to listen to Heard.
At other moments, Vasquez’s voice and affect telegraph exasperation, as she audibly sighs while Heard attempts to answer a question. As Heard and Vasquez go back-and-forth over a line of questioning, Vasquez’s voice bristles with irritation as she speaks in clipped tones, with sharp inflection at the end of each line: “Yes?” “Right?” “Yes or no?” These interjections add an aural layer of interpretation to Heard’s testimony in real-time, guiding the jury to hear the witness as evasive and therefore unreliable. Vasquez’s expressions are all part of a careful vocal strategy, implicitly saying to the jury, “Can you believe this woman?”
Of course, the answer is no. Jessica Winter, writing in The New Yorker, points out that Heard lost in part because of her “tearless crying,” the fact that she appeared insincere. Winter acknowledges that successful testimony is about “affect and presentation”, a reality that is no secret. In fact, jury instructions in Depp v. Heard clearly state that determinations of witness credibility are based in part on witnesses’ “appearance and manner.” Jurors must use their “common sense” to “determine which witnesses are more believable.”
But how is “common sense” established? Listening closely to this trial reminds us that such understandings are constructed and regulated through sound as well as through determinants of “appearance and manner,” both in and out of the courtroom. Vasquez’s performance, Heard’s subordinated testimony, and the commentary of millions of avid consumers underline that Heard and Depp sound to many people exactly as common sense and conventional norms would dictate.
A woman claiming abuse and assault at the hands of a more powerful man is always subject to patriarchal ways of listening, even if she is rich, famous, straight, and white. These ways of listening are contradictory. Research shows that “masculine” voices are heard as more authoritative and dominant, while women are often heard as weak, uncertain, lacking confidence. The public ear hears other racialized and gendered voices through similar power inequities, including queer, nonbinary, and LGBT voices or voices of people of color. In the context of sexual assault adjudication, however, Heather Hlavka and Sameena Mulla show in their Law & Society Review article “That’s How She Talks”: Animating Text Message Evidence in the Sexual Assault Trial” “that a confident voice and calm performance can work against a victim-witness in court, by suggesting that she is not passive or meek enough to be a ‘real’ victim.” On the other hand, they note that a victim-witness who cries on the stand may give the impression of performing or acting. Lawyers audibly manipulate these perceptions, as the examples here show, and men (particularly heteronormative, white men in positions of power) reap huge benefits from them.
Many observers of Depp v. Heard have noted the toxic social media sludge around the case, as well as the danger that the verdict poses to survivors of domestic abuse and sexual assault. But listening closely to the proceedings shows us that these outcomes aren’t random and aren’t just part of informal processes like trial by Tik Tok.
Instead, formal court proceedings manipulate and mobilize social scripts around survivors of sexual assault and domestic violence, and around women and marginalized others, to reach their outcomes. We can hear how this strategy plays out through sound and voice, from sighing and interrupting to laughter and silence. The jury instructions in Depp v. Heard state that “Our system of law does not permit jurors to be governed by sympathy, prejudice, or public opinion.” But despite claims that the legal system is based on objectivity and impartiality, we can hear that the law never exists in a bubble – and lawyers often and successfully rely on this very fact.
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Featured image: “Courtroom” by Flickr user Karen Neoh, CC BY 2.0
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Nomi Dave is a former lawyer, interdisciplinary researcher, and co-director of the Sound Justice Lab at the University of Virginia, where she is Associate Professor of Music. She is currently co-writing and co-directing a documentary film, Big Mouth, on a defamation lawsuit connected to a sexual violence case in Guinea.
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“People’s lives are at stake”: A conversation about Law, Listening, and Sound between James Parker and Lawrence English—Lawrence English and James Parker
Vocal Gender and the Gendered Soundscape: At the Intersection of Gender Studies and Sound Studies—Christine Ehrick
Or Does it Explode?: Sounding Out the U.S. Metropolis in Hansberry’s A Raisin in the Sun—Liana Silva
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A Feast of Silence: Listening as Stoic Practice
In honor of International Podcast Day on 30 September, Sounding Out! brings you Pod-Tember (and Pod-Tober too, actually, now that we’re bi-weekly) a series of posts exploring different facets of the audio art of the podcast, which we have been putting into those earbuds since 2011. Enjoy! –JS
Zeno of Citium, the Hellenistic philosopher who founded the Stoic school at the turn of the third century BCE, once had this advice to give to a garrulous young man: “the reason why we have two ears and only one mouth is so that we might listen more and talk less.” The more we speak, Zeno was saying, the more self-absorbed and foolish we become; in learning to listen, we temper our own egos and attune ourselves to the truths of the world around us.
This piece of wisdom from a 2,300-year-old philosophy was a part of the marketer and best-selling author Ryan Holiday’s reflection on stillness and silence on the October 4 edition of his Daily Stoic podcast, a daily affirmational that brings listeners “a meditation inspired by the ancient Stoics illustrated with stories from history, current events, and literature to help you be better at what you do.” In citing Zeno, Holiday’s point was that while our highly mediated culture often rewards loudness, extroversion, and “hot takes,” we might do better to listen, and learn from others, rather than simply talk over them.
Over the past decade, Stoicism, which teaches that self-discipline, moderation, and emotional equanimity are key to overcoming hardship and living a good life, has had something of a revival as a self-help paradigm – and Holiday has been one of its most energetic evangelists. Articles in Vice, the New York Times, the Atlantic, the New Yorker, the Guardian, Forbes, Wired, and Sports Illustrated have all taken note of his influence among Silicon Valley tech workers, corporate executives, professional athletes, military personnel, and celebrities to whom he markets the philosophy as a “life-hack”; his six best-selling books on the subject, meanwhile, have positioned him as perhaps the most commercially successful author in a mushrooming genre of Stoic literature; and The Daily Stoic’s A-level guest list, which has included Malcom Gladwell, Camilla Cabello, Matthew McConaughey, and Charlamagne Tha God, has established Stoicism’s cultural cachet as a practical guide for living, and positioned Holiday as its authoritative interpreter.
Among the lessons Holiday draws from Stoicism, the practice of stillness (as his 2019 book puts it) is key: a way of quieting the mind, of “hear[ing] only what needs to be heard,” and really listening to the truth of the world in order to achieve the kind of tranquility (what the Greeks called apatheia) that will help us “think well, work well, and be well.”
With this emphasis on stillness, silence, and listening, it would seem quite appropriate that Holiday would turn to the aural medium of podcasting to proclaim the ancient wisdoms of Zeno, Cleanthes, Seneca, Epictetus, and Marcus Aurelius. Indeed, for the Stoics, listening was a foundational skill through which one cultivated the habits of discipline, self-control, and self-reflection that are the heart of the Stoic way of life (askesis); for it is in quieting ourselves and listening that we begin to open ourselves to the teachings of the masters and think about their application in our own lives.
And Holiday is hardly the only Stoic podcaster. As I write this, a simple search on Stitcher yields over 30 podcasts with “Stoicism” in their titles or descriptions, many of which have been updated in the past month (December, 2021), including the philosopher Massimo Pigliucci’s Stoic Meditations, Stoicism Discovery, Stoicism on Fire, The Sunday Stoic, The Stoic Handbook, The Walled Garden, Stoic Coffee Break, and Stoic Solutions.
Elsewhere, Stoicism has been promoted by self-improvement podcasters like the tech investor and lifestyle guru Tim Ferriss,and retired Navy SEAL and leadership coach Jocko Willink; and – perhaps unsurprisingly, given that the ancient Stoics were white men who emphasized values like rationality and self-mastery, which are typically coded as male – it has been advocated as a tactic for modern living by masculinity podcasters like Brett McKay and Ryan Michler.
Navigating this space can often feel like a small world (or, perhaps a promotional circuit): Holiday has been a guest on The Tim Ferriss Show, The Art of Manliness, and Order of Man, and has hosted Willink, McKay, and Ferriss on The Daily Stoic.
A full exploration of this network is outside my scope here. For now, I will consider the ways in which podcasting is particularly well-suited to Stoic askesis; and specifically, how the very act of listening – on our commutes, on long drives, at the gym, on hikes, and in moments of quiet meditation – constitutes what Michel Foucault (who himself drew upon Stoic texts in his later work on ethics) called a technology of the self: those techniques, “which permit individuals to effect by their own means or with the help of others a certain number of operations on their own bodies and souls, thoughts, conduct, and way of being, so as to transform themselves in order to attain a certain state of happiness, purity, wisdom, perfection, or immortality.”
Part of a larger project investigating the historical emergence of discourses of sex and sexuality in Western culture, Foucault in his later writings and lectures turned his attention away from the normative and disciplinary systems of subjectivation that had previously concerned him, and toward the study of ethical modalities by which individuals actively fashioned their own subjectivity. Focusing particularly on the ethical practices of the ancient world, he discovered a more autonomous framework for individual conduct, one that centered on self-imposed standards and daily habits rather than a prescribed moral code.
This precept of the “care of the self” (epimeleia heatou), Foucault maintained, could be traced from Alcibiades to the Imperial period, and had impelled individual Greeks and Romans (the free white men, at least) to embark upon their own stylized projects of self-transformation.
Among the practices that interested Foucault – and indeed, the one he understood to be essential to the “subjectivation of true discourse” – was the act of listening. In the first hour of his March 3, 1982 lecture at the Collège de France (published in English in The Hermeneutics of the Subject), for example, Foucault explained that listening is
the first move in as[k]esis … since listening, in a culture which you know was fundamentally oral, is what enables us to take in the logos, to take in what is said that is true. However, if conducted properly, listening also makes it possible for the individual to be convinced of the truth spoken to him, of the truth he encounters in the logos. And, finally, listening is the first moment of the process by which the truth which has been heard, listened to, and properly taken in, sinks into the subject so to speak, becomes embedded in him and begins to become suus (to become his own) and thus forms the matrix for ethos (p. 332).
This emphasis on listening, Foucault noted, is evident as far back as the Pythagoreans, who required initiates to spend five years in silence so as to be able to learn the community’s exercises, practices, and philosophical precepts. The themes of silence and listening were further developed in the culture dominated by Stoicism, Foucault noted, and emerged as a “new pedagogical game” that contrasted with the earlier dialogic model. Now, the master spoke, and the student listened.
But the nature of audition could be somewhat ambiguous for the ancients, Foucault explained, in that it was a passive (pathetikos) activity, yet it is the primary sense through which we receive the logos, the rational substance that the Stoics believed to govern the universe. In his treatise On Listening, for instance, Plutarch (46 CE – c. 116CE) wrote that it was imperative for young men cultivate the art of listening because they must learn to listen to the logos throughout adulthood, and so must learn to distinguish truth from the artifices of flattery or rhetoric. One must listen to the words of the master attentively, so that the logos might penetrate the soul. “The man who has the habit of listening with restraint and respect,” Plutarch wrote, “takes in and masters a useful discourse, and more readily sees through and detects a useless or false one, showing himself thus to be a lover of truth and not a lover of disputation” (On Listening, IV).
Perhaps the most striking of the texts Foucault discussed, however (see The Hermeneutics of the Subject, pp. 343-344), is Philo of Alexandria’s (20 BCE – c. 50 CE) description of the practices of the Therapeutae, a closed community of ascetics who renounced their earthly possessions in order to pursue “perfect happiness,” and the salvation of their soul (De Vita Contemplativa, §12). In his text, Philo takes specific note of the group’s elaborate banquet rituals, during which an elder comes to the fore and gives a discourse on philosophical doctrine or on sacred scripture (“teaching very slowly, lingering and emphasizing with repetitions, engraving the thoughts on the souls” [§76]). During these talks, the audience remained silent and motionless, adopting a precisely prescribed posture intended to fix their attention on the speaker, so that the discourse “does not stay on the tips of the ears, but comes through the hearing to the soul and there remains securely (§31).” In these feasts of silence, mastery of the body is the foundation of the care of the soul.
Though modern Stoic podcasting does not demand nearly this level of physical discipline of its listeners, we are nevertheless encouraged to incorporate podcasting into a daily ritual of silence and reflection – a new, digital feast of silence. As we listen through our headphones, in our cars, or in some other quiet personal space, we are joined in intimate connection with our hosts, who guide us in our contemplation of timeless Stoic wisdoms, engraving these thoughts in our minds so that we might have them ready at hand in order, as Holiday often says, to make them the principle of our actions.
It is this possibility of principled living that is perhaps at the heart of Stoicism’s twenty-first century appeal. As Elizabeth J. Peterson has written, in our age of seemingly perpetual crisis, Stoicism’s resurgence is undoubtedly due to its reputation as a practical guide for surviving difficult times. “Between President Trump, Brexit, the Middle East and the domestic issues in virtually every country,” she writes, “it’s not difficult to see why many people, across the world, need a source of clarity, calm, and fortitude.” (And that was before the pandemic, which occasioned a spate of articles explaining how Stoicism might help us endure a moment of profound uncertainty).
But the headlines aren’t the only source of our anxieties; we have plenty of it in our own lives. At a time of deepening economic precarity, in which we are routinely urged to become self-reliant, self-enterprising subjects in order to maximize our value in the marketplace, Stoicism offers a ready-made coping mechanism with a pedigree of centuries: at once a framework for cultivating emotional resilience, and a self-help paradigm for transforming ourselves into more disciplined, effective, and successful individuals.
When co-opted by late capitalist culture, when marketed as a “life-hack” and configured as an ethics of personal success, then, Stoic principles quite easily align with neoliberal imperatives that we endlessly labor on ourselves in order to better compete in an agonistic struggle for personal fulfillment and economic security. From this perspective, even the advice that we embrace stillness becomes a way of momentarily refreshing ourselves, only to return to work to “persevere” and “succeed.”
One of the most trenchant critiques of Stoicism is that by advising us not to concern ourselves with that which we cannot control (see Epictetus, The Discourses, 2.5.4-5), it is fundamentally a philosophy for living in the world as it exists, and not for challenging it (indeed, Stoicism’s popularity among the Roman elite indicates something of its congeniality with the established order). And while, as Sara Ahmed has written, “neoliberalism sweeps up too much when all forms of self-care become symptoms of neoliberalism,” it is nevertheless worth considering how an ostensibly self-directed ascetic practice is complicit in more hegemonic (neoliberal, patriarchal, and misogynistic) templates of subjectivity.
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Featured Image: “Marcus Aurelius Headphone Stand!” by JM3is3D @Etsy. Image used for purposes of critique.
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Andrew J. Salvati is an adjunct professor in the Media and Communications program at Drew University, where he teaches courses on podcasting and television studies. His research interests include media and cultural memory, television history, and mediated masculinity. He is the co-founder and occasional co-host of Inside the Box: The TV History Podcast, and Drew Archives in 10.
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Deep Listening as Philogynoir: Playlists, Black Girl Idiom, and Love–Shakira Holt
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